Somewhere, the shades of McReynolds, Butler, Sutherland, and Van Deventer are nodding sagely and one of them is saying, “See, somebody understands us!” 
Whoa, whoa, whoa, back the train up. People do not have the right to self-governance. Given your own arguments, people only have the rights granted to them by the Constitution, which nowhere states “The right of individuals to self-governance shall not be infringed upon by the States.” Sure, the Constitution lays out the structure of a representative democratic system of government, but this doesn’t equate to a guarantee of self-government - it equates to a guarantee of government by a body of elected officials, which is not the same thing as self-governance. Syria’s governed by “a body of elected officials” too, after all. Heck, so far as I can tell, Americans don’t even have a right to vote - they just can’t be prevented from voting on the basis of certain criteria (gender, race, age over 18, and failure to pay a poll tax). So unless I’m missing something (and I may well be), it would be perfectly constitutional to prevent a given class of people from voting, so long as that class isn’t picked out by one of the proscribed criteria. Restricting voting rights on grounds of handedness, eye colour, percentage of body fat, or foot size all seem to be permissible. That certainly isn’t a right to self-governance.
I conclude that you believe the right to self-governance is one of those metaphysical innate rights - you have after all described it as the “Sacred Right to Self-governance”, but I must confess I find this to be verging on incoherence on your part. First, if people have any “sacred rights”, I submit the right they have is the Sacred Right To Do Whatever They Damn Well Please So Long As They Aren’t Hurting Anyone. This seems more like a right to self-governance (in the sense of governing oneself) than the right you seem to be advocating, which appears to be something like a right to live in a representative democracy - why anyone should think that people have an innate right such as that is truly beyond me. But anyways, you cannot by your own arguments countenance any innate rights, at least, not any with any legal weight - rights exist for legal purposes solely if they appear in the Constitution in unambiguous language, according to you, and the right to self-governance makes no such appearance. Moreover, since the people have no right to self-governance, the courts can hardly illegally infringe upon this right by interpreting the Constitution in controversial ways. So if they want to see emanations and penumbras, or expound upon the rights implicit in the 9th Amendment, that’s all perfectly kosher. (I have to admit that’s a bit of a loophole in the whole checks and balances scheme - SCOTUS has the power granted to it by the Constitution, including the power to interpret that self-same Consitution as it sees fit - better hope that the Justices don’t let such untrammelled power go to their heads.)
Surely the proceeding cannot be all correct. Please explain to me why this isn’t a glaring self-contradiction on your part, since I shall charitably assume you aren’t making such a gross error, but rather that I’m misunderstanding something about your position.
Forgive me the poetic use of the word “right” in “right to self-govern.”
I think we could broadly agree that a government only justly derives its powers from the consent of the governed. That is the driving force behind the constitution; it was the driving force behind the American Revolution; and it continues to be the driving force behind the spread of western democracy around the world even to this day. It is literally the cornerstone upon which the nation was founded. Which is why I stubbornly insist that laws only be invalidated on bases that the people have already consented to, i.e., those enshrined in the actual text of the constitution.
Besides, the Constitution does guarantee self-governance. Article I, Section 2 requires that representatives be elected “by the People of the several States,” and the 17th amendment requires that US Senators be elected “by the people” of their state. Article IV, Section 4 guarantees that the states will maintain a republican form of government. That’s a guarantee of representative democracy, which is effectively a guaranteee of self-governance without using that specific phrase.
Come now. Bashar Al-Assad has been “elected by the People of Syria.” Fidel Castro has been elected (many times) “by the People of Cuba.” The right to elect your government is not equivalent to the right to democratic self-government. Anyways, this doesn’t dispute the fact that States can restrict voting rights for most any reason, barring those few proscribed in various amendments, which certainly gives the lie to any right to self-governance. (Do I have that right? That seems a grotesque oversight in the document, and since I’m no expert, I tend to think I must be missing something, but I can’t see what it would be.)
Now, if you want to argue that the spirit of the Constitution requires free and open elections, and thereby guarantees democratic self-government, I’m right with you. But that line of argument isn’t open to you, given your refusal to acknowledge that, say, the spirit of the 14th Amendment clearly renders the Texas Sodomy statue unconstitutional, insofar as a majority is restricting the liberty of a minority for no good reason.
Sure, I can agree with all this. But it doesn’t get you to your conclusion, since I think we could also broadly agree that a government only justly exercizes its powers when it refrains oppressing minorities who cannot defend themselves at the ballot box. That is the driving force behind the 14th Amendment (among others), and it continues to be a driving force behind core notions of social justice in western democracies and around the world. Which is why I stubbornly insist that laws which unjustly persecute minorities should be invalidated, even if they originate in legitimate democratic fashion and technically avoid violation of the terms of the Constitution.
You, sir, cannot have this both ways. Either the “spirit and driving force” type argument carries legal weight in both cases, or in neither case. If the former, the Texas statute should clearly be struck down. If the latter, then SCOTUS can dispute the will of the people whenever it pleases with perfect legal legitimacy. You cannot argue that one course of action is closed to SCOTUS on the grounds of moral considerations, but then insist that a second moral argument reaching another conclusion is invalid because only legal principles can be legitimately consulted.
Well, you can, but you’d be contradicting yourself.
Actually, I can think of a better source, Dewey:
Now, I’m aware that you legal eagles claim that the Declaration has no legal status – but the day a bunch of lawyers decide to claim that the above is not something important to every American, that’s the day that you see something truly bizarre: the DAR, the ACLU, the Montana and Idaho weirdos who claim the 16th Amendment is unconstitutional, the American Legion and VFW, and People United for the American Way all joining together to denounce the ABA.
And you’ll pardon me for saying once again that the exact reason for the Ninth Amendment was to indicate that people do have the right to marry, to travel, to use contraceptives if they so choose, and perhaps even to commit “the abominable crime against nature” in private if they wish to do so (I’ll bet you Ben Franklin, at least, approved of the ability to do so!).
That, and that only, was the reason that we are not part of Her Majesty’s Dominion of North America, along with our friends in Ontario and Manitoba and B.C. – because a mercantilist government under George III and Lord North decided that the British Parliament knew better what was best for us than we did ourselves, and we disagreed – vehemently.
Respect for the law is something we inherited from England, and is a major part of America, and why we have a stable, free form of government, instead of recurrent coups, and a subscription to the Constitution of the Month Club.
It can be eroded. It is being eroded by people who use the law in partisan divisiveness. I live in the South, but was raised in the North. People have long memories – a time period when that sort of partisan divisiveness was rampant still hangs heavy over memories here.
Most Americans are not Constitutional lawyers. But they are very firm about what their rights are – though a fair number of them cannot care a whole lot about what somebody else’s rights are, nonetheless if the issue is placed before them as one of fair play, they will in fact rally to defend rights that they personally may not wish to be given to people. Pettifoggery that appears to be taking away rights that they believe they have, whether or not it’s backed by hoary precedent and the text of the Constitution, they will fight, and fight as vehemently as did their forefathers 228 years ago.
“Caesar had his Brutus – Charles the first his Cromwell – and Mr. Justice Scalia – may he profit from their example.”
Gorsnak: the constitution did not descend from on high. It is the product of representative democracy. The reason the Constitution is valid is because it is a product of representative democracy, and the reason that courts should not expand the limitations on government beyond those things found in the text of the document is for the precise reason of respecting decisions made in a representative democracy.
Far from being contradictory, my view is perfectly consistent. The due process clause is properly restricted to procedural matters because that is what “process” means – and thus that is what the framers of the 5th and 14th amendments were trying to protect, and nothing more. The fourth amendment is properly limited to searches and seizures, and not a broader notion of privacy, because that is the text selected by the framers – they took certain searches and seizures off the table for future generations, and nothing else. **
Syria and Cuba are lying. What’s your point?
Odd, then, that in such egregious situations they would need to go to the courts in the first place. If “most Americans” are willing to resort to armed violence to secure their rights, surely a stern letter to their representatives isn’t too much to ask.
Because you asked, Dewey, though it’s something of a hijack: My perception (which may be wrong) is that a majority of Americans think their representatives in Congress tend to listen more to the guys who make the big campaign donations than to their constituents.
And I didn’t say that “most Americans are willing to resort to armed violence” – I pointed out that the Declaration, which says that it’s a last resort, not to be used to “light and transient reasons,” says that full-fledged revolution is our heritage when government doesn’t protect the rights of the governed, from whom they derive their powers.
I’m not advocating it – I’m prophesying – in the classic sense – if ‘repentance’ on the part of the leadership doesn’t occur, then they will find they have no followers. And the next election “won” by legal prestidigitation will not have the consequences of merely leaving a disgruntled minority grumbling.
Ah, okay, I understand you now. The only moral principle which carries any weight in matters of governance and law is that the will of the majority shall be sacred. It can constrain its own future actions, but nothing else can. Any other moral principles only matter insofar as the will of the majority endorses them. I suppose that’s internally consistent. I can’t imagine why you believe it, but that’s another issue. To paraphrase everyone’s mother, if all the other kids said you should jump off a bridge, would you do it?
I note you still haven’t responded to my question regarding voting rights. This isn’t an axe I’m trying to grind; I’m honestly curious as to where my analysis is wrong (if it is), since I don’t particularly care for its conclusion.
I think this is a pretty accurate summary of what I’m saying.
I also think it’s perfectly reasonable. A moral principle not endorsed by the majority (by amendment or by statute) is by definition imposed by a minority. I think the key question is, as always, “who decides” – in this case, who decides what shape society will take, and what principles will that society endorse over others? I’d rather that those fundamental decisions be made by the people, through representatives held accountable at the ballot box, than by an insular and nonresponsive minority. YMMV, of course.
I’m not sure what the question is, really. Is it permissible to restrict voting on non-proscribed bases? Sure. We don’t let children under 18 vote, for example. So what? Does that kind of restriction seriously indicate that the constitution fails to adequately safeguard notions of (small-r) republican governance?
I don’t think so. The first amendment doesn’t prevent laws against libel or incitement to riot, but I hardly think that means we lack safeguards on the right to free speech.
The voting rights question is: would it be unconstitutional for a state to pass a law restricting the voting rights of, say, people who registered to vote as Republicans? Or people earning less than $70k/year? Restricting voting of minors isn’t an issue to worry about, as you correctly point out, but there would seem to be a great many non-proscribed classifications which would be a problem.
As to your general position, I must say I don’t have much patience for rule-based ethics, being mostly a consequentialist myself, but for god’s sake, if you’re going to go with a rule-based government by consent sort of story, you damn well need a parallel fairness principle limiting what majorities can do to minorities. I’m not a Rawlsian by any stretch, but something like his first principle*is needed. This sort of sentiment does make an appearance in the Constitution, most prominently in the 14th Amendment, but at other points as well, and I think it would be a grave error to not think it to be every bit as important as a principle underlying, and not merely issuing from, the Constitution, as you see the majority rule principle. This isn’t imposing a moral principle on the majority, it’s a case of accepting a moral principle everyone would endorse if they weren’t sure they would be in the majority.
Why would you think that there should be no legitimate recourse besides persuasion for a minority being oppressed by a majority? - short of armed uprising, I suppose, but I trust we can all agree that our society is better off if that can be avoided. There are going to be some times when majorities cannot be made to recognize (or care about) the injustice of their actions towards a minority, or leastways, not without generations of struggle, and in the mean time, your preferred system endorses such injustices.
So, I ask again, if all the other kids voted that you should jump off the bridge, would you do it? Assume for the sake of the example that you’d been given the allotted time to try to persuade them to vote otherwise, but none of them budged. Also assume they have a sufficient majority to write the “Dewey jumps” law into the Constitution as an amendment if need be. Remember, the will of the majority is what matters, on your view. By no account can it be flouted. And no, they have no good reason for making you jump. You haven’t done anything criminal. They just don’t like you.
*Working from memory here, as the guy I lent my copy of Rawls to lo these many years ago never returned it. I’m not referring to the distribution principle, but the liberty one.
This would be a violation of the first amendment rights to free speech and assembly. **
Assuming this isn’t a disguised attempt to restrict voting on the basis of race (15th amend.), and assuming this isn’t effectively a poll tax (24th amend.) this would be perfectly constitutional. It also would never pass – there are a lot more people who make less than $70,000 per year than those who make over that sum. Woe betide the legislator who introduced that little proposal. **
Just to be perfectly clear, I have no problem with a minority seeking to vindicate rights found within the written text of the constitution – for example, when government discriminates on the basis of race, I have no problem whatsoever with a plaintiff challenging that act of government under the equal protection clause.
Beyond that, the question once again becomes “who decides?” Who decides what “oppression” means? Are smokers in New York “oppressed” because they can no longer smoke in bars? They are, after all, a minority on the business end of a law they presumably do not like. Should they have recourse under the constitution? And if they can, what does that say about self-governance?
Remember when you were in high school how the student council was elected but had no real power? If they wanted to do something the administration disapproved of, they couldn’t do it, period, end of discussion. Well, that’s fine for high school. But I think it inappropriate for real life. The Supreme Court should not be a glorified school principal. Unless a government act violates some specific proscription to which people have already agreed, that act should be given full force and effect.
And if you feel the Constitution should protect something but does not, get politickin’. Constitutional change is hard, but not impossible. Ignoring the Bill of Rights, it’s happeneded 27 times over the course of our history. And if a less permanent solution is acceptable, take the simpler route of passing a law (or repealing the one that offends you). Yes, that’s a lot of work. Most worthwhile things are. **
No, because such a provision would violate a whole bevy of constitutional restrictions. It’s a Bill of Attainder for starters (Sec. I, art. 9). It’s certainly a deprivation of life, liberty or property without (procedural) due process (5th, 14th amend.). It’s probably a cruel and unusual punishment (8th amend.). It might well be deemed slavery (13th amend.).
OK, so assume they write it into the Constitution, abolishing the bill of attainder restriction as well as the others mentioned, at least for this specific case. Well, then I guess I’m stuck. But so are the courts. I mean, if you’ve got an amendment explicitly saying this act is constitutionally OK, how on earth can the courts say the act is “unconstitutional?” At that point, my only recourse is to start checking out Canadian real estate prices.
But of course as a practical matter such a law is absurd. It’d never pass. Somehow, I can manage to sleep easy at night, even knowing that if my fellow citizens decide to pass a Constitutional amendment forcing me to jump off a bridge I would have no judicial recourse and would have to flee the country. YMMV
Woe betide? If he gets it passed, the masses making less than 70k/year are impotent to vote him out of office, as they’ll have no voting rights. That’s the insidious nature of this sort of thing. (Or, if you prefer, make it over 70k/year instead of under.) I agree it’s extremely unlikely that anything like this would happen, but my point was simply that the constitution doesn’t guarantee citizens a legal right to have any say in their government, which right is the one you seem to hold most dear. Nor does the government need to justify restricting it, as can be done in the case of minors and convicts, but can’t be done in my example.
Yes, this is such a terribly difficult issue. Liberty is such an opaque concept. :rolleyes: As the saying goes, your right to swing your fist stops at my nose. Arguably, smoking goes past that point, given the medical evidence regarding second hand smoke. On the other hand, arguably private establishments non-smokers are free to avoid should not be forced to ban smoking. Who decides? The same people who decide if a given restriction on any other right is justified, of course.
Of course it’s absurd and would never happen. It was an extreme hypothetical which apparently failed to open your eyes. But as a brute matter of fact, the Texas sodomy statute is little different. Both the Texas sodomy statute and the “Dewey jumps” amendment restrict a minority of the voting public from activities which play an important role in a healthy human life with no justification for the restriction, and both minorities are for the moment unable to effect a change democratically. The difference is merely a matter of the degree of the restriction.
As to your quip regarding starting politicking, I cannot. As a non-American, I have no say in how your country is run. I can merely wish that it would actually be the bastion of freedom and liberty it holds itself up as.
Well the U.S. Supreme Court is only going to apply an intermediary level of scrutiny. The U.S. Supreme Court is not likely to analyze the Texas statute under a strict scrutiny analysis unless they are willing to overrule Bowers v. Hardwick.
Thus, all the state must identify is a legitimate state interest and the law is rational or reasonably related to this legitimate end. This is normally very easy for states to do. Depending on the U.S. Supreme Court’s mood they could be highly deferential in this instance. Since there is not likely to be any strict scrutiny applied here and the U.S. Supreme Court is usually deferential to states in defining what morals to protect and seek to protect with legislation, I don’t see the Texas statute being ruled unconstitutional.
Well if you are relying on the Ninth Amendment as a source of rights then I have to disagree Polycarp. The Ninth amendment is not a announcement of what “rights” exist. The Ninth amendment in my opinion only states a truism, much like the Tenth amendment has been held to be nothing more than a truism, in that it does not enumerate or create any rights. Just as the Tenth Amendment does not specifically delineate what the powers of the states are neither does the Ninth Amendment delineate what exactly the rights are spoken of in the Ninth amendment. The Ninth amendment only stipulates a true statement that the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage other retained by the people.
What exactly these other rights retained by the people are is a mystery! What rights did we retain? How do we know we retained any rights? This amendment can’t be relied upon in arguing X, Y, or Z is a right because this would be nothing more than a begging the question argument of whether or not it is a “right” to begin with.
I might also add the “right to travel” was not found to be in the Ninth Amendment but contemplated in the Fourteenth Amendment, the First Amendment, and scheme of the U.S. Contitution in general.
Finally I do agree with Dewey in his theory of constitutional interpretation. I am not against the judiciary interpreting what provisions in the Constitution mean because this is necessary. However, no interpretation can reasonably go beyond the wording of the provision. For example the Free Exercise of Religion clause of the First Amendment necessarily means the liberty or privacy to choose what to believe, how to believe it, and how to practice this belief or honor this belief although this is not specifically mentioned in the clause itself.
So I am of course very suspect when the U.S. Supreme Court stipulates a general “right of privacy” exists without specifically showing me the provision in any amendment from which this right reasonably grows from. Additionally, I do not think the Fourth Amendment can be reasonably construed to create this “right of privacy” as the wording of the Fourth Amendment makes it very clear what it is relating to and it is not to a generalized form of privacy but specific privacy from unreasonably search and seizures by the state. Any interpretation relying upon the Fourth Amendment to reach the conclusion there is a generalized right of privacy is not a reasonable interpretation of the Fourth Amendment and severely stretches the Fourth Amendment.
Here is the statute in question.
Now this statute prohibits both males and females from engaging in same sex deviate sexual intercourse acts. Hence, on its face the statute would prohibit those sex acts proscribed by statute carried out by a female on another female and a male on another male. As I noted before, unless the U.S. Supreme Court is going to find engaging in sex acts by the same sex is a fundamental right, covered by this mythical generalized right of privacy, or same sex couples are a suspect class then no strict scrutiny.
All the state has to pass is an intermediary level of scrutiny. To do this they must show a legitimate state interest and the means are rationally or reasonably related to this end. Considering the U.S. Supreme Court has already held in Bowers v. Hardwick that protecting the morals of the community or state in general is a legitimate state interest and proscribing homosexual conduct deemed to be immoral by statute is rational to achieve this end.
Welcome to the Straight Dope, Jimmy1. You might want to read through the entirety of this thread, including links, because while you raise valid points in many cases they have already been discussed extensively.
Gorsnak: I think we’ve hit a terminal point in the discussion. I think we’ve both pretty clearly set out our respective positions and anything I’d add would just be repetitive of points I’ve made before. I suppose it all boils down to how comfortable you are with democratic decisionmaking – if you’re more comfortable with it, you’ll be inclined to believe the constitution should be strictly construed, and if you’re less comfortable with it, you’ll be more inclined to take a more sweeping view of constitutional law. Like I said, YMMV.
Well, on that much, at least, we can agree. 
Thanks for the greeting Dewey. I have read through most of the posts here, although not in exact detail out of consideration for saving time, but I just wanted to add my two cents.
DCU:
Your refusal to address the points that I have brought up in no way makes them any less valid. Not only is your claim that everyone agrees that I am not making sense completely nonprobative, it is completely unsubstantiated.
The intent of the labor law was to improve people’s ability to provide for their families. The intent of the sex law was simply to make life harder for some people. I find it quite reasonable to believe that laws based on good intentions are better than laws based on pure malice.
This is the Great Debates Forum, not the Poetry Forum. If you’re going to chide others for claiming some higher source of rights, then it’s rather hypocritical to do so yourself, even poetically.
I really don’t see how you get from the idea that a government derives its powers from the consent of the governed to the idea that restrictions on the government derive only from the consent of the governed. Here’s an analogy: suppose I join a homeowner’s association. If the HOA agreements says that it can regulate lawns, it can regulate lawns. If it says it can regulate roofs, it can regulate roofs. The HOA derives its power from the HOA agreement. Does that mean that every restriction on the power of the HOA must come from the HOA agreement? If the HOA says that it has the right to tell me what to wear, and I say that it doesn’t, must I find a clause in the HOA agreement saying that it doesn’t have the right to tell me what to wear? According to your logic, what’s the point of Aritcle I, Section VIII?
And this is a nitpick, but since you’ve been so rude, I thought I’d mention it: seeing as how this is not a stone, much less a cornerstone, your use of the word “literally” was erroneous.
No, it requires that the federal government guarantee the states a republican form of government, which is slightly different. It imposes no duties on the states.
Your conception of self-governance is quite different from representative democracy.
[quote]
The reason the Constitution is valid is because it is a product of representative democracy, and the reason that courts should not expand the limitations on government beyond those things found in the text of the document is for the precise reason of respecting decisions made in a representative democracy.[;/quote]
Well, there’s a bit of a bootstrapping there, isn’t there? After all, the people that signed the Constitution obviously weren’t voted into office under the Constitution Black people weren’t allowed to vote because it was democratically decided that they wouldn’t be allowed to vote… but when they voted on whether black people should be allowed to vote, black people weren’t allowed to vote. Same with women. Bit of circular reasoning there.
That’s a rather odd definition of “imposed” you’ve got there. Normally to “impose” means to force someone to do (or not do) something. But in this case, it is the majority that is forcing the majority to not do something. When the majority tells the minority “don’t have sex”, and then minority says “I don’t think you have the right to command that”, and you say that the minority is “imposing” on the majority by refusing to do whatever the majority says, that is Orwellian.
Really? http://dictionary.law.com gives the definition for bill of attainder as “a legislative act which declares a named person guilty of a crime, particularly treason”. I didn’t see any mention of you being declared guilty of a crime. Will DCU finally admit error? Stay tuned.
Anyway, all of you objections are moot, because the hypothetical mentioned “all the other kids”, not “the US government”. As usual, you based your arguments on the US Constitution, even though it is irrelevant, as is it so often is when you bring it up.
What is the proper due process? Is there some law saying that there is a specific process that must be followed before someone can be voted to jump off a bridge? Or are you basing this on the fact that this is (gasp) unfair?
And earlier you said “Due process concerns clearly do not arise until the government tries to penalize someone for performing the prohibited act.” What act are you being penalized for? I don’t see any act that you’re being penalized for, and I don’t see any reason to assume that there is any. The kids voted that you should jump off a bridge because they wanted to, not as punishment for a specific act.
Again, there’s no mention of punishment.
Yeah, but it’s ridiculous to suggest that forcing a woman to carry a baby to term is involuntary servitude :rolleyes:.
Gorsnak
You might want to instead ask DCU what he’d think of a Constitutional Amendment making Bush dictator for life. As I understand his position, as long as this was arrived at through democratic means, this would be fine. I think that “representative democracy” is not quite as accurate a description of DCU’s idea of justified governance as “democratic fascism”; the State can do whatever it wants as long as its wants are determined democratically. Personally, I find fascism to evil regardless of whether it is implemented by .001% of the population, 50.001%, or 99.999%. But apparently “evil” is not a valid legal basis for contesting a law.