BTW…horse theft is still a hanging offense in Texas.
It’s also worth noting, as I pointed out on December’s Estrada threads, that any court rules based on “the law” and not specifically on statute. That means it is possible to raise and have recognized a constitutional claim in any court whatsoever. There are cases in the New York State Justice Court system (town and village courts) where a misdemeanor or petty violation was charged, the circumstances closely mirrored a SCOTUS or State Court of Appeals ruling, and the courts threw out the charges owing to a violation of the defendant’s constitutional rights.
Such rulings are confined to the jurisdiction of the court – which is why SCOTUS is so valuable – it is the sole court with the power to determine what is constitutional in all parts of the United States. The Village Court of Pelham Manor, NY, can indeed declare a given law unconstitutional, subject to appeals to the Westchester County Court, the New York State Supreme Court, and the remainder of the NYS court tiers, and, there being a federal question, to the appropriate U.S. District and Circuit Courts. But the decision of the Village Court only applies within the village limits of Pelham Manor, though it can be cited as non-binding precedent elsewhere. Likewise the county court’s decisions are only binding within Westchester County, the state courts’ decisions within the State of New York, and the Federal courts’ decisions only within their geographic jurisdiction. (I’m sure one of our lawyer members can give a good example of a situation where two U.S. Circuit Courts of Appeals have ruled contrary to each other – and until SCOTUS grants cert. to a case involving that situation, “the law” regarding that situation is different in, say, Texas and Michigan, being as they are in different circuits.
While there is no Constitutional prohibition against arbitrary laws, that doesn’t mean that states have the right to pass them. If an Amendment were passed allowing the feds to strip the citizenship of anyone of Arab descent, that wouldn’t give them the right to do it. Rights aren’t obtained by simply signing a piece of paper saying that one has that right.
Absolutely.
minty green
Why are bananas diferent from horses? Or is that law constitutionally suspect as well?
Kimstu:
Just kinda? There’s something seriously wrong with a country in which being accused of rape is a crime. BTW: shouldn’t the alleged victim be charged with sodomy as well?
Blaron:
I believe that the idea that people’s rights can be violated simply to satisfy a public good goes against the spirit of the Constitution; isn’t there a legitimate secular purpose in requiring people to testify against themselves? The nature of friend relationships makes stealing your friend’s boyfriend/girlfriend problematic. Should that be illegal? As for inbreeding, I hope you’re not suggesting the government has the right to regulate sexual activity on the basis of genetic compatability. That sounds suspiciously like eugenics.
Incest is, in most cases, a bad idea. But the right to make our own choices, good or bad, is precisely what the Constitution is about.
Your wish is my command, and it’s interesting that you picked Texas and Michigan. Consider affirmative action. The Hopwood case, involving racial preferences at the University of Texas Law School, invalidated such preferences at the 5th Circuit level. Thus only those states within the 5th Circuit are bound by the decision – schools in other states can merrily go on discriminating in their admissions policies.
Surely the mere possibility of difficult relationships ought not be enough to justify a ban on sleeping with your cousin. Incest is not the same thing as child molestation. **
Most folks who have studied the origins of the incest taboo conclude it has nothing to do with genetic problems, and that justification is something of an urban legend. Consider this wikipedia article:
Given that, I have a hard time seeing the justification for the ban on incest as anything more than a moral rule imposed by law – much like the ban on homosexual conduct.
My example comports perfectly with your silly little proprietary definition. Incest laws are the denial of certain sexual activities to a minority (those wishing to consummate incestuous relationships) to which the majority is not bound. Incest laws say “you can perform certain acts with anyone, so long as it isn’t your cousin,” just as laws against homosexual conduct say “you can perform certain acts with anyone, so long as they aren’t of the same sex.” The two are directly analagous, and it’s foolish to pretend they aren’t. Indeed, I humbly submit that your screaming about your precious definition is little more than an attempt to obfuscate an example you’re have trouble dealing with.
As for the rest of your post, see my response to Blalron.
Oh, and please don’t suggest I’m a trial lawyer ever again. I am a much nobler breed – a transactional lawyer. I don’t debase myself by mucking about in courtrooms. 
Just kidding, minty, just kidding…
Your response to Blalron says nothing about the difficulties of true consent in parent-child or older sibling-younger sibling situations. As for situations where such consent issues aren’t present, I would agree that incest laws do go too far for precisely the same reason as general sodomy laws.* As I said, the question is whether there is a legitimate state interest, and protecting people from coercive sex is a compelling interest by anyone’s account. Enforcing religiously-based sexual morality is not a compelling state interest. Nor is perpetuating the status quo, in case you think that the long history of sodomy laws legitimizes them somehow.
Your oh-so-cute mockery of my characterization of the ‘tyranny of the majority’ does nothing to undermine the legitimacy of the principle that minorities should not be subject to restrictions on their liberties that the majority are not willing to subject themselves to as well, or that this principle captures the spirit of one of the general themes of the Constitution.
*I would note, however, that your wikipedia article doesn’t say quite what you want it to say. It says that from an evolutionary viewpoint, inbreeding won’t result in the perpetuation of defective genes, since the offspring of inbreeding will more commonly homozygous for those genes, and will therefore die without passing on the genes, where heterozygous carriers can pass on the genes. That is, inbreeding will concentrate carriers of defective genes, who will die off, instead of dispersing defective genes amongst a lot of heterozygous carriers, which won’t ultimately be a bad thing for the population. It will, however, truly suck for those with bad homozygous genes. You might think that means siblings should go ahead and have kids, but I sure as hell don’t.
Of course it does. Incest laws are distinct from laws against child molestation and statutory rape, which address precisely the consent/power issue you describe. Doing away with one does not do away with the other. **
The article is a simple confirmation that concerns over birth defects are not the basis for the incest taboo. As it points out, incest doesn’t actually increase the number of congenital birth defects, it just concentrates those numbers within a particular family line. IOW, the article does not say that incest is a “good thing” to be encouraged, just that it isn’t a “bad thing” in the sense that it increases the number of congenital birth defects.
(Though it perhaps is a “good thing” evolutionarily speaking, since widespread incest will ultimately strengthen the gene pool).
Concerns about consent due to inequality in familial relationships extend beyond merely those involving minors. While laws not mentioning incest could be tailored to protect everyone who needs it, the laws you mention do not do so. I would be entirely supportive of any rewriting of the laws on incest to make them apply more narrowly to cases only where this is a concern, if suitable language can be devised.
Look, this is all entirely beside the point, but you’re misunderstanding the article. All it says is that a population in which incest is common is at no evolutionary disadvantage. It does not say that in individual cases of incest, birth defects are not more common. Anyways, I’m less convinced by this article upon reflection anyways, for the following reason:
Suppose that x is a lethal recessive, so that xx individuals die young, while XX and Xx individuals are healthy. If two siblings are both Xx, their offspring will be 25% xx, 50% Xx, and 25% Xx. So, a quarter will die, and of those that survive, 67% will be carriers of the lethal gene. On the other hand, if the Xx siblings marry XX’s from outside the family, there will be no lethal birth defects, and only 50% of the offspring will be carriers of the lethal gene. It seems to me that the incestuous population is at a disadvantage here, and I do not follow the reasoning which suggests that continued inbreeding will eliminate heterozygous carriers.
Of course, there’s some chance that one of the siblings will be XX, and that an outsider will be Xx, but that merely shrinks the disadvantage, it does not remove it. In a heterogeneous society such as North America, it’s probably correct to say that close relations could usually safely have children. However, in any cases where communities are more insular, and everyone is more closely related, the risk of inbreeding increases. Talk to anyone who’s ever bred animals if you don’t believe me. I remain unconvinced that the incest taboo isn’t at least in part related to the increase in birth defects seen when it is violated.
However, this is entirely irrelevant to the case at hand, and if you wish to discuss this further, I suggest another thread.
To sum up the discussion, I have held that the sexual expression restricted by sodomy laws is an important aspect of individual liberty. Dewey agrees with me, but argues that these laws should be changed democratically rather than judicially. While I agree that there are downsides to such judicial “activism”, I do not share Dewey’s optimism that laws which impact negatively on a minority for which there is widespread animus are likely to be changed democratically, and argued that the spirit of the constitution is opposed to restricting the freedom of minorities in ways the majority refuses to allow itself to be restricted. Dewey thinks that by the same argument, incest laws would run afoul the spirit of the constitution, and I have responded that insofar as they protect people from coercive sex, they do not, but admit that insofar as they overreach that goal, they do, and so I hereby admit that if anyone wants to propose a way to write narrower incest laws, I’ll be supportive. The medical stuff is all irrelevant to the law (logically, not historically), and can be discussed in another forum, if anyone really cares, which I doubt.
So Dewey, do you have any objection to courts overturning sodomy laws other than worries about straying from the letter of the law? What reasons can you give us to think that the reasoning to be found in Blackmun’s dissent in Hardwick is likely to lead to bad precedents, if it were to be used in the current case to go beyond ruling on equal protection grounds to reverse Hardwick and rule all sodomy laws unconstitutional?
Err, the correct proportions of the heterozygous siblings should be 25% xx, 50% Xx, and 25% XX.
The reasoning in Blackmun’s dissent is likely to lead to bad precedents because the cases and rationale upon which Blackmun relies are themselves bad precedent (meaning I disagree with the reasoning in the precedents, not that the precedents are unenforceable as law).
Blackmun relies on the broad right to privacy first articulated in Griswold v. Connecticut. That case essentially wrote into the constutution a brand new provision based largely on the nonsense phrase “emanations and penumbras.” The argument is essentially that because the constitution protects against searches without probable cause, it also protects other non-search-related privacy interests as an “emanation or penumbra” of the right to be free from unlawful searches. This is judicial sleight of hand of the worst kind – there is no basis for an “emanation or penumbra” outside of the policy choices favored by the Brennan court. “Emanations and penumbras” might well as read “because we’re making this shit up as we go along.”
Far from being a hypertechnical legal objection, my objection goes to the very basis of the concept of the rule of law. When constitutional rules can be made up out of whole cloth, without any rational textual basis in the constitution itself, we cease to be ruled by law and start to be ruled by men. The Constitution is the people’s document; it ought not have things added or subtracted from it without the people’s consent. Although judicial interpretation will always be necessary, that interpretation should always be limited to the scope of the text of the document in order to guarantee we remain a society ruled only by the consent of the governed.
Account of the proceedings so far (though obviously scoffing at one side):
http://slate.msn.com/id/2080746/
I do think it sums up the attitude presented by Texas as
I have to say: I’m at little surprised at Scalia on two counts here.
First is that he gets near a line between pointing out potential legal arguments and views and simply showing his personal hand in the issue with sarcastic comments like “Only that children might be induced to follow the path to homosexuality.” I could be reading him wrong, I guess.
Second, and more direct, is that Scalia very strongly seems to imply that gays SHOULD seek to get added as a protected group in civil rights law if they want to meet legal standard of social approval (not even for sex acts: just as a group). He uses their failure to be protected against them. That seems to be the opposite of what other prominent conservatives argue about civil rights protections: that they serve no purpose other than to specially favor groups. Now it seems that Scalia is endorsing (maybe not intentionally, but it’s the clear implication of his statements) it as being a necessary hurdle for the gay rights movement.
With all due respect, Dewey, I consider your stated position to be utter horse manure. I dislike Douglas’s “emanations and penumbras” language, myself, and thought it would be bad law until I read opinions in which he used such formulations – and discovered that what he meant by them was the self-operating concomitants of having a given formulation of a right mean anything.
Let me construct a scenario for you, bizarre as it may be. (I was born on the day that Truman won the Presidency despite unanimous views of all pundits that he’d lose, and was told as a small child that we’d never put a man on the moon; I’ve lived to see the Evil Empire suicide, a war ten years ago in which Russia, Germany, England, France, Saudi Arabia, and Israel were all on the same side with us, and nothing surprises me any more!) Following a successful Operation Iraqi Freedom, Bush surprises the world by putting into place a coalition interim government, which proceeds to enact a stable government turning Iraq into a model Islamic democracy, not necessarily always agreeing with us but stable and friendly. Virtually all the Middle East suddenly shifts to a pro-U.S. stance in consequence, and world opinion does a sudden buck-and-wing in favor of Dubya. With Powell rapidly forging a new friendship with the Arab world, Israel takes on a severely militant stance, and starts sending out terrorists (with plausible deniability) to disrupt this state of affairs, which they deem hazardous in the extreme to their national survival. Anti-Semitism (meaning anti-Jew-ism in this case), never far from the surface in the West, suddenly becomes again respectable in consequence of these terrorists and their reputed link to Israel. Internally, the U.S. is faced with what’s essentially guerilla warfare between Arab Americans and Jewish Americans supporting their respective homelands. (Yes, all this is improbable, but stranger things have in fact happened; all I’m doing is structuring a scenario where the next paragraph is at least vaguely justifiable.)
Now, I think that under this hypothetical scenario, we would have a legitimate governmental objective in preventing conspiracies to continue the terrorism and internal guerrilla warfare. Therefore, an act regulating Islamic and Jewish activities in America is passed by a complaisant Congress, not without dispute. Among its provisions are:
[ol][li]No Jewish or Islamic gathering for worship may exceed five adult males in number.[/li][li]Sermons addressing certain specified aspects of each belief, including the jihad and the moral responsibility of Jews to support Israel, are not to be preached. The rabbis and imams who might hold these views are entitled to promulgate them one-on-one but may not preach on them.[/ol][/li]
Do these constitute violations of First Amendment rights? The right to express opinions freely is preserved; the right to gather for worship is preserved. Or are they invasions of the “penumbras” of First Amendment rights? Does a man retain freedom of speech if he is permitted to speak his mind only where nobody will hear him? Does he retain the right to counsel if his appointed counsel sleeps through much of the trial? (That last is from a real capital case here in NC, so don’t laugh at it – and the court’s ruling was that it did constitute effective counsel, because there was no showing that the parts of the trial during which his attorney was asleep were ones that interfered with his receiving a fair trial. :mad: )
Mr Visible and I, as the Defense-of-Marriage conservatives are fond of saying, both retain exactly the same right: to marry the willing woman of our choice. That I was fortunate enough to find the woman who has fulfilled my life in ways nobody else could, while he is not in the slightest interested in marrying any woman, is moot, on that argument.
Perhaps, as you argue, the Ninth Amendment is a truism. But without some judicial interpretation, most of the amendments are similar nullities. “Sure, we can draw and quarter him as a punishment for this crime.” “Cruel and unusual”? There’s precedent for having done it in the annals of English law, and besides, the legislature specifically provided that such a punishment was not an Eighth Amendment violation in justifications clause, and their view, being elected representatives of the people, holds. “Black people don’t have the vote? Don’t be silly! They’re entitled to vote for either of two slates of white electors for President and Vice President, and they can choose two representatives from among themselves to serve in the state legislature. We respect their Constitutional rights around here, suh!”
I think there are limits to judicial activism – I personally agree with the results of Roe v. Wade but believe that Blackmun’s opinion was the muddiest bit of judicial reasoning since Nathan Clifford retired. But a broad-brush constitutional guarantee means nothing if there is not a court willing to construe what it might mean in a given case. And more and more often, it seems that “strict construction” is a euphemism for “a constitutional guarantee means nothing unless our party agrees with it.” And that, from either party, is highly offensive.
Like it or not Dewey, the precedents are here to stay. I’ve already pointed out how impractical it would be to reverse all decisions that went against your constitutional views.
I’d note one thing about the 14th amendment Due Process Clause that you’ve been claiming has been abused. The Republican Congress during the Reconstruction undoubtedly knew about the “Substantive Due Process” angle that had been applied to the 5th amendment with regard to federal action, so they must have known that they were giving wide discretion to the judiciary to determine what “Liberties” could not be taken away without Due Process when they adopted the 14th.
It is neccesary, and proper, and good, that the Supreme Court can give backward southern states a judicial kick in the rear end to catch up with the rest of the nations conceptions about what essential liberties are.
Your arguments that persuading the populace is a better option than judicial fiat is not without merit. But irrational hatred and bigotry, especially one that is religiously based and pervades and dominates an entire state, is a force that is next to impossible to reason with. It’s hard to get past “The Bible says it, I believe it, that settles it.”
[QUOTE]
*Originally posted by Polycarp *
**Among its provisions are:[ol][li]No Jewish or Islamic gathering for worship may exceed five adult males in number.[/li][li]Sermons addressing certain specified aspects of each belief, including the jihad and the moral responsibility of Jews to support Israel, are not to be preached. The rabbis and imams who might hold these views are entitled to promulgate them one-on-one but may not preach on them.[/ol]Do these constitute violations of First Amendment rights? The right to express opinions freely is preserved; the right to gather for worship is preserved. Or are they invasions of the “penumbras” of First Amendment rights? **[/li][/quote]
One need not reach the absurdity of a “penumbra” to find either provision unconstitutional. The first provision is a clear violation of the right to peaceably assemble. The second is a content-based speech restriction, which is the clearest violation of “free speech” imaginable.
**
It isn’t enough for something to have been done in the “annals of English law” to be cruel and unusual; after all, the Bill of Rights, in part, was written to address abuses inflicted on the colonies under British rule. And the view of the framers of the Constitution, not the view of the drafters of some subsequent legislation, properly controls the definition of constitutional terms. Neither of your justifications holds water here, and neither requires recourse to extraconstitutional rights via “penumbras.” **
This would be a violation of the constitutional guarantee of a republican form of government. Art. IV, s. 4.
While I agree that outright reversal of many of those decisions is unlikely, and may even be undesirable in certain areas due to their deep embedding into the fabric of the law, that alone is not justification for further expansion of judicially-created extraconstitutional rights. Just because the courts have usurped power in the past is not justification for further judicial power grabs. **
The only genuine use of substantive due process prior to the passage of the 14th amendment of which I am aware was in the Dred Scott decision – hardly a favorite judicial moment for the Radical Republicans. Dred Scott, even at the time it was handed down, was met with scorn and disapproval, both popularly and in the legal community. To suggest that the framers of the 14th agreement agreed with Taney’s interpretation of the constitution is odd to say the least. **
Ah yes, I see, you’re right – compared to all the rational, meritorious, non-bigoted arguments against giving women or blacks the right to vote, arguments which did not pervade an entire state or resort to religion for their force, the opponents of the sodomy law really do have a tougher row to hoe. :rolleyes:
Surely they were aware of it, if they wanted to clarify the meaning of “Due Process” with their Reconstruction amendments they could have. They probably declined to do so, realizing it was a double edged sword that could be used for good after their constitutional changes (such as reclassifying blacks as persons rather than property) were made.
Cal Thomas,
"Adoption laws in some states now give children to same-sex couples. If the Texas sodomy law falls, “marriage” will be redefined and the demise of the human family will be complete. "
Well, Cal Thomas is an idiot. That’s hardly news.
Blalron: Oh for Christ’s sake – if drafters went around clarifying for every oddball aberration of a case that came out of the judiciary, the Constitution would be longer than War and Peace.
It seems to me that the various arguements made here boil down to two perspectives. Dewey, it seems to me, believes that rights are granted by the state. The other side argues that we are free to do as we please unless the state or federal government can show why a right should be constrained.
I don’t think of “extraconstitutional” rights as a judicial power grab, because they aren’t grabbing power with these rulings, they are limiting the government’s over-reach of power. Which is as it should be, I think.
And if they listed every right it would be even longer. We should start from a base of freedom and limits should be justified. Sodomy laws have no justification outside of a religiously-based bigotry.