I'm inclined to agree with you on this one, Bill.

There are many part of the Constitution where I would read a right to a reasonable expectation ofprivacy as you detail, but nowhere have I seen anything like what Big Trunk says.

I think the guys have over-reached a bit on this one.

I don't think I can agree with you on this one. When the Constitution was written there were many laws on the books that outlawed homosexuality. For that matter it was Thomas Jefferson that signed into law, in Virginia (I believe), a law that ended the death penalty for homosexual behavior (a move by Jefferson that I agree with). If the Constitution is silent on laws that were already on the books when it was written, then I believe that the Constitution left those decisions to the States. Which means that if a state outlaws homosexual behavior, whether in private or in public, it is not a violation of the Constitution.

It is not the purpose of the Judiciary to impose laws on the public, but the purpose of the legislature. Since Lawrence v. Texas, many judges have used that decision to create law where none existed before or to usurp the legislature and brand a law as unconstitutional. It is my belief that the writers of the Constitution did not agree with you either.

I'm inclined to disagree.

The "right to privacy" is way too broad to be a constitutional right. If, as you argue, the Constitution protects your right to act as you wish, as long as you do it out of the public eye, then the following acts should also be "constitutional" in the privacy of your own home:

1) Using illegal drugs
2) Prostitution
3) Conspiring to commit an illegal act (e.g. planning to rob a bank)
4) Bomb-making
5) Murder
6) Cock-fighting

...and so on. Clearly the "right to privacy" has limits - the limits being "any action deemed illegal by a majority of citizens, duly voted on and passed by a legislative body". Which is what the citizens of Texas did - passed a law against Sodomy. Just like the laws passed against murder, drug use, etc.

What you seem to actually be advocating, then, is the "Constitutional Right to Private Acts of a Sexual Nature". This would seem, clearly, something of a reach to read into the Constitution - as you say, they stay away from the "freeky-deaky".

Conservatives problem, then, with the "Right To Privacy" argument is that it is basically meaningless - it can be applied to justify any action, unless you impose some arbitrary qualifier like "of a Sexual Nature".

Just my $.02

1. If the Constitution is silent on laws that were already on the books when it was written, then I believe that the Constitution left those decisions to the States.

Right, like slavery.

2. the Constitution protects your right to act as you wish, as long as you do it out of the public eye, then the following acts should also be "constitutional" in the privacy of your own home:

1) Using illegal drugs
2) Prostitution
3) Conspiring to commit an illegal act (e.g. planning to rob a bank)
4) Bomb-making
5) Murder
6) Cock-fighting

Of those, only illegal drugs and prostitution are analogous, since the others obviously involve harm to other parties. Laws against prostitution are circumvented by clever exchanges of money and assertions of "consensual behavior" by hookers that are off the street; a more compelling case about protection of the public interest (once again, "harm" to others) can be made against streetwalkers that engage in sex and solicitation in public, acting as a magnet for violence and drugs.

The issue of llegal drugs can be pretty analogous, but only in the context of home use, and the "hardness" of the drug can stray into territory of harm (think regulation of toxins). But you are right, I also think that current drug laws are too invasive.

And drc - I take this to mean that you would find a ban on blowjobs constitutional?

Trunk's argument is the sort of thing that makes me remember that while I may sometimes vote Republican, I could never actually be Republican.

What the social conservatives never seem to grasp is that rejecting the criminalization of private, consensual, sexual behavior is not the same as stamping the Official Governmental/Societal Seal Of Approval on that behavior. Nobody's asking the social conservatives to like the gay buttsex; just to leave the folks that do alone.

I agree with drc that the Constitution does not create a broad right to privacy. I would also hold that it does not create any right of privacy. I'll set the latter argument aside and address only the issue of defining this right of privacy.

The federal government only has the power granted to her by Constitution. All other powers belong to the several states and the people. Among the many powers not granted to the federal government is the right to define the meaning of the this right of privacy. As this power is unenumberated by the federal constitution that power belongs to the several states, to define as they see fit.

From the state level, I would resolve the Roe problem by defining human life as being at conception and damn the Supreme Court if she ever tried to change it.

As to the Ninth Amendment, carefully note the language. The Ninth reads that Constitution can not be used to deny rights. However nothing in the Constitution gives the federal goverment, or the Supreme Court, any power to create rights. That the Constitution protects rightes, whether specified on not, as they existed at the time the of ratification.

As the questions of proscriptions on abortion and sodomy, they were commonly so restricted by the several states at the time. That is they were question for ths several states to decide and not for nine perverts in black robes.

The Ninth reads that Constitution can not be used to deny rights. However nothing in the Constitution gives the federal goverment, or the Supreme Court, any power to create rights.

Who is "creating" a right? This is not the creation of a right to gay sex; it's a recognition of a limitation of government's power by the Constitution (as highlighted by the various amendments referenced in the post). Thus, the rights were "created" upon the inception of the document.

It scares me how many of you will rise up to attack this concept in order to decry "nine perverts in black robes." How many rights would you give away to government?

And the funny thing is, I never seem to hear any social cons address the (now) commonly accepted judicially-imposed limitations on previous unjust laws that addressed issues that weren't spelled out explicitly in the document, like slavery. Or address unjust constitutional text that was specific, like passages related to native Americans.

"And drc - I take this to mean that you would find a ban on blowjobs constitutional?"

Absolutely. In the same way that I would find a law that prevents you from combing your hair into a pompadour is "constitutional". Or buying Whiskey on Sunday. Clearly, nothing in the Constitution protects your right to comb your hair in the manner you see fit, or buy alcoholic beverages on a specific day of the week.

If a duly-elected legislature passes a law, such as an "anti-blowjob" law, there are methods by which the public can reverse those laws. Inventing abstract, judges-opinions "Constitutional Rights" to over-rule legislative bodies at the whims of those black-robed men, is not Constitutional. The "Right To Privacy" argument is simply a way of substituting "9 people in black robes" opinion for proper legislative procedure.

The REASON that the Bill of Rights enumerates those rights is to restrict the power of the Federal Government, and guarantee the people, via their state governments (see 10th Amendment), the right to govern themselves as freely as possible. The "Right to Privacy" is not enumerated, and clearly oversteps the rights reserved to the states and the people to pass laws as they see fit.

People never seem to remember that the Constitution is a FEDERAL document, aimed at limiting FEDERAL government - not a carte blanche excuse to overrule state and local governments and their duly-elected legislatures.

Who is creating rights? Five out nine perverts in black robes. When a question like abortion was regulated by the several states at the time of ratification, when the Supreme Court has that women have a right to abortion, when no right existed before, the court is creating a right out of whole cloth.

As to the Fourteenth Amendment, it was ratified with the intent to extend equal rights withour regard to race. It was not intended to apply to sex. The Nineteenth Amendment extended the francise to women. So the Fourteenth included race but excluded sex.

Now if a justice in black robe makes the arguement that the Fourteen somehow extends federal constitutional protection on the basis the sex of one's sexual partner, that person is a lunatic. The Fourteenth does not prohibit discrimination based on sex. Witness the Nineteeth and the proposed ERA. Yet somehow we to believe that the Fourteen prohibits discrimination on the basis of the sex of one's sexual partner.

Evidently drc's copy of the Constitution does not include the Ninth Amendment.

Bill is totally correct on this one. The whole idea behind the 9th amendment was to note that the people had all kinds of rights that couldn't possibly be enumerated, thus those rights were to be upheld even though they were unenumerated. It does exactly what Bill says - limits government's power to restrict pre-existing rights. It puts the burden of proof on the STATE to show that there's reason to deny a right, rather than on the people to demonstrate that the Constitution expressly enumerates such a right.

For example: do you have a constitutionally-protected right to wear a green hat? Yes you do, even though it's not in the document. The "unenumerated rights" or "privileges and immunities" that the document mentions refers to just those sorts of things. (See Randy Barnett's wonderful *Restoring the Lost Constitution* for more on this argument.)

And, it's worth noting, that the status of the "right to marry" as a fundamental constitutional right is right along these lines. It's nowhere in the document, but the SC has understood it to be one of those unenumerated rights covered by the 14th amendment (I'd prefer the 9th myself, but...). For the social conservatives who don't like unenumerated rights, you're going to have to show me where the Constitution protects property and contract rights then. Those rights, like the right to marry or the right to wear a green hat, pre-date the Constitution and are exactly the sort of thing the 9th and 14th were intended to protect. And for a brief few decades around the turn of the 20th century, the court actually understood that.

What's really cool about Lawrence is that they may have rediscovered it.

Bill, although you cite to the 9th amendment, that amendment really is beside this issue. The Powerliners are disparaging finding a particular kind of right to privacy in the constitution. The 9th amendment merely says that if a right isn't written in the constitution, it might still be founded in some other source of law and might not be deemed implicitly to have been overridden by the constitution merely because it wasn't written there as well. The 9th amendment is not a warrant to read into the constitution rights that aren't mentioned within it. Instead it merely cuts-off a line of argument that some might use in future disputes to argue that a pre-existing right, founded on other law, had been overridden by the constitution merely by having been left out of the constitution. The problem for advocates of rights that are not clearly written in the constitution is that if a state government has the power to override such rights (note that the 10th amendment makes sure that state powers to restrict rights remain with the states except as to powers delegated to the federal government), the only way to overturn the state action and restore the right is either to get a preemptive federal statute (provided that the constitution delegates to the federal government power to act in that area) or else prevail in arguing that the unwritten right is in fact a written right, written in the constitution. Advocates who know they can't get a federal statute passed, and who decide not to try to get the particular state's courts to declare that the state itself lacks the power to limit the right (perhaps due to the state's constitution), are left only one avenue: to argue that the right is written in the federal constitution. The Powerliners are complaining that in this instance, no such right is written in the federal constitution, and the decision that says it is so written is wrong. This is not really a democrat vs. republican kind of argument, it is an argument over what sources of law give support for the existence of certain rights, and what sources of law restrict the powers of which governments, federal state, to limit those rights.

In essence, Bill, Brett and Steve of the Green Hat are arguing that the 9th Amendment permits the U.S. Supreme Court to strike down any law, at any time, based on what they think constitutes an unenumerated right?

I don't know, Bill. From the standpoint of sheer practicality (i.e., enforceability) I think you're probably right; from a strictly constitutional viewpoint, I don't think your case is as strong, but it's still pretty strong (at least you've made a logical and coherent case for your position). But what about a situation where privacy rights collide with property rights? I'm not a libertarian, merely a conservative with some libertarian leanings, but I would genuinely be interested in knowing what the purist view would be on the following scenario.

Let's say an elderly and very devout Catholic couple owns a rental property, say a duplex. They object on moral grounds to homosexual practices, but are reasonably tolerant people who live and let live. They have a vacancy and are approached by a gay couple ("how do they know", you ask? Let's just say that Adam and Steve come in holding hands and brandishing a New York marriage license). Should the prospective landlords be compelled by law to rent out a unit to this couple, knowing that, in doing so, they are providing the facilities for activities that they find morally reprehensible? Do the gay couple's privacy rights trump the landlords' property rights?

betalune -

That's an interesting question. But again, from the standpoint of enforceability, it's also pretty hard to determine. I would tend to believe that private arrangements are at the discretion of the individual, and thus the elderly couple has the right to not rent the edifice out to whomever they don't want as tenants.

You are also presenting a situation that mandates the determination of whether gay rights are equivalent civil rights to other traditionally discriminated against groups. While I may agree with that to a certain extent, I'm not waging that argument here; I'm merely asserting the "negative" rights of individuals not to be bothered when engaging in activity that inherently injures no one, not even themselves.

This is a much more straightforward argument, especially when you're talking to conservatives and liberals that value the basic freedom to shag however and whomever they feel like shagging.

Yeah, baby. Yeah!

You had me right up until "based on what they think constitutes an unenumerated right", drc. There's obviously a context for what constitutes an unenumerated right.

A Supreme Court that strikes down arson laws on the basis of an unenumerated right to burn one's neighbor's house down has clearly wandered off the reservation.

On the other hand, a Supreme Court that strikes down anti-sodomy laws on the basis of an unenumerated right to privacy that finds ample support in our common law tradition, is one I have absolutely no problem with.

As to the "any law, at any time" bit -- you are aware that the Supreme Court has jurisdiction over all questions arising under either state or federal law, right?

betalune --

Do the gay couple's privacy rights trump the landlords' property rights?

That's... a rather non-sequitorish hypothetical.

Adam's and Steve's privacy rights accord them license to indulge in wild, bouncing-off-the-walls, hanging-from-the-chandelier, buttsex within the privacy of their own home, without interference from the government.

Those rights do not impose an obligation on the part of elderly Catholic couples to accept Adam and Steve as tenants.

A Supreme Court that strikes down arson laws on the basis of an unenumerated right to burn one's neighbor's house down has clearly wandered off the reservation.

As I've stated repeatedly now, we're making a common sense distinction between situations that are

A. Strictly benign or Injurous to others

B. Do or do not involve government intrusion

So I can either sit here and swat down the litany of arson, murder, rape, pedophilia arguments that folks want to toss at me, or we can accept this precondition and move on.

As to the "any law, at any time" bit -- you are aware that the Supreme Court has jurisdiction over all questions arising under either state or federal law, right?

Are you talking to me? Is there a slack-jawed retard standing behind me? Is it Oliver Willis?

I may have written the line somewhere and have selective memory loss (possible), but the "any law at any time bit" that you are quoting to escapes me.

Of those, only illegal drugs and prostitution are analogous, since the others obviously involve harm to other parties.

Neither bomb-making nor cockfighting involve injury to other parties. (Chickens are not protected by the Constitution.)

mcg -

I have very little patience for semantical horsepoo.

Bombs are destructive materials that tend to kill large groups of people.

Animal abuse is considered frivolously cruel to living things.

Are you going to make me play annoying word games?

"As to the "any law, at any time" bit -- you are aware that the Supreme Court has jurisdiction over all questions arising under either state or federal law, right?" - Brett

But they can only overturn laws if it is "Unconstitutional" - they don't have the right to simply decide "we don't like it just because" - i.e. "any law, any time".

"As I've stated repeatedly now, we're making a common sense distinction between situations that are

A. Strictly benign or Injurous to others

B. Do or do not involve government intrusion"
- Bill

Who gets to be the arbiter of point A? And where is the "strictly benign vs. injurous to others" distinction in the Constitution? Homosexual men have a life expectancy significantly lower than heterosexual men. Homosexual activity is inherently medically dangerous. Who gets to qualify whether it is "strictly benign" to perform sodomy?

Answer: It is the _legislature's_ job, on behalf of the PEOPLE, to make those determinations - NOT the Supreme Court.

If we accept Bill's premise that there is a Constitutional Right to Privacy as long as it is "Strictly Benign", and allowing the Supreme Court to be the arbiter of the definition (Which, Bill, is why your argument becomes "any law any time") of "Strictly Benign", this leads EXACTLY where Powerline, and Justice Scalia, say it does:

"Lawrence is in a sense only a few steps further down the jurisprudential arc that will end, as Justice Scalia noted in dissent, in the constitutional right to homosexual marriage, prostitution, bigamy, and adult incest."

I might also add that conspiring to commit an illegal act is not in itself injurious to anyone. After all, one could decide the conspiracy was infeasible, or one could come to one's senses.

Bill,

No, I'm going to make you be consistent. Either privacy means something, or it doesn't. If you're not willing to lay down clear principles under which privacy can be violated by the government, then you're the one playing games.

Now let's address your challenges:

Bombs are destructive materials that tend to kill large groups of people.

So what? Guns kill people too, but only when they are used. How can you establish what I am going to use them for?

Animal abuse is considered frivolously cruel to living things.

OK, so what? Like I said, animals are not constitutionally protected; and why should frivolity be illegal?

Seriously: while I consider my bomb-making example more of an exercise, this one is genuine. If you are a staunch defender of the ninth amendment, how can you justify restricting my rights to do with my non-human property as I see fit? Chickens and other animals are simply not protected by the Constitution in any way, shape, or form. Animal cruelty laws therefore restrict my ninth amendment rights, according to you.

And while we're at it, please take a stab at conspiracy as well. If I make plans to rob a bank in the privacy of my own home, and I change my mind, is that still illegal?

OK, let's combine my animal cruelty and bomb-making examples into one fun exercise. Let's say I own a large plot of private property complete with a lake stocked with fish. The lake is completely contained within the property and is only therefore used by me. I decide to make some pipe bombs and go dynamite fishing with them. Am I constitutionally protected? If not, where is the injury?

I'm sure you think I'm trolling but the fact is that extreme examples expose inconsistencies in principles.

Bill... I think you miss the Powerline guys point

the very arguments in Lawrence V Texas were used mear months after the fact to make the first full court assault to the right to polygamy ( and really the right to state sanctioned polygamy) using many of the same arguments the court in boston, that judge in brooklyn, and that judge in san fransisico used for gay marriage

If you don't have a boundry line reading "this far and no farther" people will cross that line... it's
a thing we humans do. That was the whole point of the bill of rights and the amendment's to the constitution in the first place. A line of NO

In the past olde lines of no were undone by a social values change ( during the Jim Crowe days the vast majority of folks outside the south and a strong minority inside the south felt it was wrong legally) with Abortion, Lawerence V Texas, and some other cases the social change which the court recognized isn't as clear

And also -For the record- I thought that the enforcement of sodomy laws by texas, georgia and a hand count of states was ridiculous anyway... most states left that on as their blue laws

but i am not happy with why the ruled as they did in lawrence

drc -

Now we are getting a bit, uh, absolutist. Perhaps my fault, as I used the word "strictly." There is a common sense component to all of this, a component that is necessary to interpret the highly subjective topic of law.

If you would like to argue for banning sodomy for the good of the participant's health as an exercise to attack my point, have at it. I find the concept - especially considering the innate complexity of the topic of homosexuality and the myriad of heterosexual behaviors - to be so ridiculous that it's not even worth the rhetorical exercise.

As for Powerline's fearful slippery slope worry, 2 of the 4 examples are - and read slow so you can follow me here - assertions of POSITIVE (not negative) rights, and are PUBLIC INSTITUTIONS, an entirely separate standard from private non-injurous behavior in the privacy of one's own home.

As for this:

Answer: It is the _legislature's_ job, on behalf of the PEOPLE, to make those determinations - NOT the Supreme Court.

I am sick and Godddamn tired of conservatives conflating judicial power with evil, pining for a robotic rubber stamping of law by duly elected representatives, asserting the eternal superiority of the legislature. The court's JOB is to interpret the law and serve as a counterweight to legislative OVERREACH. So you can mentally stroke yourself over POPULISM or PEOPLE POWER or THE WILL OF THE MAJORITY all you want, but this ignores both the natural checks and balances of government, as well as the inconvenient contradictions to your favored theory - THAT NO CONSERVATIVE EVER ADDRESSES - like, you know, SLAVERY. MISCEGENATION.

Legislatures naturally reflect the will of the majority. And considering the fact that this is a Republic that protects the rights of minorities and individual freedoms against the tyranny of the majority, and not a lynch mob government, it is often the JOB of the court to slap lawmakers back.

So I find this argument, waged as if it's some sort of absolute truth, to be ideologically motivated dogmatic caca.

Now I'm going to bow out of getting into a long back and forth and go to sleep.

Everyone knows where I stand, so dicuss with each other, as subsequent comments addressed to me will remain unanswered.

Chickens and other animals are simply not protected by the Constitution in any way, shape, or form.

It is generally accepted that animal cruelty is malicious behavior that harms a creature. Animal cruelty is also closely associated with cruelty and violence to humans. And while chickens aren't humans or protected by the Constitution, they aren't quite inanimate objects, either.

There is a common thread running through all of these discussions that is essential for an effective argument: some call it common sense, some call it generally accepted societal taboos, in other instances it's rational self-preservation.

Without these basic frames of reference, we can argue anything as abstractly as we'd like.

BUT - I'd put forth that it is much more relevant for you to argue that a ban on heterosexual blowjobs is acceptable law that doesn't violate your right to privacy, rather than bringing up chickens and bombs.

But we all like our blowjobs, don't we?

I'm out too, but before I go I'll address the SLAVERY issue since Bill says noone will.

Slavery was a BAD THING. The American People fought a war to eliminate this BAD THING entirely. They passed a LAW to eliminate slavery. This is what is known as "following the Constitutional process" aka "playing by the rules".

At no time did a group of Supreme Court Justices get together and say "Slavery is Un-Constitutional" and find a "Right To Non-Slavery" in the Constitution. Would it have been for the greater good if they had? Yes. Would it have been an Un-Constitutional abuse of power? Yes.

The Constitution is NOT a guarantee that we will always do the right thing. It IS a set of rules that we, as a Republic, have agreed to abide by. The Right To Privacy is not one of those rules. It cannot be, because it is so broad that it cannot be enforced.

If Bill, et. al. would like to add an Amendment to the Constitution that says "All citizens of the U.S.A. are guaranteed the right to behave in any manner they see fit in non-public venues, so long as it meets the criteria of benign behavior not injurious to a third party, with the Supreme Court being the sole arbiter of defining Benign", feel free. It's not in the Constitution. Saying it is is just wishful thinking. Supreme Court Justices acting as if it is, is an abuse of power.

The court's JOB is to interpret the law and serve as a counterweight to legislative OVERREACH.

So you trust 9 people out of 250 million to tell us when we've overreached? That's scary. How are they supposed to know? Because it just makes sense to them? Because Bulgaria says so?

I cannot help but think that the only reason that's not scary to you is that, at the moment, the majority of their key decisions are going your way. (More on that later.)

So you can mentally stroke yourself over POPULISM or PEOPLE POWER or THE WILL OF THE MAJORITY all you want, but this ignores both the natural checks and balances of government, as well as the inconvenient contradictions to your favored theory - THAT NO CONSERVATIVE EVER ADDRESSES - like, you know, SLAVERY. MISCEGENATION.

Umm, Bill? Slavery was not ended by judges, and in fact not even ultimately by law, but by constitutional amendment. That's exactly the way it's supposed to happen, and it did. In fact, most of our evolution in civil rights has taken place through legislation.

Exceptions such as miscegenation and segregation are fair exceptions, but I think it's rather silly to accuse us conservatives of not talking about them. In fact, what is interesting is that this judicial branch that you seem to think is our democracy's saving grace has been on the wrong side of those issues as well as the right side. They were repeatedly on the wrong side of slavery as well, too; remember Dred Scott? This is what I meant above when I said "more on that later."

The bottom line is that the judiciary is not a particularly effective hedge against governmental overreach when they act in their current activist capacity, because they get it wrong plenty, too. Better to just let us put all the blame squarely on the legislature.

Finally, even if our Supreme Court justices wish they were the final arbiter, they are in fact not. The constitutional amendment process is open to citizens, and nothing that we pass through proper amendment procedures can be questioned by them. If we pass a Federal Marriage Amendment, or heaven forbid a No Butt Sex amendment, Adam and Steve had better move to Canada, because the Supreme Court won't be able to save their asses. Pun intended.

So whether you like it or not, our society must stand and fall on the representative democratic process, not the judicially autocratic one.

Why should anyone tolerate a government that makes it illegal for two grown men to have sex in privacy?

I don't care if 99% of the voters want gay sex to be illegal, our judicial system is in place to interpret the laws as written by the legislature and to protect the minority rights from the tyranny of the majority.

The Supremes got it right on this one.

Slavery was not ended by judges, and in fact not even ultimately by law, but by constitutional amendment.

"Um," actually, technically it was ended by an executive order. My example was to reference that sometimes the legislature makes laws that are, on their face, unconstitutional. Even when the Constitution itself was written.

And this is why I can't argue this stuff:

In fact, what is interesting is that this judicial branch that you seem to think is our democracy's saving grace has been on the wrong side of those issues as well as the right side.

I never said that the judiciary is "democracy's saving grace," rather that it plays a role in our government that many conservatives often fail to acknowledge in their rote declaration of legislative superiority. I'm not asserting the superiority of one branch over the other; they both have significant roles, no matter your antithapy for judges.

This is not a pissing contest over which is better, and I don't appreciate arguments that overgeneralize and misrepresent what I said.

The rest of your bit about the will of 9 people vs 250 million people - aside from the fact that it understates the population of the United States by about 50 million people - is hyperbolic excess that once again skims over the role of the courts in protecting the minority from the tyranny of the majority. As well as the legal scholarship that tends to ostensibly qualify judges for their job.

After all, by that logic, why should ONE MAN (the President) make decisions that affect all 300 million people, right?

Remember, we're a Republic, not a pure Democracy.

"And drc - I take this to mean that you would find a ban on blowjobs constitutional?"

Not only would a ban on blowjobs be unconstitutional, it would be a sin against almighty God and all that is sacred in this world.

the problem is Bill that legalistically the way the courts have been ruling on social issues since the 70s they have left the barn door wide open

Not that i have a problem with any of the rulings.... but what i do have a problem with is the fact we will see 10-15 years after the US Supreme's offically bring gay marriage to every state in the union ( not civil unions, gay marriage.. i give that another 7 or 8 years at the most) where do these rulings stop.. you can make fancy dan abstract intellectual arguments but you also have to accept we are a society that does have to be bound togther by our laws and social structure

"Not that i have a problem with any of the rulings.... but what i do have a problem with is the fact we will see 10-15 years after the US Supreme's offically bring gay marriage to every state in the union ( not civil unions, gay marriage.. i give that another 7 or 8 years at the most) where do these rulings stop.."

And what if the Supreme Court interprets the Constitution to find that same-sex couples have a right to matrimony? The Supremes have been appointed by elected presidents and approved by an elected Senate.

It's our system... why don't you want to allow it to work?

If you want to make it unconstitutional for gays to marry, then you should work at passing a constitutional amendment. Otherwise, these arguments of an over-reaching judiciary ring hollow as far as I'm concerned.

OK, Bill, nice cherry picking of my arguments.

You still haven't even attempted to credibly explain why animal cruelty in the privacy of one's own home isn't constitutionally protected.

Delt: My point isn't that i want to make it unconstitutional for gays to marry (my prefered method is allow states some time to figure stuff out on their own which was happening on its own)

my point is that as has ALREADY happened gay sex protections is leading to polygamy gaining state sanction

we can say "slippery slope fallacy" but when the court papers go in using the same kinds of arguments, and in some respects -Identical arguments- that exits the intellectual realm and into the real realm

Society needs rules and structure.. and it doesn't need those rules and structure being to fluid... thats bad as it being not fluid enough

"Um," actually, technically it was ended by an executive order. My example was to reference that sometimes the legislature makes laws that are, on their face, unconstitutional. Even when the Constitution itself was written.

Um, no. If you were talking about the Emancipation Proclamation, that only applied to seceeding states that had not returned to Union control. There were in fact several states that were exempted from that executive order and were not compelled to free their slaves until the Thirteenth Amendment was ratified.

In fact, the executive order was probably unconstitutional :) and so it quite likely would have been tossed had it been applied to the loyal states.

None of us have any dispute that the legislature gets it "wrong" sometimes: the question is of course what "wrong" is. It is precisely because we disagree so much on this point that we must use democratic means to decide what is wrong. The Constitution is that benchmark, then, and was itself ratified in a democratic fashion.

And that is why the broad interpretation of the Ninth Amendment is so dangerous, because it circumvents that democratic process.

Is that a perfect system? No, of course not. A conservative interpretation of the Ninth Amendment is more democratic, but inevitably can lead to tyrranies of the majority. And yet a liberal interpretation of the Ninth Amendment inevitably leads to tyrannies of a 9-person minority.

In either case, mistakes will be made. That's just the way it is. I cast my vote for the majority, thanks.

"You still haven't even attempted to credibly explain why animal cruelty in the privacy of one's own home isn't constitutionally protected."

mcg, do you really believe that sex between consenting adults of the same gender is as bad as beating your defenseless dog?

I tell you what, why don't you test the system? Lay a real good beating on your pet and then call the police to report yourself. When you are convicted of animal cruelty, appeal it. Appeal it all the way to the Supreme Court and let's see if the Supremes will discover your right to beat your pet in the privacy of your own home.

"Delt: My point isn't that i want to make it unconstitutional for gays to marry (my prefered method is allow states some time to figure stuff out on their own which was happening on its own)"

I'm not as convinced as you that the Supremes will find a right to gay marriage within 10-15 years. But if our duly appointed Supreme Court discovers that right, then that's the way it is. Personally I believe that if we are to allow gay marriage then it should be allowed throughout all 50 states.

What would you think if you moved to another state and they didn't recognize your marriage? What if you wanted a divorce?

"my point is that as has ALREADY happened gay sex protections is leading to polygamy gaining state sanction"

I guess I can't understand why this stuff alarms you so much? If five consenting adults wanted to get married, what's the problem?

"we can say 'slippery slope fallacy' but when the court papers go in using the same kinds of arguments, and in some respects -Identical arguments- that exits the intellectual realm and into the real realm

Society needs rules and structure.. and it doesn't need those rules and structure being to fluid... thats bad as it being not fluid enough"

You must understand that the Supremes simply CAN'T go too far. They aren't immune to impeachment. We do have rules. Let's take someone's suggestion that right to privacy arguments could lead the Supremes to discover the right to murder someone in their own home. Or that it could lead to a person's right to molest their child.

These are ridiculous things to consider. The Supreme Court must weigh EVERYONE'S rights in their decisions. If they indeed ruled in favor of the murderer and the child molester, then they are unconstitutionally ruling against the rights of the murder victim and the child.

deltanine,

No, of course I don't believe they are the same. I don't believe I have the right to beat my dog, if I had one. THAT IS MY POINT. The right to privacy is incomplete---the government DOES have the right to legislate what happens in my home, even if it involves consenting adults and is not injurious to any of them or any other persons.

My point is that we need to come up with a sound principle that explains when the government is allowed invade someone's privacy, and when they are not. Benign and non-injurious is not good enough.

In fact, I dare say that homosexual sodomy is more injurious to persons than animal cruelty. If injury to persons is the standard, then the Supreme Court currently has it backwards.

First of all, arguing about what Lawrence v. Texas ruling says is silly because it is another one of Justice Kennedy's completely incoherent opinions. The man has become an embarrassment frankly.

Second, people are getting quite confused about the 9th Amendment ( not least because Tribe is being cute ) because you are forgetting its context. The 9th Amendment was adopted as a restriction on the powers of the Federal government alone. Not the states' powers. It meant that there were other unenumerated rights that the states and the people retained as against the Federal govt.

The Constitution was not viewed as restricting states until a century later decades after the ratification of the 14th Amendment. And reading the 14th Amendment as expanding the entire scope of the 9th Amendment against the states as well is really not a rational position. It is a view that essentially reads the Constitution into a blank slate that any judge can invent any right at any time. That is simply not a Constitution of a Republic, but a tyranny of the judiciary.

Bill: Normally agree with you, but I strongly feel you're wrong here. Personally, I find it ludicrous that any legislative body would make consensual sexual activites such as you describe illegal. We probably both share the strong 'gut feeling' that the government has no role in the bedroom. (Trust me, I'm not just posing here. I feel it.)

The problem is to recognize that not all of our 'gut feelings,' regardless how strongly felt, how obvious to our modern rational sensibilites, are enshrined in the Constitution. Not even those intuitions we really, really, really think should be.

We are in charge of our lives, not life appointed philospher kings. We have the right to disagee with law and vote for our legislators and AMEND our constitution. If we are not ruled by law, but instead by men who would search their conscience (and not the Constitution we have made for them) to determine how we will be governed, then truly we've done away with the rule of law and descended again to the rule of man.

Again, I agree with you, the laws are idiotic. So let's change them, but not by giving over our right to govern ourselves to the (presently) benign philospher kings saying here, now, 'your conscience seems to mirror mine and I am certain you are good men.'

What will you say when one day they aren't good men? What principled constitutional argument will you fall back on? After all, if you've granted them the power that our Constitution says what they sense it should (or maybe just what they really, really, really feel it should), you are defenseless. Truly, their will is law.

No, the laws and principles by which men are governed must arise from those men, not their kindly kings who know best (even on those issues where the kings seem possessed of more noble stuff.)

At long last, now I know how "freaky-deaky" is spelled. That is, without doubt, the first time I've seen that phrase in print.

And no, I have nothing of value to add to the conversation.

Ah geez

If the sage and obviously superior beings who don robes and sit on high as they contemplate the great unwashed and how best to tell them how to live (because we are, we should humbly admit, unable to think or decide whats best for us) why pretend to have legislatures at all?

I, for one, welcome our American-style Sharia Overlords.

- Whats even more interesting is watching every instapundit in the blogsphere and beyond attempt to assign totured logic ideas and meanings to a document written at a time where such ideas were totally foreign. To wit.

- The IX and X amendments were the promised "adjustments", added by previous agreement at the original signing in '97, for the express purpose of absolutely limiting the power of, and potential reverse interference by, the federal "entity" and its institutions we now call the United States Government. They were designed for a completely different purpose than that which is being discussed and assigned to them at present. The sole purpose was to absolutely limit the power of said entity absolutely. They not only do not impart powers concerning soveriegn rights of, for, and by the people, they simply retain those rights at the state level, and within any such agreement that may exist between the states in their formed "federation". The Federal government has only the soveriegnty given it by that federation of states, and not one iota more, and only for such duration as the state federation agrees to it by mandate. If you didn't know, you are a citizen of your state first, and a citizen of the United States second.

- Not only does the constitution have no say in the privacy's or actions of the citizenry, its specifically prohibited from said interference.

- The problems arise because our own people, and more specifically our own leaders, do not even understand the core realities of the basic orginization and function of our country, our form of government, and our governing documents. They assign all sorts of wild imaginings to the simplist of intentions and words, while at the same time through many generations, the states have irresponsibly abbrogated their own powers and duties to the Fedral entity, simply because it was expediant and financially benefitial in one way or another. So much so that today the whole process is turned on its head, from judges legislating through the bench by interesting and imaginative expansions and readings in the wriiten text, where no such intent everyexisted, to the excessive adventures of the Federal government itself in the past 150 years. So much so that the average citizen has a completely backward view of our governmental institutions and functions. Of course Washington is perfectly happy to leave it that way, and from a practical standpoint it may well be the only thing that will work in this day and age. But what we may percieve to be neccessary in a modern world, in no way changes the reality of what we actually have.

- The bottom line is that its the States alone that have the sovereignty, by mandate of the people. No other entity, inluding municipalities or county governments have any such rights. That they practice these things daily is also a matter of practicality and expediancy.

- The essential underpinning to all of all of our Romanic law is a distinction known as "the general application and practice of legislation and enforcement concordent with the greater good of the electorate as a whole". Period. All other law flows from this basic tenent and is given only to the States as an absolute power.

- Now with all that in mind go back and think it through again. San Francisco has no implied or absolute power to make law, and 9th circuit judges have no say in what states decide in their own behalf.

- The constitution gaurentees will we will have rights and that they will not be abridged or interferred with. It in no way spells out the details of those rights. Thats our call as citizens of a state, and the laws we pass in our state legislations and write into our state constitutions.

- Note to the left. No matter how distateful the idea of majority rule may be to you, thats the form of government we have in our State Federation Republic. Deal

- One last addendum to my previous post. When I said the constitution does not spell out the details, that seems to be at odds with the freedom of speech, right to bear arms, etc "rights" that are found in the other amendments. But such is not the case.

- The framers were so concerned with the idea of Federal interference with citizens rights that what you see, starting with the first amendment and subsequent paragraphs, are the expression of those fears. But it soon becomes obvious that its impractical to try to write in every possible freedom you wish to retain. The XI and X cover the bases in a totally general way as I outlined earlier, and make the others redundent. Thats why special interests with an agenda either ignore them entirely, or attempt to distort their intent and clear meaning.

- Roe vs Wade, and all other such specious SC actions, should never have happened. All questions of societal norms should be decided by the electorate of each individual state. The SC should limit itself to adjudication questions between the branchs of the Federal and disputes between states. Period. That was the original intent and purpose given to the SC judicial by the federalists. No other was intended. Now through mis-application and partisan manipulation we have a hell of a mess on our hands.

Bill, I think the big problem is that you've produced this idea that "behavior that doesn't harm others is Constitutionally protected" out of thin air. However, most traditional systems of morality recognize certain categories of behavior which do not harm others but are nevertheless immoral. Some of these categories are more generally recognized than others than others. One of these is homosexuality, which has been generally thought immoral in this country until quite recently. In a society which recognizes such categories of behavior as vices, discouraging them falls squarely within the purview of the promotion of "the general Welfare".

Now, if some enterprising libertarian (Ron Paul?) wants to gin up a Constitutional amendment to grant citizens the right to any behavior which does not harm others, I say go ahead. Despite the fact that I subscribe to an ethical code that recognizes sins which don't hurt others, the principle that such things shouldn't be punished by law strikes me as a good one for governing a diverse society. But until you've done that, it has no weight whatsoever in Constitutional jurisprudence.

(Addendum: I don't think this raises any established-church issues, either. Many religions say "don't murder," but that doesn't mean that laws against murder constitute an establishment of religion. You can try arguing that murder is special because it harms someone else, but only because you've established the aforementioned principle as an ethical axiom. To make any laws, you need some sort of system of ethics, and there's no particular reason the libertarian system should be privileged over any others.)

Delt:

If California or Washington State both at their state supreme court level ( which is where they are with it right now) approve of gay marriage then homosexuals from all over the country will start getting married there and suing for rights in their own states.

Not to mention that the existance of gay marriage in california will have major pressure put on state governments to do so anyway... thats why i pick out the ten year figure

and also... *I* aint concerned about the court endorsing polygamy either persay, what i am concerned about is the lack of a check on the court

you can say we can impeach the court but when has a judge been impeached for a ruling ? could you imagine the political **** storm that would cause?

on paper yes that COULD happen... but we have had plenty of cause for some time now and it sure as heck hasn't happened. that means i'd not be putting money in vegas on it if i was you

the fact is the ground is even being worked for a right to have sex with a minor child ( you ever looked at all the studies saying that molesting a child isn't psychologically harmful? or that there are folks in the psychological community trying to remove pedophillia as a mental illness.)

now then if pedophillia ceases to be a mental illness and a case is built ( though it would take a while) that it isn't harmful under the current structure the court could willy nilly make a ruling in its favor

thankfully the mental health community is resisting these attempts ( for the moment) to normalize that behavior. but without the limits on the government, and the limits on personal behavior we have no check on that criminal conduct

and thats what the current line of court thinking can lead to. a wild and wooly everything is ok attitude.

also take the case of the abolition of the youth death penalty. the majority used international law when *IT WASN't Nessecary* there is a very good case to be made easily using just american laws that the youth death penalty was unconstitutional. If the courts can do something like that... serious misconduct... then there is no real likelyhood worse misconduct will be met with impeachment

"behavior that doesn't harm others is Constitutionally protected" out of thin air.

yes, my specific mention of this ideological test weakened my argument. But legal scholars (included a good percentage of Supreme Court Justices in the past 200 years) have interpreted that the constitution affords protection from the violation of privacy, or protection from overly intrusive government activity, and I am stating - in common sense terms - that a reasonable precondition for this protection is that the behavior isn't egregiously violating someone else's rights.

Is that not a reasonable statement?

The problems arise because our own people, and more specifically our own leaders, do not even understand the core realities of the basic orginization and function of our country, our form of government, and our governing documents.

Well boy, I'd say that we're in trouble then, eh? I mean, how will the United States ever forge a successful society that ... oh, wait ...

So let's change them, but not by giving over our right to govern ourselves to the (presently) benign philospher kings saying here, now, 'your conscience seems to mirror mine and I am certain you are good men.'

The problem is, we DON'T change them. We don't care, because they are rarely enforced. Until someone decides to screw with a random citizen.

And what about laws that politicians might not touch for political reasons? Like a ban on atheists running for office in a state legislature - they wouldn't want to be associated with advancing the atheist agenda, now would they?

Or miscegenation laws - would it be ok to overturn such legislation put forth by a duly elected legislature?

Whoa, dude, you get to edit comments midstream?

So your remedy to these problems is to let the courts fix them?

Look, either approach has its failings, some of them severe. It's either the tyranny of the majority or the tyranny of the judiciary. I vote the former.

This is the problem as I see it. The Constitution protects a very conservative, some may say dated set of rights. The rights protected by the Constitution certainly do not match modern liberal sensibilities of appropriate rights.

So how does one change the Constitution? The legal recourse is by constitutional amendment. Yet the votes are not there for such a constitutional amendment. So the liberal take the back door and have the Supreme Court amend the Constitution under the guise of interperting it.

Now you may feel that is beyond the proper realm of the state to proscribe consentual sodomy. Such is your right. Yet the text of the Constitution clearly permits discrimination based on sex, and the sex of one's sexual partner isn't even sex.

Clearly the several states have the constitutional power to discriminate both on the basis of sex and on the basis of the sex of your chosen sexual partner. The Supreme Court may not personally prefer the several states to have such power. So to achieve their personal desires they render the Constitution useless.

Delt

I worry about polygamy because it is an exploitive "institution" the government should not promote. Legalising it is not a step forward but a step backwards in time and a more insidious slap against women's rights than the harridans of NOW would ever consider as they dash about the country figuring out who is/isn't an "authentic" woman.

If I may return to the Frisco judge for a moment, his irrational decision in essense degrees that the People cannot define the parameters of a PUBLIC institution it wishes to recognize for general welfare purposes. "Support one, support all" seems to be the order of the day and that is plain silly. It's as if the Frisco judge had an illegal sex case before him (sex with a minor under 18) and tossed it out because the People of CA are too stupid to realize that as long as the people in Missouri have found it ok that the age of consent is 14, so shall it be in CA. How dare such private acts differ in treatment from state to state, eh?

oops degrees = decrees

You've got to be kidding me with some of these comments / arguements... I vote Republican because of guns, taxes, defense, and foreign policy... if 2 guys want to cornhole each other in the privacy of their own home, it's none of my business... are there not more important things to our agenda?

Whoa, dude, you get to edit comments midstream?

What are you talking about?

Uh, Bill?

I know threads like this get the blood boiling, but you flamed the crap out of me when, more or less, I was agreeing with you.

Go back and check the following line of what I wrote:

You had me right up until "based on what they think constitutes an unenumerated right", drc.

(Emphasis added.)

Read what I wrote. Not what you thought I wrote, in a moment of defensive passion.

Brett -

Went back and looked at it, and I was in total error. My apologies.

I was doing 10 things at once and skimmed your argument while fending off the others. I'm an asshole.

Bill,

The point I was attempting to make (without much success apparently) was that there is a separation of powers and it is not the Judiciary's job to legislate. If a law is wrong then it is up the the Legislative branch to change the law.

Thank you drc, mcg, big bang hunter, Ray Midge and others for comments.

That point is a given. The question resides in what is defined as "legislating" from the bench.

Nah, Bill, not at all. Assholes are the people who make a mistake and don't apologize. You, on the other hand, are somebody I'd happily buy drinks for. :)

Bill---this is what I was referring to above (it wasn't a swipe or anything):

At one point I saw a quote that I think you wrote that said "And that's when the judges come in" or somesuch. In fact it was that quote that prompted me to reply. Only after I had previewed my comment a couple of times, I couldn't find that sentence anymore. I assumed that perhaps your software allowed you to edit your comments even after some of us had seen them, and I didn't know it could do that. (I certainly don't want people to see MY comments before I've checked them :))

Sorry I didn't explain but I assumed you'd know what I meant.

Ah. Sometimes I accidentally hit post instead of preview, and then immediately edit my comment in Moveable Type, but that's usually just to clean up grammatical errors from typing fast.

It seems to me as if some of the people commenting here would not be averse to dissolving the Judicial branch of government entirely.

One more thing... some may say that the Constitution provides for no right to homosexual sex. If that's the case, then it also provides absolutely no right to heterosexual sex. Therefore, if the legislature of a state, or perhaps Congress, decided to outlaw heterosexual sex, they would be entirely within their purview to do so. They could ban it outright, or they could perhaps regulate it... You might find that the legislature would take it upon itself to choose a partner for you. And, of course, any attempt by the courts to strike down this legislation as unconstitutional would be decried as "judicial activism".

My friends, this is what we call the "tyranny of the majority". When the Supreme Court prevents this kind of thing from happening, it is DOING ITS JOB.

As a gay man (who also happened to vote for Bush), I take this very personally. It is a very real issue for me. Basically, I am glad the court is there to protect me from some of you.

And if the American People passed a "No Sex" constitutional amendment, there is nothing whatsoever the Supreme Court could do about it.

At some point, TSUGambler, you have to trust the democratic process; and then, when you do, at some point, it WILL let you down.

But it is far better than a non-democratic alternative.

I have no interest in dissolving the judiciary, but I AM interested in insuring that they actually do the job they are supposed to do, instead of making up a new one out of whole cloth.

TSU,

Yes the legislature of the several states have the constitutional power to ban heterosexual sex. In fact it is already restricted, see statutory rape laws, and prohibition of incest.

However should a state legislature move to ban heterosexual sex, they would be thrown out of office by the voters. The state legistlatures are accontable to the voters.

In utter contrast, the black robed terrorists in Washington are accountable no one.

Note how the Kennedy court is quick to strike to reign in the tyranny of the majority but will not lift a finger to stop the state sanctioned murder of Terri Schiavo by her husband. Some consistent court. Only minority rights matter.

Hey David -
Do you know what "terrorists" are? They are people that kill and maim the innocent with bombs, guns and poison gas.

Your use of this language to describe judges that reach decisions that you don't like pretty much makes you a raving moonbat; exactly like those that call Bush a "Nazi."

Get a freaking grip.

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