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shawnmmcc
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GePap -  You beat me to it - I was waiting for someone to post against the "so-called" right to privacy and was plannning to shove amendment IX down their throats, but I missed a day with my little girl's birthday (she's two  )
Doesn't anybody see the irony here of a naturalized citizen (i.e. he wasn't born here) being the first one to quote the Bill of Rights (of course he beat Berz and me, but still...). That is the point I keep making about all of these so-called conservative strict-constructionist claims. Bull S**t - or propoganda, choose your poison.
The conservatives are making massive changes to personal rights, trying to throw out jurisprudence that goes back to the Civil War (habeus corpus and Hamdi). They are permitting due process to be abrogated - shelter is not voluntary, and just try to buy a property or rent without signing a binding arbitration agreement - and throwing traditional American bankruptcy laws out on their head and turning the clock back to the time of Dickens.
The Federalist Society wants to take Jurisprucence back to 1937 and before, by their own words. They are advizing prominent Republicans, including Hatch on the Senate Judiciary Committee, and the President himself, on judicial nominess. Just remember next time police arrest you, it is not torture unless in causes organ failure or death. So claims the US Attorney General.
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shawnmmcc
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Actually, Imran, Scalia is closer to a strict constructionist than most of the justices, I've granted that in many threads recently. However, he is by no means a strict constructionist, his homophobia shows that (read his dissent on the decision that reversed the 1980's case upholding anti-sodomy laws targeting gays).
quote:
It seems to me that the “societal reliance” on the principles confirmed in Bowers and discarded today has been overwhelming. Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority’s belief that certain sexual behavior is “immoral and unacceptable” constitutes a rational basis for regulation. See, e.g., Williams v. Pryor, 240 F.3d 944, 949 (CA11 2001) (citing Bowers in upholding Alabama’s prohibition on the sale of sex toys on the ground that “[t]he crafting and safeguarding of public morality … indisputably is a legitimate government interest under rational basis scrutiny”); Milner v. Apfel, 148 F.3d 812, 814 (CA7 1998) (citing Bowers for the proposition that “[l]egislatures are permitted to legislate with regard to morality … rather than confined to preventing demonstrable harms”); Holmes v. California Army National Guard 124 F.3d 1126, 1136 (CA9 1997) (relying on Bowers in upholding the federal statute and regulations banning from military service those who engage in homosexual conduct); Owens v. State, 352 Md. 663, 683, 724 A. 2d 43, 53 (1999) (relying on Bowers in holding that “a person has no constitutional right to engage in sexual intercourse, at least outside of marriage”); Sherman v. Henry, 928 S. W. 2d 464, 469—473 (Tex. 1996) (relying on Bowers in rejecting a claimed constitutional right to commit adultery). We ourselves relied extensively on Bowers when we concluded, in Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569 (1991), that Indiana’s public indecency statute furthered “a substantial government interest in protecting order and morality,” ibid., (plurality opinion); see also id., at 575 (Scalia, J., concurring in judgment). State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices.
...If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review...
...That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts–or, for that matter, display any moral disapprobation of them–than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a Court that is impatient of democratic change. It is indeed true that “later generations can see that laws once thought necessary and proper in fact serve only to oppress,” ante, at 18; and when that happens, later generations can repeal those laws...
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Look at Article IX and X. Since that power was not specifically granted to the federal government, then it devolves to states or individuals. Now as I've critiqued Scalia before, he virtually always supports the states when those come into conflict. He also support the majority's opinion to push almost anything. The Bill or Rights, which is part of the constitution, was founded on the opposite premise, that the individual MUST have rights protected agains the unfettered desires of a majority to impose their will on a minority and infringe on certain rights. Lastly, and here is where he strays, and strays badly from being a strict construtionist, he keeps quoting morality and "...on the ancient proposition that a governing majority’s belief that certain sexual behavior is “immoral and unacceptable” constitutes a rational basis for regulation." Find me that in the constitution. Hell, the constitution by banning a religious test for office goes by implication in the opposite direction, and the Bill of Rights is founded totally on the idea of individual rights not being trodden on by the majority.
There are no strict constructionists on the court, and all the claims by the right are proganda to support the premise that our guys are good, yours are bad. Are some of the conservatives more likely to make certain decisions? Yes. But as this one shows, many of those decisions stray very far from the constitution itself.
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Imran Siddiqui
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The Potterverse
Jan 1970
time: 00:36
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On the contrary, find me where in the Constitution it says individual rights not specified in the Constitution trump State powers. Morality and ancient propositions are citable because the whole point is finding a right which falls to the invididual. And how is that decided? Yep, morality and ancient propositions.
In fact, I'd probably say the Scalia's dissent on Lawrence v. Texas is FAR more inline with the text of the document than the majority.
According to precedent, Lawrence v. Texas had to be ruled the way it was, but there is no right to privacy in the Constitutional text, and saying that is a 'right' held by the people is a bit absurd (and NOT the basis on which Griswold v. Connecticut was decided). Does that mean that I have a right to human sacrifice, because, Hell, if isn't prohibited by the government, and so it's MY INDIVIDUAL right! No, that's ludicrious. The right to privacy is a judicial invention.
Scalia's opinion that has been cited is far more in line with the Constitutional text and very constructionalist indeed. Societal reliance is important, because how else would you decide a right kept by the people?
So yes, Scalia is a strict constructionist. Simply because you are biased against him doesn't make it less the case.
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shawnmmcc
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Imran - by that argument - and I am not a lawyer but more of a historian - you could justify anything a state government imposes on the people that is not explicitly banned by the constitution. By that reasoning adding in "...the people" into Amendment IX is largely superfulous, because states will almost always trump the individual unless specifically prohibited by the Constitution. It only protects individuals against the Federal Government overreaching, and grants absolutely no protection against states doing so unless explicitly banned, i.e. the Bill of Rights.
That is a "Federalist Society" argument. I argue the opposite. The right can devolve either to the State or the Individual, and when you have to have the convoluted argument here, then it certainly should go to the Individual. Read the parts I quoted. Good God, the man would permit states to ban manstrubation. Reducio ad absurdem is a very good test to look at what the intent was.
Just like slavery, the issue of legislating morality has always had a certain tension in the constitution. Look at the banning of "Religious Tests" in the constitution for holding office. Certain delegations would have walked out if some of the delegates championing individual rights had walked out. That tension, of the rights of states - and the federal government - to regulate individual morality, will probably always be with us.
If Scalia is such a strict constructionist, why doesn't he simply come out and bann most Federal drug laws, unless the law concerns interstate shipment and excise tax. What occurs inside a state should be a state matter only then. Look at what has happened to the Marijuana initiatives in multiple states, and look what the conservative justices have decided each time. The Marijuana is internally grown and made available under internally to that state only. Strict constructionists my ass. 
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Imran Siddiqui
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The Potterverse
Jan 1970
time: 00:36
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quote:
you could justify anything a state government imposes on the people that is not explicitly banned by the constitution. |
Indeed. And I believe that was what was meant by it. After all, the states were considered independant states. Remember the Bill of Rights didn't even apply to the states until incorporation (and each seperately, except the 2nd Amendment, which hasn't been incorporated at all).
quote:
when you have to have the convoluted argument here, then it certainly should go to the Individual |
Where does it stop? What rights can an individual claim? Can I claim a right to sacrifice cats out in the open? Why not? This whole, individual rights from the 9th Amendment thing is very vague and basically ends up being judicial preference.
As to the states banning masturbation, yeah, and? Under a reading of the text, I see nothing stopping that.
quote:
If Scalia is such a strict constructionist, why doesn't he simply come out and bann most Federal drug laws, unless the law concerns interstate shipment and excise tax. |
Well I don't know his position on the drug laws, but he can't come out and ban them by his lonesome. And it isn't just conservative judges that have upheld the federal drug laws. I'm guessing part of the reason is the same reason that an FDA exists.
And of course, we do have precedents on the book that state that even intrastate commerce has effects on interstate commerce, such as affecting the price, etc. And how would a state prevent people from buying the drug in one state and selling it another?
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11-03-2005 14:20
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