Exactly. All we have are representatives. For something so heated, national referendum is the only true answer. Referendum for states can be overturned by the supreme court. National referendums would not have that option.
Last I checked the Constitution has been amended 27 times. 28 should be the addition of a referendum for a heated issues that divide the nation… actually heated issues that divide the representatives.
Gallup has 68 percent of the US supporting national referendum. The only presidential candidate to support it was Ross Perot and he was considered a whack job. Apparently the number of whack jobs has increased since that election.
Sure they would. State referenda that violate that state’s constitution can be overturned by the state SC, unless they are actually amending the constitution. Now, unless you are proposing that a national referendum needs a super majority to pass, then you’d be creating an entirely new and unprecedented way of amending the constitution. I certainly wouldn’t support such a proposal.
Yes. However, I believe that such a law would be absurd and I wouldn’t vote for it and I would vote to repeal it were a member of the legislature. Hell, I could have been convicted of violating those laws pre-2003 so that tells you my personal beliefs as to their merit. But I don’t think that there is anything in the constitution that gives me the right to get a blowjob anymore than to drive 71mph on the freeway.
Sweet Caroline. First, gay people are not a “discrete and insular” minority. Prisoners, for example, resort to sodomy when nothing else is out there. Some women have, for lack of a better term, “lesbian experiences” in college. Some people who are gay by choice/birth/genetics refrain from sexual activity. There is simply too much “crossover” to shoehorn sodomy into a “discrete and insular” minority. I’m sure if you defined the rule to create the class, then you could have a point, but that illustrates the problem with the rule. Under the Caroline Products rule alcoholics, public nudists, wife beaters, and drunk drivers could be a protected class so long as I get to define the class.
No political power? A majority in the US support same sex marriage. Hardly the epitome of no political power. ETA: Which is another problem with the rule. One has no power today might have power tomorrow. The rule prevents the democratic process from evolving. Look at Brown…almost 60 years later there are still desegregation cases in court. Wait a few years and the opposition is not so fervent when the legislature speaks.
Two edits: The answer to the first quoted text is “I’m not sure what you are saying. And no.” I’m not sure what the contours of a “fundamental right to sexuality” are.
To RNATB, I post too fast. I realize that the correct spelling of the case is Carolene, but in law school there was a (rather good looking) female in the class from South Carolina that always kept bringing up footnote 4. She got the nickname (not made up by me) of Sweet Carolene, and at an end of the 1L year party someone played Sweet Caroline in jest to her. Old habits die hard.
See, that kind of thinking just boggles my mind. I think it’s pretty clear in the 9th Amendment to the Constitution that there exist fundamental rights, outside of those enumerated in the Bill of Rights, that are protected from interference by the government. And I’d be hard pressed to find one such right that is more private, more “implicit in the concept of ordered liberty” than what I do in the intimacy of my bedroom with another consenting adult, or my decision whether or not to procreate. I just don’t get why people throw aside common sense in favor of “if it isn’t enumerated it doesn’t count” in the realm of protection from governmental interference.
But on the flip side, the 9th amendment can’t mean “Anything I think should be a fundamental right.” There has to be a balance. You’ve defined a right as you did above about sexual intimacy in a private bedroom, and further said that you can’t fathom something more private.
So when deciding if your (or my) idea of what is a right covered under the 9th amendment, we have to look at something to support of idea of a right, correct? We can’t just open the door and declare that if it seems like a positive idea then it’s covered under the 9th amendment. If we did that, then there is no need for a legislature. Just let the courts decide “good” and “bad” and file it under the 9th amendment in two different sections.
So we need a basis. The first obvious one is “What did the people who wrote the 9th amendment mean by it?” Under that test, they clearly didn’t include private sexual behavior because those same people outlawed the list of nasties discussed above.
Others pay little heed to what the founders said, so they want to use “evolving standards” of what society expects. What is that based upon? Thirty some states have constitutional amendments banning same sex marriage, and more than ten banned sodomy before Lawrence. Who decides these standards? Judges? Blue states? Or, *shutters red states since there are more of them?
The “evolving standard” doctrine under the guise of protecting and recognizing rights actually protects absolutely NO RIGHTS AT ALL because ten years from now one could argue that whatever right you think you have is gone under my new test.
Do you have a better test to gauge rights? Not that I disagree with your opinion, because like I said, I do agree with it. But what foundation do we base rights upon if not the people who wrote the text?
Would it be reasonable to say that based on your post here then that what’s important about founder’s positions wasn’t that they were written by the founders, but that they’re (theoretically) stable? Or at least more stable than a referendum-style vote?
I mean, based on the idea that changes to legislation or interpretation of legislation mean we run the risk of it just being changed willy-nilly by every judge who has a different idea, then any standard set of rules is as stable as “founder’s positions”. If anything, you could base the laws of the country on my personal opinion, which would be even more stable given that you can actually ask me questions about what I mean rather than have to interpret the text of the Constitution and the writings of those founders. Purely from the point of stability being better than laws changing at a whim, that would be a better system, wouldn’t it? So I suppose I do have a better test to gauge rights.
Of course we can’t. It would certainly involve using precedent and legal analysis. You know, stuff that the judiciary already does. It would certainly be more honest and less tortured than creating “substantive due process” or stretching some things to fit the Incorporation doctrine.
That’s not true. Just like almost everything else in the Constitution, all three branches would have a role to play in the determination of what rights should be protected and the limits of those rights. The legislature is more than empowered top create/limit rights as they see fit, and the judiciary can rule on those matters also. And if the legislature decides they disagree with the judiciary, they can amend the Constitution that the judiciary interpreted. It seems much more desirable, and in line with the natural rights theories during the founding, to have the burden of amending the constitution to be on the ones who want to deny rights of citizens than on those citizens who want those rights.
This is no different than what is going on right now in our system of government. We, as a society, are debating what rights should be protected, how we decide what those rights are, and what the limits of those rights should be. The only problem is that you seem to think that the legislature is the only branch of government that should be doing this, while I think that all branches of government should. I think my position is much more in line with the concepts of a limited government, checks and balances, and protection from the tyranny of the majority.
And that’s different from now, how exactly? All these complaints are complaints that are true for any system of government, including the way things are now.
You want “implicit in the concept of ordered liberty”? Use that. You want to look to the judicial precedents in the area of “substantive due process” or “fundamental rights”, do that. The caselaw is out there that is doing this already. Rights to medical decisionmaking, rights to self defense (with a gun), privacy, non-verbal speech, child rearing, and a slew of others have all been subject to these kinds of determinations.
The reason, I think, that the judiciary went through all the tortured logic of substantive due process and the determinations of whether rights are fundamental is because the courts finally realized what the 9th Amendment had said centuries ago, that the enumeration of some rights in the Bill of Rights shouldn’t mean the unenumerated rights are unprotected from governmental intrusion.
I think any problems you have with the system of determination of rights and their limits would pale in comparison to the problems that would arise if suddenly your side won and all those unenumerated rights disappeared and were subject to the whims of the legislature without the judiciary having a role to play at all. Not only would those problems be a bad thing, but they would also fly in the face of the Constitution.
First, gay people are not a “discrete and insular” minority. Prisoners, for example, resort to sodomy when nothing else is out there. Some women have, for lack of a better term, “lesbian experiences” in college. Some people who are gay by choice/birth/genetics refrain from sexual activity. There is simply too much “crossover” to shoehorn sodomy into a “discrete and insular” minority. I’m sure if you defined the rule to create the class, then you could have a point, but that illustrates the problem with the rule. Under the Caroline Products rule alcoholics, public nudists, wife beaters, and drunk drivers could be a protected class so long as I get to define the class.