And absent contextual evidence about Santorum’s attitudes towards homosexuality, that is a perfectly reasonable reading of the words quoted in the OP. One need not abhor homosexuality to recognize that the argument put forth by opponents of the Texas law would necessarily protect other, less savory activities. **
I’ll put to you the same question I put to gobear: If the remarks in the OP (and only the remarks in the OP) were not made by Santorum – if they were made by some anonymous Pennsylvania Republican, and that person had not made any other comment regarding homosexuality in the interview or elsewhere, would you, on that basis alone, describe the speaker as a “homophobe”?
On their face, the words quoted in the OP are not necessarily homophobic. It is only with the addition of context that they become so. **
The quote in the OP does not compare homosexuality to anything. It points out the expansiveness of the argument put forth by opponents of the Texas law. As I noted, that argument would grant constitutional protection to sexual acts ranging from ordinary heterosexual missionary-position sex to the wildest Roman-style orgies. Noting that fact is not a “comparison” of missionary sex to Roman orgies. **
Ah, yes, the “it’s a gay thing, you wouldn’t understand” defense. Bullshit. That is the last resort of a failing argument.
Point of order: the quote in the OP did not include any statement about gayness being antithetical to anything; that came later in the thread.
Awhile back you said you didn’t think me a homophobe for making basically the same argument as that in the OP. I’m wondering why? Because you apparently aren’t willing to extend the benefit of the doubt to a hypothetical Pennsylvania Republican. Why are you willing to extend it to me?
I’m staying with this point because it is important. The logical conclusion to those who say the text quoted in the OP (and only that text) equates to homophobia is that anyone who makes that overbreadth argument against the constitutionality of the Texas law is necessarily a homophobe. That is fallacious. It simply is not so. One can oppose a law and still recognize it as constitutionally permissible.
Calling our hypothetical anonymous Pennsylvania politician a homophobe for nothing more than speaking the words quoted in the OP is the gay equivelant of playing the race card. It ought not be done, not here, not anywhere.
Because it is impossible to disagree with Dewey and Senator Santorum on a matter of constitutional interpretation without being a lying, cheating, low-down dirty son of a bitch, right?
Take a pill, Dewey. This sort of bullshit rhetoric is beneath you.
The only “bullshit” generated in this instance is by the federal courts electing to masquerade their personal policy choices under the guise of dubious concepts like “substantive” due process. SDP and its kin are just fancy ways of saying “we’re making it up.” That just isn’t principled analysis, they are faking it, and I’m not about to say otherwise.
But then, you knew that; we’ve been round and round on the SDP discussion in other threads.
FTR, I didn’t say anything resembling that the courts are “lying, cheating, low-down dirty son of a bitch[es].” That would be overheated rhetoric (not to mention putting words into my mouth). Intellectual dishonesty of the type I’m describing does not translate into being a lying, cheating, low-down dirty son of a bitch, no more than an aging athlete blaming external conditions on his diminished performances is a liar, cheater, or sumbitch.
I said the courts, should they overturn, would not be acting on the basis of principled legal analysis, though they would certainly talk as though they were. That’s pretty low on the rhetoric heat-o-meter. I’m frankly surprised you’re so animated by it.
So only Dewey and Senator Santorum are principled, and everyone who disagrees with their constitutional interpretation is intellectually dishonest, faking it, etc.? And this distinguishes them from being lying, cheating, low-down dirty s.o.b.'s how, precisely?
Take another pill, Dewey. In fact, take as many pills as it takes until you are capable of recognizing that your opponents’ position is honestly expressed and believed. Depending upon your opponents’ bad faith in a debate like this is counter-productive, not to mention poor manners.
The concept of substantive due process is intellectually dishonest. Nonetheless, I don’t doubt that many of its proponents seriously and sincerely believe in it. So do proponents of creationism believe in their particular fairy tale.
Is that “bad faith?” I’m not sure it is. I think most SDP proponents have just talked themselves into believing it makes sense because they prefer the outcomes it provides.
But really, minty, what do you expect me to do? Ascribe merit to a position when I think there is none to ascribe?
Um, no. No, it’s not. It is not anywhere in the universe outside of your deranged mind reasonable to read the remarks quoted in the OP as supportive of gay rights. You yammer and yammer and yammer some more about reading the remarks devoid of context. Newsflash, nitwit: it is impossible to read anything devoid of context.
Yes.
Yammer, yammer, yammer.
Of course it does. You admit yourself that you believe that the things listed by Santorum would “necessarily be protected” if the Constitutional right to privacy reaches consensual same-sex sodomy. Putting things on a list and saying they’re similar/alike is in fact drawing a comparison among the things on the list.
Is your restatement of what I said a deliberate lie or are you really this uncomprehending? One does not have to be gay to understand anti-gay bigotry. A number of the people in this very thread pointing out your asshattery are not gay. What I said was that I don’t think you have much experience with the struggle for gay equality. If you did, you would know that the “context” in which people make remarks like Santorum’s (even limiting it to the OP quote) is anti-gay. Just face up to the fact that you are wrong, wrong wrong on this and let it go.
SDP is the principle engine behind the creation of rights not found in the actual text of the constitution, including the right to privacy. The basic argument is that the due process clause is more than just a guarantee of procedures insuring that everyone involved has the right to be heard; rather, SDP proponents say, it is also a guarantee that the substance of a given law must also be metaphysically fair as well.
The problem, of course, is that metaphysical fairness can pretty much mean anything at all. The bottom line is that SDP gives the judiciary the power to veto laws not because of anything contrary to the text of the constitution, but because the judges do not favor the particular policy choices made by the legislature.
And indeed, SDP has a checkered past. It was used as part of the Dred Scott decision to forbid the federal government from making federal territories non-slave regions. It was used at the turn of the century to invalidate state laws establishing minimum wages and maximum hour rules for laborers on “freedom of contract” grounds. (Note this latter example well – freedom to contract is a policy I favor, but it is not for the judiciary to determine that policy)
Today it is used to invalidate laws restricting birth control and abortion and – if the opponents of the Texas law succeed – laws against particular sexual practices. Its use transforms the judiciary from mere interpreters of the Constitution into the ultimate arbiters of policy choices made by the legislature. And that cannot be condoned, not in a government that is supposed to be a constitutional representative democracy.
Since this is something of a hijack from the OP, I point you to these two threads where SDP has recently been discussed extensively (among other topics):
Thanks, dewey. I’ll read those threads and get back to you. While we do not agree on this issue, I would like to emphasize my respect and friendship for you.
Newsflash: I’ve specifically said for five pages now that with the addition of context – additional statements and actions by Santorum, including statements from the interview not included in the OP – could certainly make the quote in the OP homophobic.
But without that particular context – if the speaker had never said or done anything remotely antigay and had only spoken the specific words in the OP, that and that alone would not be sufficient to call the speaker homophobic.
**
Good lord. I’ve been making the same argument that the quote in the OP makes. Am I a homophobe? If not, why does registering with the Republican party and running for office in Pennsylvania change that analysis? **
The argument isn’t that homosexuality and adult incest are “similar/alike” in a moral sense. The argument is that they both represent consensual sexual relations, and if the constitution protects all consensual sexual relations, it necessarily protects both. That’s simply a truism.
Look, suppose the law wasn’t related to homosexual sodomy. Suppose it forbade titty fucking, and a similar challenge to the law arose using the same argument – that the constitution protects all adult consensual sexual relations. If Santorum had said that striking down the law on that basis would necessarily mean the constitution also protected adult incest, he’d be correct in his analysis there, too. And he wouldn’t be drawing a moral comparison between titty fucking and incest. **
:rolleyes:
Your argument is basically “you haven’t been kicked around enough to understand.” I still call bullshit. If you can’t plausibly explain why the text in the OP, standing alone, is homophobic, then you are wrong to call the speaker homophobic without additional contextual information. Taking part in the “struggle for gay equality,” whatever the hell that means, does not confer upon you some kind of special homophobe radar.
What bothers me most is the insertion of the bracketed context term “gay”. That context is not at all obvious from the whole interview. As it happens, the writer was Laura Jakes Jordan, who is married to Jim Jordan. Jim Jordan is democratic Senator John Kerry’s campaign manager. Kerry is running for president. Smells fishy.
All right! All right!! Next time I try to Pit someone I’ll go in guns a-blazin’ and consequences be damned! Consider me dead, surrendered, and lying at your feet. I told you folks I wasn’t any good at this.
Though I’m sure you will read those linked threads, gobear, I wouldn’t want anybody to think that Dewey’s explanation of substantive due process is anything resembling an objective description of the doctrine. With that in mind, allow me to correct his description where appropriate.
This is false. In fact, SDP is directly rooted in the text of the Constitution, namely the Fifth and Fourteenth Amendment guarantees of due process. Where political conservatives differ from the courts is the meaning and scope of those textually-defined guarantees. Since they prefer not to engage in the kind of hairsplitting and line-drawing required to give meaning to “due process,” the political conservatives like to claim that the rest of us are just pulling it out of thin air. 'Taint true. It’s right there in the Constitution: “due process.”
As for the “right to privacy,” this is a favorite boogeyman of the right. It derives from a passing phrase in one of the late-60s/early-70s Supreme Court cases, speaking of a “zone of privacy” into which the government cannot intrude without violating the defendant’s due process rights. The courts have never protected anything resembling the “right to privacy” that haunts Senator Santorum’s sleeping hours. See also slippery slope, below
This, to be sure, is the crux of the disagreement, though again spun from the political conservative (hereinafter, “p.c.”) p.o.v. A more accurate representation of the courts’ position is that rote adherence to judicial and andministrative procedures cannot cure fundamental substantive deficiencies. Put another way, due process applies not only to the procedures of the law (which is all the p.c.'s say “process” means, despite different dictionary definitions and the 14th Amendment’s legislative history to the contrary) but also to the substance of the law. The courts have never described those substantive deficiencies in anything resembling the term “metaphysical fairness.”
As you will undoubtedly see in the linked threads, the slippery slope is the p.c.'s favorite anti-due process argument. In fact, substantive due process protects very little: the right to procreate as one sees fit (including the underlying right for you to screw your brains out in a heterosexual fashion, and the right to choose not to reproduce at all), some sort of a right to raise children free of state interference (very limited, mostly related to education), and maybe/possibly/in certain circumstances the right to tell the government to fuck off when it tries to impose life-sustaining medical treatment on you. That’s it. Some slippery slope, huh? Chicken Little would be proud.
Utter nonsense. In fact, courts have repeatedly issued opinions explicitly or implicitly disagreeing with the legislature’s policy choices, but holding quite strongly that the policy choice does not violate due process.
One would think that the linkage of substance with due process in the middle of the 19th century would rather undermine the p.c.'s notion that this is some sort of latter-day plot by the judiciary to usurp the legislature. But it’s hard to fault them for attempting to associate the doctrine with such a notorious decision, even though the association rests on nothing more than a couple sentences that don’t have much to do with the case and were never followed by any subsequent Supreme Court decision that I’m aware of. And in point of fact, substantive due process did not emerge as a legal doctrine until decades later, after the 14th Amendment was passed, with the economic freedom cases of the late 19th century.
Note also that the linkage of property rights and due process in Dred Scott–and the later economic freedom cases–is also based in the text of the Constitution. After all, the guarantee is that no person shall be deprived of “life, liberty, or property, without due process of law.”
In fact, the main issue in the case currently pending before the Supreme Court is whether the Texas sodomy statute unconstitutionally deprived the defendants of equal protection on the basis of gender. Although substantive due process is half-heartedly in the mix as well, that argument was rejected in Bowers, and nobody expects the Court to overturn that holding. Trust me, this is an Equal Protection case.
But of course. That’s the role of the courts. When the legislature’s policy choice violates the Constitution, it gets struck down.
Ah yes, the appeal to totalitarianism. Right up there with the slippery slope.
I’m going to just refer our gentle readers to the thread listed above for most of minty’s points, since they are discussed ad nasuem over there. I will, however, respond to a few of them here:
Christ, what a crock of shit. The notion that the phrase “due process” encompasses not just procedural fairness, but also a right to travel, to birth control, to marry, to certain family arrangements, to abortion, and to (in a bygone era) freely contract stretches the English language far beyond the breaking point. It is completely and utterly dishonest to suggest that such interpretations are “rooted in the text.” What you are doing here is just redefining “due process” in a way that you find convenient. **
The term “right to privacy” is more of a shibboleth to the left than the right, dear minty. Question #2 on the Democratic Supreme Court Nominee Questionaire is “do you think the constitution protects a right to privacy?” (Question #1 is “do you agree with Roe v. Wade”). Answer no to either and you’re sure not to be nominated. The term is standard shorthand for the right to procreative choices established by the birth control and abortion cases, and more to the point, opponents of the Texas law are seeking to expand that that beyond procreative choices into choices involving particular types of sexual activity. **
To which I can only reply with the famous quip of noted Professor John Hart Ely (no conservative, he): “there’s no getting around the fact that the word that follows ‘due’ is ‘process.’”
Suffice it to say that the history to which minty refers is far from being decisive. Indeed, one wonders why the framers of the 14th amendment would choose to mirror the language in the 5th amendment if they wanted to establish a notion of SDP, given that the 5th amendment had never been given substantive content outside of Dred Scott decision – a decision which was considered discredited the day it was handed down. **
Have they used that exact phrase? No. Is that what they’re doing? You betcha.**
Which is to say the courts are self-aware enough to recognize that they can’t use the doctrine willy-nilly. So what? The fact that the courts have sometimes shown restraint in using the doctrine of SDP is not itself a defense of that doctrine’s propriety. **
:rolleyes: I’d like to think I could say the use of SDP was inconsistent with the self-governance principles embodied in American government without being accused of labeling the courts as “totalitarian.” Gee, minty, caricature much?
