It will not surprise you to find I disagree. And I suspect that you probably disagree with this more than you realize. Let’s do a thought experiment: suppose that, after years of arduous study, science determines with perfect certainty that there are no adverse public health consequences to necrophilia. Further suppose that there exist eccentrics who wish for their corpses to be used for sexual purposes, and include such instructions in their will. Can government nonetheless legitimately ban necrophilia? I’m not asking for constitutional analysis here – I’m asking for your view as to whether that would be a legitimate public policy choice on the part of government. **
Imagine we live on Mars, or that we have three heads, or Avril Levigne is a talented, soulful artist. You can posit all kinds of crazy, wacked-out scenarios if you wish (and yes, I grasp the irony of me saying that after my hypothetical above). But the simple reality is that the American people are by and large not comprised of Gacys, Phelps, et al. Those guys are in the minority of even the smallest governmental unit. **
I can think of a number of textual bases to invalidate this without even reaching for the obvious candidate of the free exercise clause. **
You will be unsurprised to find that, while I think such laws are unimaginably stupid, I do not think them unconstitutional (at least not without relying on established precedents with which I also disagree, e.g., Griswold and its progeny). **
Just because I find a particular moral standard troubling does not mean a law based on that standard is unconstitutional. Furthermore, thanks to the genius of the federal system, I do not have to stick around in a state which subscribes to moral standards I find appalling.
Actually, the problem isn’t that there is a small minority fired up about keeping the sodomy laws; it’s that the laws have been on the books a long time, and apathy and inertia rule the day. Ironically, it’s probably a bad thing that these laws aren’t enforced very often – without the negative PR from television footage of fine, upstanding gay people forced to do the perp walk for no better reason than their sexual practices, it’s easy for politicians to take a “let sleeping dogs lie” approach to the issue.
Having said that, the trend is towards repeal – forty years ago, every state had an antisodomy law; by the time of Bowers, that number had dwindled to 25; before yesterday’s ruling, the number stood at 13. I have little doubt that Texas and the other states with these laws on the books would have eventually voted for repeal.
Consider that even Georgia repealed its law, the same one that the SCOTUS upheld in Bowers. Granted, it was at the behest of the state supreme court, finding the law violated the state constitution. But Georgia Supreme Court justices are elected. Six of seven justices evidently did not feel their political careers would be jeopardized by throwing out the sodomy law. The times, they are a-changin’. I hardly think the court’s intervention in this matter was necessary in the long run.
Ah yes, what matters that the rights of today’s gays and lesbians are being violated? In all probability, their grandchildren will be free of such concerns. :rolleyes:
By your reasoning, the Lovings should have just left Virginia, and anti-miscegenation should have been allowed to continue on its merry way until state legislatures got around to repealing it. Which, in the case of Alabama, took till 2000. And that outcome, with all the denied rights it entails, you hold to be preferable to dragging racists (and now homophobes) into the 19th century, kicking and screaming their moral approbation of those unamerican sentiments of liberty and justice for all, merely because it involves the Supreme Court adopting a generous reading of the protections granted personal liberties by the Constitution?
Bah. A pox on all those who think they should have a say in how other people behave in private (with all the usual caveats about harm and consent, naturally).
Wow. Thanks for the lesson. I never figured that part out, because I thought all those dead soldiers and injured veterans was all about creating an income for people like myself. Boy do I feel stupid, now. Thanks for the clarification.
Forgiving your omission of the “without due process of law” phrase (which is a pretty big part, as Scalia points out) and a reference to the Equal Protection clause which, with the exception of O’Connor’s opinion didn’t really come up, I appreciate the history lesson. You’d have thought I’d never read Rouseau, the Federalist papers, and the overwhelming rhetoric of the majority opinion.
Which, once again, further illustrates the underlying problem with the majority opinion, which gives no solid legal basis, nor the all-to-critical definition of what right they are recognizing that the statute infringed upon. As your example points out, abortion deals with a discussion of defined rights, i/e the rights of the potential human life to live and the rights of the mother to choose to have a pregnancy to term. And SCOTUS has stuck to a balancing test that allows State’s to regulate 3rd trimester abortions, but not to for 1st trimester abortions (I am fully aware I am simplfying the issue). In the Lawrence case, the majority opinion never gave a definition of what liberty right was being infringed. The right to sodomy? The right to be homosexual? Nor did they conduct the legally required (or so I thought) analysis for their decision. Is this here-to-for undefined right a FUNDAMENTAL right? Is it a right that can be regulated, as long as the government finds some sort of rationale basis for infringing upon it?
First, I do not find the blantant refusal of the majority opinion to use firmly established legal tests to reach the proper disposition to be “nitpickery”. SCOTUS opinions, moreso than any other court in the land, should provide guidance to courts, and the citizens, as to what they can expect, and how they should legally analyze issues like this when they arise. In this case, the majority ignored those concerns and basically said, “This statute infringed upon some right that may or may not be fundamental, and there was no overiding basis for the statute.” It is almost ridiculous how hard the opinion tried to avoid giving any guidance to any other court, or to future SCOTUS courts, as to what the hell they were doing.
This particular statute was recriminalized in 1993 (by a Democratic legislature) during a complete overhaul of the Texas penal code. It was signed into law by Democratic Governer Ann Richards. So, the issue came before the legislature in 1993, and they made their choice. Ok, that’s 10 years ago. Maybe times have changed significantly, and polls taken 10 years ago would have been very different than the ones today. I don’t know.
However, this case clearly awoke the sleeping dog so-to-speak. While it was wending its way through the courts, there was a vigorous debate going on in Texas about the law.
According to the article, with regards to then Governer Bush…
Unless there some legal reason which I’m not aware of, the legislature and Bush could have repealed the law while it was wending its way through the courts. They could have removed the judgments against the defendents. They actively chose not to, in order to appease a vocal minority.
If the government of the state of Texas is going to make statements saying that they plan to keep abridging a fundamental right* of a minority because another minority wants them to, then I am really glad the Supreme Court uses whatever legal reasoning needed to override them.
*When I use the term fundamental right, I mean in the larger “human rights” sense, not in a legalistic constitutional right sense.
I wouldn’t read anything into that. That “recriminalization” was merely the codification of what is now the Texas Penal Code. Codification is an ongoing process, whereby the Lege takes the old Texas Civil Statutes–a huge, unwieldy, and thoroughly disorganized mess–and “codifies” them by grouping like subjects into appropriately named volumes. Thus, when they codified the Penal Code in 1993, they just gathered all the hundreds of existing criminal statutes, organized them, and slapped them all into a single volume. It is a matter of pure housekeeping, with no debate or consideration given to the substance of the statutes being codified. If a legislator wants to change the substance of a law, it would require a separate bill going through all the usual legislative channels. Obviously, none ever got through in the case of the sodomy statute.
Ok, fair enough, minty. I stand corrected. I will add though that the original arrests took place in 1998, and it’s been close to five years.
In April 2001, a bill to repeal the law passed a Texas house committe. Yet here it is 2 years later, and still no repeal. I realize legislation takes time, but given the ongoing court case, if the legislature had really desired to (a) repeal the law and (b) repeal the law in such a way as to prevent creating a new constitutional right, then they should have gotten their act together and done so.
With the current governor, Perry, making statements to the effect that he saw no reason to change the sodomy law, I’m hard pressed to believe the state had any intention of coming around any time soon.
I see this as a strength. Justice to some people is nothing short of the type of “social and environmental justice” that is trumpted mostly by far-left socialists. Justice to others is imposing the death penalty for drug dealers, the sort of thing only the most far-right social conservative might propose. Justice is a muddy concept.
The letter of the law is the letter of the law. When people’s changing views of justice lead them to believe the law unjust, we have a mechanism for changing it, it’s called the legislative branch. Not the judicial branch. Laws only exist and are enforceable within the framework of the Constitution. When the very framework of the Constitution is no longer compatible with the overwhelming majority’s notion of justice, they have a mechanism for changing that too. All of these mechanisms take careful deliberation, and go through an established process designed to ensure that the changes do indeed represent a fundamental shift in the people’s notion of justice. The textualist judge preserves this, and leaves the power with the people and the safeguards of process in place.
One purposivist justice wielding a pen can circumvent the whole thing just to meet his/her own peculiar notion of justice. Doesn’t sound very democratic to me.
I see. So then, may we take it that you heartily disagree with the Supreme’s “purposivist” (what a ghastly word!) interference with the 2000 election?
You might also, as well, disdain Brown vs. Board of Education since, after all, this is an assertion of a “peculiar notion of justice.” And, pray tell, if the aggrieved citizens are being denied thier right to participate in legislation, thier voting rights being curtailed, to whom might they beseech relief? They are being denied the very mechanism you (rightly) hold so dear.
The Constitution is a framework, it is not Holy Writ. “Strict constructionism”, like all forms of fundamentalism, is intellectually retarded and retarding. If Vermont should pass a law assessing the death penalty for cloning a sheep, shall the Court remain silent because there is no mention of cloning in the Constitution?
Whenever I argue that taxation of my income is without my consent, that it amounts to putting a gun to my head and opening my wallet, people are quick to point out A) that taxes are approved by the democratic process, and B) that by continuing to live in the US I have given the US government consent to govern me, and if I don’t like it I can move somewhere else. I get the same arguments against me when I decry state laws against gambling, prostitution, “blue laws” regarding alcohol sales, and anti-smoking regulations. If I don’t like it, they say, I can move somewhere else.
Now, as a libertarian who doesn’t believe the government has any right whatsoever to impede the personal and economic freedoms of those who happen to fall within it’s borders – that rights to life, liberty, and property can only truly be waived through express consent between freely contracting parties – I have no problem with the conclusion that he didn’t consent to be “governed” in this way. You may or may not be as comfortable with that as I am, of course.
Well, awkward or not, it is the word used in law school to describe such decisions.
I have not read the SCOTUS decision in Bush v. Gore, so I can make no judgment of what it’s merits were. If you’d like to link me to the full text, I can look at it and decide whether I would approve or not. In general, I disapprove of finding federal issues where there isn’t one, so on the face of it, I would guess that I probably do not agree with the court’s ruling to that extent. It was a state matter, and even if the Fla Court went and made an outcome-driven ruling in favor of Gore, then no matter how much I might not like it, no matter how glad I am that I’m not paying a $5 per pack cigarette tax pushed through by President Gore, it’s still a state issue. But again, without reading the SCOTUS decision, I can’t say with any certainty what I think of it.
Again, haven’t read Brown, so I have no idea whether I agree with the reasoning.
As for the voting issue, who is allowed to vote is explicity spelled out in the Constitution, which makes it a clear-cut federal issue, so I have no problem with them addressing that. The way this government is set up, for better or worse, is that the “right” to vote has the scope given it by the government itself. 16 year olds can’t vote here in Missouri, and if they wanted to vote they’d have no way themselves of changing the law through direct action. If they sought federal relief they would lose, as the Constitution clearly says the right may be deprived of those under 18, that it may not be deprived on basis of race or gender, and so on. The Constitution spells out which people may be denied the vote, which may not, and the state is free to craft its laws within that framework. I would wholly disapprove of a SCOTUS decision that just decided ex nihilo to create a right of 16 year olds to vote, when there’s no source for that right in the Constitution.
Not because there’s no mention of cloning, but probably because there’s no federal issue. At least I don’t see a federal issue, unless we want to argue that the death penalty (or its application here) is “cruel and unusual punishment.” Under stare decisis, that would presently be a losing argument, since there’s a holding directly on point saying that it isn’t. I am myself a devoted opponent of the death penalty, but I’m not sure that’s the way I’d want to fight it (I’d prefer to strike it down at the state level, or pass a Constitutional Amendment, or elect governors and Presidents who will commute all the sentences down to life.) That the punishment is so outlandishly excessive in comparison to the criminal act doesn’t seem to stop states from throwing marijuana peddlers into jail for 20+ years. Perhaps there is a line of cases that would create a federal issue, but otherwise the federal court system would lack subject matter jurisdiction and couldn’t take the case.
I’m just not into sacrificing the rule of law and turning judges loose, whether it furthers my personal preferences or not.
I do believe that this is incorrect. While the US Constitution does forbid denying voting rights on the basis of race, gender, and age over 18, states are free to deny voting rights on any other grounds. If I’m mistaken on this, feel free to cite the relevant bits of the Constitution that I’m overlooking.
IIRC, his argument was that the Court declined to do in Casey what he belives it did in this case, overturning a prior decision based on society’s evolving normative valuations. He figures that this case alters the Court’s approach to stare decisis.
I may be overthinking this, but I suspect what he’s doing is dropping little hints. I suspect he’ll keep doing it, whenever he has the chance, to give us an idea of the right arguments to make in court when we challenge Roe down the road. (By “we” I mean a hypothetical set of pro-life attorneys at the time of the challenge, even though I personally have no reason to believe I would ever be directly involved.) Obviously he’d prefer (as would I) to simply eliminate substantive due process altogether. But in lieu of that, he’s spelling out some of the consequences of the way the court is treating that issue, and how it’s treating precedent on that issue.
I guess I didn’t say that as clearly as I wanted to, because you’re right. I mentioned 16 year old voters here in Missouri as an example of people who could get the right to vote if Missouri passed law reducing the voting age, but who are presently being denied it. I meant to say what you are saying, but was a bit too vague about it.
Indeed! This is one of the most deliciously ironic things I’ve ever heard. Anyone have any idea how I can address a congratulatory telegram to this anti-heroic “assbag”?
Oh, what silly self-flattering federalist nonsense. States routinely and quite cravenly do the dirty work of rabid fundies and other such populist cretins, and I, for one, am damned proud of America at its best when more enlightened and educated folks like Federal judges and Federal agencies overrule those clowns! And I’ll bet more than a few of those very same cowardly clowns are secretly delighted to be overruled so they can lie to Pastor Bob about the evils of the “homosexual social agenda” while also being able to live more easily with themselves.
While there is certainly much to debate about the Court’s decision in Election 2000, the fact remains that there is an equal protection clause in the constitution. We can argue over whether that clause ought to apply to standardless manual recounts or not, but there is a textual basis for the court’s opinion. **
Again, there is such a thing as the equal protection clause, and while there is much to criticize about the particular reasoning in Brown, its final result is widely accepted by strict constructionists as the correct application of that particular provision of the Constitution. **
The 15th, 19th, 24th and 26th amendment as well as all relevant federal and state voting rights legislation. **
In the benighted worldview of a bygone era – which is when these things were passed in the first place – such an act wouldn’t have been “crazy shit.” It would have been decidedly normal.
But anyone who follows the winding history of constitutional law knows that it’s full of what can only be called “crazy shit.” It’s a fool’s wager to suggest that we’ve seen the end of crazy shit from the judiciary.