This is a good example: of how you’re completely missing my argument. I’m not saying that the US has the right to dictate Mexican language usage; in fact, I’m arguing the opposite. Where we diasagree is the reason why the US does not have that right. You say that the reason is that Mexico has no representation in US government. I say that even if the US allowed Mexicans to vote on the “Should Mexicans be prohibited from speaking Spansih?” resolution, that wouldn’t make it justified. You have completely ignored this. You haven’t provided any reason why it would be justified, or even explicitly stated one way or the other that it would be justified. Instead you just keep repeating your implication that I think that the US does have the right to dictate language to Mexicans, which is only one of the least egregious examples of your misrepresntations. The discussion has basically been: “Imagine a situation where this would pass even if Mexicans are allowed to vote. This still wouldn’t be justified. Therefore, representation is not sufficient” “But the Mexicans aren’t represented” “Yes, but imagine a situation where the Mexicans are represented, and the resolutions still passes. It wouldn’t be justified” “But the Mexicans aren’t represented” “But what if they were?” “You’re just not making sense. The Mexicans aren’t represented. Why can’t you understand that? I’m going to quit trying to discuss this with you, because you’re just not making sense”
And add argumentum ad populem to the list of logical fallacies you have committed in this thread.
The key, of course, is precisely that Mexico lacks political representation in US policymaking, and thus a US-created rule on any issue – official language, taxes, whatever – cannot properly be imposed on the Mexican people. Of the states that have passed “official English” statues, many are southwesterns states with substantial Spanish-speaking populations. Yet I don’t see you bitching about that. I mean, really, why do you think I mentioned existing state laws in the first place? With the exception of the critical fact that the citizens of those states have representation in the legislative process, how is that any different from your Mexico example?
Look, assuming that Congress has the power to craft an official language statute (not too far-fetched under commerce clause jurisprudence), and assuming that the statute is crafted to not conflict with the petition right of the first amendment, and assuming that Mexico became the 51st state, then there is NO PROBLEM constitutionally with such a statute. The presence or absence of Mexico as a state within the political entity called the United States does not alter the constitutional analysis.
Your argument is simply absurd: if Mexico isn’t a state, it lacks representation and thus isn’t properly subject to US law; if Mexico is added as a state, then the analysis is no different than if Congress passed such a law absent Mexico’s admission. In short, your Mexico hypothetical is irrelevant.
And as for this:**
I do not think it means what you think it means. I never said I was right because I had substantive discussions with other posters, nor did I say I was right because other posters wouldn’t think I was dodging you. I’m right because your arguments are nonsensical, and because my points have been substantive (though certainly debatable) over the course of this thread. I was just expressing my faith that other posters would recognize that distinction.
Is it my responsibility to write your argument for you? If you wanted to say that “many US states disallow Spanish in some cases and this is okay, in these states people have representation, therefore all cases in which people who have respresentation are told not to speak Spanish are okay”, then you should have said that. And then I could have argued against that. Or was that what you were trying to avoid? Is figuring out someone’s argument some sort of macho thing? You don’t explicitly tell me what your argument is because if I’m intelligent enough I should be able to figure it out, and if you don’t understand my argument you don’t ask me to clarify because doing so would be admitting that you aren’t omniscient?
And you call my posts nonsensical? I just complained about your inability to grasp the concept that in my hypothetical, Mexico does have representation (or at the very least, provide an argument why this is not so), and you respond with a post that implies that Mexico doesn’t have representation. As for how this is different, it probably isn’t. I don’t know what laws you are talking about, but I would probably consider them either immoral for both cases or moral for both.
This doesn’t address my hypothetical for two reasons:
Mexico being a 51st state was not part of the hypothical. You seem to think that being a state is the only was to be represented, which is certainly not the case. So unless you’re saying that the current relationship between states in the US is the only legitimate form of representation, I don’t see where this is coming from. And if that’s your position, then you should change your claim from “The key, of course, is precisely that Mexico lacks political representation in US policymaking,” to “The key, of course, is precisely that Mexico lacks political representation in US policymaking in the form of being a state”. Which is quite a different claim.
If you look at where this issue originally came up, it was from the discussion on whether it is moral for a majority to tell a minority what to do. Not whether it was constitutional, but whether it was moral. I consistently used words such as “right” and “justified”. I never made any reference to constitutionality. So the fact the there is no problem constitutionally is irrelevant. (And if we were simply talking constitutionality, then I don’t see what representation has to do with anything. “No taxation without representation” was a revolutionary rallying cry, not a constitutional principle. There’s nothing in the constitution that says that telling Mexicans what to is not allowed if they don’t have representation).
Exactly! So why did you bring this issue up?
So territories aren’t subject to US law?
You seem to be saying that if the people of the US get together and decide something, then everyone in the US is bound by it, because they all have representation. I’m saying that by that logic, if everyone in North America gets together and decides something, then everyone in North America is bound by it, because they all have representation. All this stuff about states is just obfuscation.
And as for argumentum ad populum, there is no requirement that someone explicitly state “I am right because people agree with me”. All it means is that someone is suggesting or implying this. In fact the most effective use of it is when the audience doesn’t notice it.
Dewey, the Texas Legislature once passed a bill honoring the Boston Strangler. It was a stunt done by a representative to show how easily things can get passed, but I think it goes to show that state legislatures aren’t the bastions of competancy that you are representing them to be.
The Ryan: Your absurdity continues; I’m bowing out.
Blalron: Whoever said the state legislatures were bastions of competency? Certainly not me. My position is that absent constitutional restriction, a state should be able to any damned fool thing it wants to.
From the Lawrence vs Texas oral argument transcript:
**Mr. Smith: It was conceded by the State of Georgia 17 years ago, that married couples can’t be regulated as a matter of substantive due process in their personal sexual expression in the home.
Justice Scalia: They conceded it. I haven’t conceded it.**
Blalron: Yeah, because Scalia correctly recognizes that putting “substantive” and “due process” in the same phrase creates an oxymoron. For reasons I’ve already been over ad nauseum.
No it doesn’t. Some things are so fundamentally unjust that no matter how much “fair” procedure you tack on to it, the process can’t be considered “due”. That is the substance of due process.
I am saddened that you refuse to look at due process as anything but procedural.
Perhaps in your mind, but there is no way this is a gender based Equal protection issue. The Equal Protection issue is in regards to homosexuals being treated differently than heterosexuals, rather than men and women. You can reread my posts on the second page for more elaboration.
Process is procedure. If I may repeat myself from earlier in this thread: as Professor John Hart Ely (no friend of strict constructionism, BTW) put it, “there is simply no getting around the fact that the word that follows ‘due’ is ‘process.’”
The due process clause is not a guarantee of metaphysical fairness; it is a guarantee of a right to be heard. Period.
But I’ve argued this issue pretty darned extensively in this thread already. Re-read my posts if you want a fuller answer.
Let’s see… 150 years of Supreme Court precedant versus Dewey’s sincere desire for the Court to abdicate its responsibility of providing checks and balances. Tough choice!
Dewey doesn’t want the court to overturn all its “Substantive Due Process” decisions, he just wants them to stop making new ones. So that means that “liberty” is forever constitutionally frozen at one particular point in time.
I don’t buy your cramped notions of freedom, nor your idealization of states rights. States are ficticious entities. They are cold, unfeeling creatures just like a corporation. PEOPLE have rights. MY feelings can be hurt. The State of Texas does not have feelings.
Texas is made up concept, and this made up concepts right to throw men in jail for having sex with other men in the privacy of their own home is what you are defending. Remember that.
That 150 years of precedent is a decidely mixed bag. Remember, that 150 years of precedent includes notions that substantive due process forbade the federal government from preventing the spread of slavery. Remember that that 150 years of precedent includes notions that substantive due process forbade the states from passing laws that made working conditions a little more humane. Remember that that 150 years of precedent includes notions that substantive due process forbade the states from passing laws requiring a decent wage.
Why you’re so energized over a theory that has caused such a disgraceful amount of harm is beyond me. The US may be an artificial entity, but Dred Scott was a real person. The theory you love so much helped keep him in bondage. **
State governments are representative in nature; they reflect the wishes and desires of the very real people who live under them. You’re correct, people do have rights. One of them is the right to self-govern. That self-governance finds expression through laws passed by the legislatures. That you are so eager to trample on that right is indeed telling – your view of freedom is far more cramped than mine could ever be.
PS – “Hurt feelings” is hardly a basis for legal argument.**
Fine. The power of the judiciary to forbid Congress from restricting the spread of slavery is what you are defending. Remember that.
I don’t see any principled reason to call those decisions “mistakes.” If due process includes the power of a judge to strike down a law because he sees within it some metaphysical unfairness, then due process is essentially carte blanche for judges to invalidate legislation based on their own moral views. The judges who issued the decisions I noted above were doing exactly that: striking legislation, not on a basis firmly rooted in the constitution, but on their own moral view. And that’s the position you’re advocating – that the judiciary should be more than an interpreter of the constitution, that they should also be moral arbiters of acceptable law.
Again, there’s no principled basis to distinguish the cases I note from the ones you favor. They all come from the same root. The only distinction is that you like the results in one and you dislike the results in the other. Constitutional law should be based on firmer ground than that.
Freedom of contract was based upon faulty notions of the infallibility of pure laizze faire capitolism which were later proven to be wrong. Eventually the Court reversed.
I think the situation with civil rights are a world apart from economic rights. There is a demonstratable compelling government interest in regulating working conditions and hours.
If you want to tell me there is a compelling government interest in jailing two men for having sexual relations in their own home, go ahead. I’ll listen to what you have to say.
And your point is…what? This is wholly a matter of subjective opinion. You consider certain civil rights more important than economic rights. Others may differ.
But there is no basis in the constitution for protecting one but not the other – “substantive due process” is a blank page upon which any judge can write his own particular policy preferences. It is only the mood of the judiciary and not a principled constitutional rule that makes “substantive due process” currently protect, say, a right to privacy but not protect economic rights.
What you are basically saying is that so long as you agree with the whims of the judges, you care not how they achieve their results. I on the other hand say the ends do not justify the means.
A large number of legal disputes boil down to a matter of subjective opinion, otherwise the circuit courts would always agree with each other and the supremes would always make unanamous decisions.
If you honestly want to tell me that your right to sexual relations in the privacy of your own home is less important than being able to work for $1 an hour, you are simply blinded by strict constructionist ideology.
The decision was legally valid under the laws at the time.
**Article IV, Section 2:
No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.**
So the right to diddle yourself senseless is more important than providing for your family? I can quite easily see why a jurist might consider economic rights to be paramount. **
The decision was not premised on Article IV. Dred Scott was not an “escaped slave.” He was a slave taken into a federal territory by his owner. What Dred Scott held was that the due process clause meant that the federal government could not ban slavery in the territories because a slaveowner might wish to bring his slaves there.