Imagine not accusing opponents of the concept of substantive due process of narrowmindedness and stupidity.
Imagine all the people, living life in peeeeeeaaace…
This just shows the shallowness of your understanding of the idea behind strict constructionism. What you call excessive fealty to the letter of the law, I call upholding the ideals of democratic self-rule and government by the consent of the governed.
People made exactly that criticism about Brown v. Board of Education when it was decided, especially concerning the sociological data that was included and considered in the decision. Is it really desirable, or even possible, to decide cases in a social vaccum?
I guess I’m just a bigger fan of representation reinforcement* than Justice Thomas. I think the majority is dead-on.
*"[A] process-based notion that the courts should use judicial review aggressively only when the electoral process has broken down or is tampered with or when litigants are deemed not to have a fair chance to achieve change at the ballot box, either because of hostile laws or because of prejudice against them." Peter Linzer, The Carolene Products Footnote and the Preferred Position of Individual Rights, 12 Const. Commentary 277, 278 (1995)
My point exactly. I am exceedingly happy about yesterday’s opinion, but you don’t hear me going around claiming that it was the only honest outcome and that everyone who disagrees is a dishonest doodyhead.
I’m certainly happy for you that the Tyranny of the Masses doesn’t bother you, Dewey. When your rights are infringed by a majority because of bigotry, self-rule is taken away from you. Thankfully the Constitution was written to protect the minority. Or as Justice Kennedy wrote
It’s the principle of the thing that matters, which, as elucidator points out, is Justice.
That quote, by the way, is almost exactly what I argued in one of our previous 14th Amendment debates: The people who drafted and ratified the amendment knew damn well that “equal protection” and “due process” were in no way self-defining. They kept them that way intentionally, knowing that the courts would have to give them meaning in specific cases. Yesterday’s decision fulfills that intention quite admirably, even though I’m sure the Radical Republicans of the 1860s never would have given a second thought to its potential impact on homosexual sodomy.
You know, Dewey, I have a feeling that anything that I say regarding Constitutional interpretation will sound like an attack on the ethics of your position, and I can very well grasp the concepts on which you base your mode of reading – they don’t differ, in basic principles, from my own, though how we apply them does vary greatly.
My own position is that “We the people”, through the Constitutional Convention and several Congresses since, made and established a Constitution which by and large spelled out some basic principles under which we would be governed by persons chosen by ourselves through the electoral process and by those whom they named to positions in accordance with law – and that the general principles were purposefully written in broad terms, with specific procedures only specified to ensure that the overall mechanism would work.
There is no constitutional definition of what is a “privilege and immunity” of an American citizen; there is no constitutional definition of what constitutes “due process of law”; of what is a “cruel and unusual punishment”; and, of course, nobody has ever enumerated the “other [rights] retained by the people” which should not be disparaged.
Specifically setting you, the late Mr. Goldwater, and a few other honest people to one site, I have formed the impresssion that “strict constructionism” means to most of its supporters that a legislature may violate the Constitution with impunity, since we may only apply such language when we know what it means, and the courts are not privileged to say what it means, but only the legislature – which may decided that “freedom of speech” does not include saying things with which it disagrees, that anything it decides to make a crime is ipso facto legitimately a crime, that “due process of law” means whatever the prosecutor wishes it to mean, etc.
I can point you to a community of conservative Christians who believe gay sex is a sin and would happily inform most of our gay members here that they are trading off momentary pleasure for eternal torment, but who agreed with what Kennedy had to say for the most part, because they believe in the idea of liberty and the freedom to make your own choices in life.
YMMV.
But surely you are aware of the problem of pure democratic self-rule when it is applied to a majority simply abusing or burdening a minority. Isn’t that why we HAVE a bill of rights, vague and ambiguous and all?
Out in California, Nike was sued on allegations that its press releases on conditions in its overseas factories contained falsehoods. The plaintiff’s theory is that the press releases were the equivalent of advertisements, and therefore the laws concerning false advertising applied. Nike asserts that its press releases are not advertisements and are protected by the First Amendment.
But there ain’t gonna be a debate on it, at least not now. The Supreme Court dismissed its writ of certiorari as “improvidently granted.” In layman’s terms, the Supremes decided that they shouldn’t have taken the case in the first place, at least at this point in the proceedings.
It’s going back to the California courts for further proceedings, and may end up back before the Supremes in a few years.
Sua
How did the bill of rights get into the Constitution? It didn’t appear fully formed out of the ether, you know. It’s the product of democratic government – specifically, the amendment process.
I firmly believe in enforcing the textual provisions of the constitution precisely because that is in the interests of self-rule – those amendments represent agreed-upon limits to the ordinary legislative process. That’s the deal we made with each other when we chose a constitutional system.
It’s when the courts start going beyond the terms of that deal – adding provisions to which we haven’t agreed – that I start objecting.
Just to throw in my own two cents, now that I actually read the opinions.
I am extremely pleased with the disposition, but likewise extremely disappointed with the majority opinion. I think Scalia’s dissent, in which he points out
He is also correct when he points out that the majority dodged the issue of whether sodomy is a fundamental right, which is what the majority should have held, if they were to put forth a legally correct opinion. Instead, they used sloppy legal analysis and buttressed it with rhetorical (and, in my eyes, proper) flourishes to accomplish a goal that they could have accomplished by holding the statute to a higher level of scrutiny.
However, I disagree with Scalia on the issue of stare decisis, and the majority opinion did a fine job of explaining why Bowers should not stand. (I especially liked the quote: “Bowers was not correct when it was decided, and it is not correct today.”)He is also guilty himself of overblown rhetoric, especially with the “I have nothing against homosexuals” baloney.
When all is said and done, it is a fine outcome, but greatly lacking in sound legal analysis and sidestepping of the critical issue of whether engaging in sodomy is a fundamental right. Tack it up to yet another SCOTUS decision that plays fast and loose with the Due Process Clause. But I love the outcome.
And, as an aside, I’m glad I won’t have to be writing legal opinions for members of the board, since SCOTUS didn’t give any weight to the non-argument that the statute was “gender based” discrimination.
Both Bowers and Lawrence were framed in the question of whether there was a right to engage in sex acts proscribed by the state. But in neither case was this the underlying issue. In both cases an officer of the law entered into a private home in consequence of an extralegal circumstance – a warrant obtained under false pretenses in Bowers, a false complaint in Lawrence – and arrested the personse therein for committing a proscribed act under circumstances in which they had the reasonable expectation – and the constitutional protection under the Fourth Amendment – of privacy. Note that this is not the rather abstract and nebulous “right to privacy” that Dewey rightfully points out is nowhere specified in the Constitution, but the very clear right to be protectd in their persons and homes from unreasonable searches and seizures. Neither policeman had a constitutional right to be in a place where he could observe the two couples engaged in sodimitic acts in violation of the state laws.
Kennedy rightfully observed that people have the right to choose with whom they will associate, whom they will invite into their homes, with whom they will form intimate relationships that may cause them to wish to engage in sex acts, and that it is no business of govrnment to attempt to regulate these choices. He founds this in the Fourteenth Amendment guarantees of personal liberty, and I believe that I have just demonstrated First and Fourth Amendment grounds for reading this into the concept broadly guaranteed in the Fourteenth.
To delimit the constitutional question to whether or not a person may engage in a given sex act is to reduce the entire gamut of human sexuality to a mere biological function. A marriage license is not a licence to fuck; it means much more than that. Likewise, human beings make the choices to date, to say “I love you,” to kiss, and to go to bed together for a wide variety of very personal reasons that the state should not, and as of June 26, 2003 cannot, arrogate to itself the right to regulate.
That, not merely the question of whether people may or may not give and receive blowjobs and buttfucks, is why this is an important case, a decision for the ages.
Maybe my legal wires got crossed, but I think you’re a tad bit off base here, Poly. This case had nothing to do with how Lawrence and Gardner were caught, whether the police had the right to be there, nor any other Fourth Amendment Search and Seizure issue. And the confusion you show (or maybe I’m showing) over how to interpret the majority opinion further illustrates what a poor LEGAL opinion it is, and the lack of a sound legal basis for it. As far as I can tell from the opinion, the majority found some kind of undefined to be left alone and that the statute (note: not the actions of the police) violated it. I read the part of the majority opinion where they stated the liberty interest here is more than just where you put your sexual organs, and, quite frankly, it was the part of the opinion that just set my legal teeth on edge. I agree that the statute’s effect, indeed its very intent, was to make homosexuality a “bad thing” that should label them outcasts, and the majority rightly points that out. However, from a purely LEGAL analysis, the majority opinion is just another example of the tortured logic it takes to find a statute you don’t like unconstitutional.
I agree wholeheartedly that human beings are not defined by specific sexual acts, but the STATUTE they found unconstitutional was. They could have simply said: Yes, homosexual’s have the FUNDAMENTAL right to have sex with consenting adults. Then apply a strict scrutiny analysis to the statute and find that it didn’t meet the standard. Instead, they did the “soft law” thing and created a mishmash that includes the usual Substantive Due Process amalgam of ideas, sprinkles in a little Equal Protection, throw in some policy issues, look at history, and bakes it for a few hours. A fine recipe, but a poor legal opinion.
I didn’t get that out of the decision. I got that historical community views of morality are insufficient public policy basis. i.e. Sodomy is illegal because our forefathers objected to it. Most present-day citizens don’t, but we should keep it illegal because of the morality of the people who first established the law should be binding on future generations.
Morality changes through the life of a society. Laws based on morality should also change.
Enjoy,
Steven
The deal, to which we all agreed, was for as much fairness as possible. (Except for slaves and Indians…sigh…) The courts have the duty to overturn unfair laws, no matter how popular they might be.
Is anyone else overjoyed at the principle – if a little bummed by the direct beneficiaries – of the court’s rulings on retroactive changes in statutes of limitations? Even more than the ruling on gay sex, this one had me dancing in the street!
Trinopus
No. The Courts have the duty to overturn UNCONSTITUTIONAL laws.
While what you say is correct, Hamlet, in the most literal sense, the United States did not delcare its independence from Great Britain, fight a bloody Civil War, eastablish a Constitution and debate its amendments, and go forth to fight wars rainging from World War I (“Lafayette, we are here!”) to the recent liberation of Iraq from Saddam Hussein, in order that Dewey and minty might make a living at the expense of the rest of us debating how many angels can dance on a stack of U.S. Reports, but rather that the people of this land might have liberty unfettered by the predilections of those in power over them. To that end, they wrote those ideals into the documents that they established as the supreme law of the land, and they and we agreed to abide by them precisely because they do provide for equal justice under law. If a statute, no matter how firmly founded in the cultural mores, is found to deprive any of their fellow men of that liberty, they will be firm in agreeing that it be declared null and void. Even the controversy over abortions illustrates this, with one side holding that abortions deprive the unborn of their right to life, while the other side holds that making abortions illegal would deprive the pregnant of their right to choice. No one disputes these claims: rather, one side holds that the unborn are not legal persons with such rights, while the other side holds that the right of the unborn to live trumps the right of the woman to choose.
If ever a majority of Americans loses its respect for the courts as dispensers, not of Constitutional-law nitpickery, but of justice achieved through those ends, it will be a sad day for America. And those who revel in constitutional nitpickery might be forced to find honest jobs.
Which raises another question: why the hell was this case in front of the Supreme Court anyway? It should have been thrown out, not on the grounds that the Texas law is unconstitutional, but on the grounds that the police violated the defendant’s fourth amendment right to be free from unwarranted searches and seizures.