I didn’t say that, I only said that legal cites in and of themselves don’t constitute cappers in a debate like this, as opposed to a law court or classroom. You have to cede morality ethics and logic and applicable elements here.
Gee, that would be a really nice point if I hadn’t been responding to Poly’s request to explain where I got the descriptor “truism.”
P: Hey, where did that come from?
mg: It came from right here.
EC: Appeal to authority! That’s not what we’re discussing! General debate only! No law stuff!
Yeah, it’s called legal authority, and in a legal discussion at that. You can handle that without getting snotty every time somebody cites a case, can’t you? Otherwise, you and I are simply not going to get along very well.
It seems to me that the Tenth Amendment serves that very purpose by itself.
Since marital privacy is not mentioned anywhere in the constitution, how would you feel if the Court threw that out the window tomorrow? What about the right to travel? I want answers. What if they reversed and said those aren’t rights? Would that be a proper decision?
No. The 9th addresses unenumerated “rights” of the people. The 10th addresses undelegated “powers” that are reserved to the states as well as the people. “Rights” and “powers” may overlap to some extent, but they are not synonymous.
May I suggest that you read my previous responses throughout this thread and the linked one in the Pit. You will find, I am quite certain, that Dewey and I are directly opposed on the substantive due process doctrine that protects marital relations, procreation, etc. I’m also quite the big fan of stare decisis, which is addressed once or twice in the same discussions.
Sheesh, just because I point out that the 9th Amendment doesn’t ensure any right whatsoever, you think I’m some sort of Scalia-worshiping reactionary hiding behind the guise of textualism? Despite everything I’ve said to the contrary regarding Due Process and Equal Protection? Come on, do me the courtesy of reading my posts before composing such accusatory questions.
—When the judiciary, in considering the constitutionality of legislation, exceeds the bounds of the restrictions the people have previously agreed upon, it usurps from the people a power rightfully in their possession. It effectively replaces the people’s policy choices with policy choices of their own. And that simply cannot be reconciled with notions of a government deriving its just power from the consent of the governed.—
So you say. Ironically, the constitution doesn’t place any such limits on what the judiciary can do in practice at a whim. To argue for such limits, you’d have to make exactly the same argument you are foreswearing elsewhere.
Howzabout you call 'em like you see 'em, and I’ll call 'em like I see 'em, and we’ll see how well we get along.
Not so. Article III gives the high court jurisdiction for all matters “arising under the Constitution.” There’s no getting around the fact that when the court considers a law, its review is ostensibly to find a conflict with the written constitution, not to find a conflict with some free-ranging sense of metaphysical justice. See Marbury v. Madison for further explication.
More fundamentally, in a system of government such as ours, established in large part because of a lack of representation in important governmental decisionmaking, the people’s power to craft the shape of government should be broadly protected; limitations on that power should be narrowly construed. To do less abrogates the ideal of democratic self-governance so central to America’s history, purpose and character.
Fine. Try it with a modicum of respect and civility next time.
Point of clarification: is it just the procreation aspects of SDP precedent that bothers you? IIRC, you’re OK with SDP as a general principle.
Of course, my feelings on SDP are well-established. 
—See Marbury v. Madison for further explication.—
Are you trying to whoosh me? MvM is probably one of the most ridiculous cases in the history of the court in terms of its wide-ranging reasoning: it only goes to prove my case that the court has a free-ranging power to use any wacky rationale at all, and the only thing really checking its authority is that it has zero power to enforce any of it.
MvM is a case where justice Marshall and his fellows essentially spent the summer at a house drinking with the other justices dreaming up how they were going to thumb their noses at Jefferson without simply being ignored (and they got him too, good, essentially laying the Constitutional groundwork that made all his dreams for our government moot).
The right they claimed for the court wasn’t even exercised again for fifty years. The opening reasoning is some of the most hilarious (perhaps even intentionally) legal reasoning in history. Even Stevie Wonder knows that it’s “Signed, Sealed, Delivered.”
—More fundamentally, in a system of government such as ours, established in large part because of a lack of representation in important governmental decisionmaking, the people’s power to craft the shape of government should be broadly protected; limitations on that power should be narrowly construed. To do less abrogates the ideal of democratic self-governance so central to America’s history, purpose and character.—
Sounds like penumbras and emenations to me. My point is that while you might read all these considerations into the mission of the Court, the Court is under no explicit raitonale to consider any of them. The issue of jurisdiction is all they are explicitly bound by, and its not even clear who would overrule them if they ignored it. No insight is given in the document to how they go about deciding how to interpret the Constitution.
Quite so, Dewey. Where you’re going off the track is your sky-is-falling insistence that the reach of substantive due process represents some terrible affront to democracy. As it exists, SDP under the 14th Amendment is extraordinarily limited, protecting only the following:[ul][]Procreatin’ and related activities, as long as they’re not too gay; []Raisin’ young 'uns; [*]Maybe, sometimes, possibly the right to tell the state to fuck off 'cause you don’t want the life-sustaining medical treatment they’re trying to force on you.[/ul]That’s it. No more. The sky is not falling, the democracy is intact, Justice Scalia is still on his throne, and all is well with the world.
minty: Is an affront to democracy any less of an affront because it is limited in scope? I mean, really – is a little corruption in Congress OK so long as it isn’t on a Teapot Dome scale?
apos: You conveniently snipped the textual basis I provided. And since Marbury is pretty much the foundation of judicial review, I’m not sure rearguing it is productive for either side of the debate (FTR, it’s an unusually structured case, and not without error – it should have been flatly dismissed for want of jurisdiction, a point Marshall doesn’t reach until the very end, and Marshall distorts the statute it invalidates – but it is spot-on in its analysis of the constitution and the role of the courts).
PS – the claim that judicial review wasn’t utilized for fifty years is patently false. Marbury was handed down in 1803; Fletcher v. Peck, handed down in 1810, invalidated the recission of a land grant on the basis of the constitution’s Contracts Clause.
So, you go hysterical for multiple pages every time a lobbyist buys a congressman a Dr. Pepper?
Have a little perspective, Dewey. There are all sorts of laws that limit legislative power; surely you can find better things to get worked up about than Connecticut’s inability to prohibit the sale and use of IUD’s. I assure you, the safety and security of the nation will not suffer even the tiniest little bit if it turns that Texas can’t toss someone in jail for doing the nasty with a member of the non-opposite sex.
In his defense, I think he meant it wasn’t used again to strike down a statute passed by U.S. Congress as unconstitutional for another fifty years, in Dred Scott v. Sandford.
minty:
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I hardly think I’ve been “hysterical.”
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Lobbying != corruption. And I would no sooner excuse a $100 bribe to a congressman than I would excuse Teapot Dome.
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One reason it’s important to stand on principle in these narrower situations is that the principle is inevitably extended to newer, more avant garde areas – power is taken by erosion rather than outright seizure. As you are familiar with historical commerce clause jurisprudence, you should recognize this practice in action.
pravnik: if that is his point, he certainly didn’t make it clearly, nor did he explain why that distinction would be of any importance in the context of his criticism of Marbury.
minty, please disregard the above question, as I misread the text that led to it – my mind put a “to” where the “on” was.
Dewey Cheatem Undhow
So you reject the idea that people have natural rights, but they do have a “sacred” right to self-govern? Seems to me your position has no more valid basis than ours. Also, I find it rather deceptive to refer to people telling other people what to do as “self-governing”. The US has more people, I believe, than all the other countries in North America. So if everyone in the US agrees that Mexicans should be prohibited from speaking Spanish, would Mexico refusing to comply constitute a violation of North America’s right to “self-govern”?
You respond to the argument that protecting all of our rights would make the constitution longer by making a claim about one right. Do you really not see the problem with that? I also find it odd that you claim that such a vague term as “privacy” can be summed up in one sentence, while the concept of personal freedom is somehow so complicated as to defy description. Furthermore, your proposal falls short:
Some problems:
Creating an amendment that can be used to protect privacy is a far cry from an amendment that will be used to protect privacy.
Your proposed amendment would simultaneously both fail to ensure that valid violations of privacy will be prevented and allow a huge array of invalid uses. I don’t see how that’s a good thing.
Creating something to “hang their hat on” is not enough. There would be plenty of people who would use language similar to yours to argue that they are “overreaching” and taking the amendment to absurd lengths. There are already clauses to “hang your hat” for most decisions. Take abortion, for instance. “The right of the people to be secure in their persons… against unreasonable seizures…”. Prohibiting abortion can be seen as an unreasonable seizure of the uterus. Or “nor be deprived life, liberty, or property, without due process of law”. Prohibiting abortion can be seen as depriving someone of liberty and property (or even life, if there are medical reasons for the abortion). Or “nor shall private property be taken for public use without just compensation”; “nor cruel and unusual punishment inflicted”; or “Neither slavery nor involuntary servitude…”.
Simply because people disagree about what something means, that doesn’t mean it’s meaningless. Is “democracy” meaningless”?
Circumscribed, yes. Prohibited, no.
Again, disagreement does not constitute invalidation. Perhaps you really believe in this nihilistic point of view, but the vast majority of people agree that there is such a thing as fairness, even if they don’t agree what it is.
And yet people speak freely of the state having the “right” to do this or that, rather than simply being constitutionally empowered to do so.
Something I’m curious about: the passage of the 18th amendment, in place of simply passing a law to that effect, implies that the people at the time considered the federal government to not have the power to ban drugs. Were they in error?
Because there’s a world of difference between “may” and “must”.
I don’t believe he was saying that being affected gives one’s position greater weight, but rather that he finds it hard to believe that you would be as complacent if it were you that was prohibited from having sex with your lover.
I’m no mind reader, but I suspect that that Homebrew’s reaction to having a law prohibiting his sexual activites being compared to a minimum wage law would be… unpleasant.
“I’m not allowed to have sex with my lover”
“Oh yeah? Well, some states have instituted economic policies which I don’t agree with”.
Sorry, just don’t see how these are even in the same league.
Democracy means that the people can tell the government what to do, not that they get to tell the people what to do. We’re not talking about the shape of government, but rather the conduct. And I find the idea that simply because the government is being run by the people, that means we are safe to have as few limitations on governmental power as possible, to be terribly naïve. Surely you wouldn’t say this about a country run by one man; why is it any different when run by the majority? Furthermore, I disagree with you as to what are the principles that lie at the heart of America. From the Declaration of Independence. “We hold these truths to be self evident: That all men are created equal; that they are endowed by their Creator with certain inalienable right; that among these are life, liberty, and pursuit of happiness; that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive to these ends, it is the right of the people to alter or abolish it…” So summarize: the purpose of government is to secure rights. Not to make policy decisions, not to engage in social engineering, not to govern for the sake of governing, not to provide a forum in people can get together and decide what they think everyone else should do, but to secure rights. And when those rights are violated, the people have the right to alter or abolish it. You seem to confusing the claim that nothing is just without the consent of the governed with the claim that everything is just with it. And I certainly don’t give my consent to a government with a blank check.
The more I think about, the more I realize that the juxtaposition of the words Justice and Scalia is an oxymoron. 