26-04-2003 04:49									#91
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Korn:

Post in the gay marriage thread, then. That thread is starting to join into these issues, particularly concerning the rigidity of sexuality.

quote: The issue isn't gay marriage, it's sodomy, and I think there is a big difference between the two.

Agreed. Two seperate issues, which is why Santorium's argument falls apart. His argument is a much better one against gay marriage, than for sodomy.

quote: Sodomy has a specific target, homosexuals, and little to no justification on how it actually protects the public welfare from the consensual actions of adults, while similar actions of heterosexuals is completely legal; it appears to me that this is a highly intolerant law

Two seperate points to deal with here.

1. The bill may discriminate wrt sodomy among homosexuals and heterosexuals. This, if true, is unjustified and falls prey to your points.

2. Is sodomy the moral equivalent of sex outside the marriage relationship? If so, there are two positions we can take from this question.

First of all, both should be approved,
Secondly, both should not be approved.

I take the second position, but I am unsure of whether the state can regulate sexual conduct between consenting adults.

Berzerker:

quote: Paul didn't encourage slaves to leave their masters. Can you answer my question now? If allowing polygamy means approving of polygamy, then did Paul approve of slavery when he allowed it?

Yes, he did. "if you can win your freedom, then do so."
We've been through this point before.

quote: Paul condemned all sorts of behaviors, but not slavery.

Explicitly or implicitly? Implicitly, Paul absolutely destroys slavery. The whole concept of everyone being sinners and falling short of the law implies that all persons are equal.

quote: Btw, monogamy doesn't ensure equality. Ever hear the phrases, "barefoot and pregnant" or "a woman's place is in the kitchen"?

Moreso than Polygamy. That is the point at hand.

quote: That's up to the women to decide, not you or me.

So gender applies to moral decisions? Men cannot speak up for women, or defend women? I call BS.

	26-04-2003 05:50									#92
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Dinodoc -

quote: Again, I fail to see how anyone with a reasonable grasp of grammar can interpret "Due Process" Clause of either the 5th or 14th amendment to assure anything but procedural rights.

quote: I believe that's called judicial review and not Substantive Due Process.

Here is the definition of substantive due process:

quote: "Substantive Due Process" is the fundamental constitutional legal theory upon which the Griswold/Roe/Casey privacy right is based. The doctrine of Substantive Due Process holds that the Due Process Clause not only requires "due process," that is, basic procedural rights, but that it also protects basic substantive rights. "Substantive" rights are those general rights that reserve to the individual the power to possess or to do certain things, despite the government’s desire to the contrary. These are rights like freedom of speech and religion. "Procedural" rights are special rights that, instead, dictate how the government can lawfully go about taking away a person’s freedom or property or life, when the law otherwise gives them the power to do so. The Due Process Clause of the Fourteenth Amendment, adopted in 1868, states "nor shall any State deprive any person of life, liberty, or property, without due process of law . . . " The facially clear meaning of this passage is that a state has to use sufficiently fair and just legal procedures whenever it is going to lawfully take away a persons life, freedom or possessions. Thus, before a man can be executed, imprisoned or fined for a crime, he must get a fair trial, based on legitimate evidence, with a jury, etc. These are procedural or "process" rights. However, under "Substantive Due Process," the Supreme Court has developed a broader interpretation of the Clause, one that protects basic substantive rights, as well as the right to process. Substantive Due Process holds is that the Due Process Clauses of the Fifth and Fourteenth Amendments guarantee not only that appropriate and just procedures (or "processes") be used whenever the government is punishing a person or otherwise taking away a person’s life, freedom or property, but that these clauses also guarantee that a person’s life, freedom and property cannot be taken without appropriate governmental justification, regardless of the procedures used to do the taking. In a sense, it makes the "Due Process" clause a "Due Substance" clause as well.

http://members.aol.com/abtrbng/sdp.htm

Now, as you can see, "due process" is, as you pointed out, the procedure for depriving the guilty of life, liberty, and property. But substantive due process deals with whether or not government had the authority to write the law in the first place.
To act as if substantive due process was just made up and has no constitutional foundation is to nullify the notion of constitutional limits on government power.

Imran -

quote: If they wanted free flow of trade they easily could have written that states are not allowed to interfer in interstate commerce (which the court found under the 'dormant commerce clause'). HOWEVER, they gave the federal government the power to regulate! Regulation means barriers. It's simple as that.

Imran, the interstate commerce clause was established to do two things - create a free trade zone within the USA. You can look at the history of how the clause was used back then and see for yourself. Second, and the reason why your suggestion is invalid, when disputes between people engaged in interstate commerce arose, the Framers didn't want the plaintiff to have to travel to another state to sue for damages. So they gave the Feds the power to regulate interstate commerce so federal courts - ostensibly neutral arbiters - could be used to settle disputes. It is illogical to conclude that a power designed to prevent the states from creating trade barriers was added to the Constitution to create trade barriers, but be my guest, show us when the interstate commerce clause was first used to ban interstate trade.

quote: I know it is difficult for you to read, but I never said the states can take away enumerated rights. I said the states can take away unenumerated rights, which the founders would probably agree with.

Unless you can quote them saying that, you're just putting your words in their mouths. Now, is liberty an unenumerated right? Just where do you think our unenumerated rights come from? LIBERTY! Of course, federalism under the Founders allowed the states to deprive us of our rights, but that doesn't mean the Founders wanted the states doing that. Federalism was a compromise to get the Constitution ratified and that changed with the 14th Amendment.

quote: No it doesn't. I DARE you to find that line of reasoning in Lochner or Griswold, which created substantive due process.

Read my response to Dinodoc, I gave him the definition of substantive due process.

quote: And btw, you can easily do things without constitutional authority. Doing things AGAINST constitutional authority is the problem. Silence does not restrict the states or people.

Wtf? Congress can't do whatever it wants unless the Constitution prohibits the action. Why would the Framers give Congress the power to set up a post office if Congress can do what it wants?

quote: Substantive Due Process includes these unenumerated rights and basically makes them as powerful as enumerated rights. This is a bastard reading of the 9th Amendment.... Hell, it really isn't a reading of the 9th. It's the 'penumbra' of rights argument.

And just what did Madison say in the 9th Amendment? That the enumeration of certain rights should not be used to deny or disparage unenumerated rights!!! If you want to eat ice cream, isn't that within the "penumbra" of liberty? Liberals and social conservatives hate liberty, that's why they selectively argue against unenumerated rights (and enumerated) they don't like. Ever hear a social conservative say "liberty is not what you want to do, but what you "ought" to do"?

quote: Congress can ban abortion by preventing hospitals or other institution from doing the act (commerce clause). Hospitals engage in interstate commerce.

You're a liberal now? That's the argument the left has been using to expand the interstate commerce clause to intrastate commerce and non-commerce. When was the first time the intertstate commerce clause was used to ban intrastate activities? Sorry Imran, this is gibberish and you should know better.

quote: A law against abortion violates substantive due process because 5 justices decided there was a right to abortion somewhere in the Constitution. If one majority justice went the other way, then it would be declared that there IS no right to abortion.

Oh, now you're complaining about the SCOTUS interpreting the Constitution, but when the court adopts your liberal interpretation of the ICC, that's the gospel? Btw, I never said abortion was a right so I don't know why you're running off on that tangent.

quote: I'm glad you are in favor of legislating by the judiciary, but I'm not, and I'm sure most of your libertarian friends aren't either.

I'm not, I'm in favor of the courts knocking down unconstitutional legislation. But I'm not surprised you confused legislation with negating legislation.

quote: REALLY?!

And you chastise me for an inability to read?

quote: So the court can decide tomorrow there is a 'right to healthcare' and thus the court must provide for it? After all, that is a 'right' recognized by plenty of countries (and the UN).

Gee Imran, you maketh lotsa of strawmen today. Having debated me in the past, you should know that I use the Founders' definition of rights, not the definition created by the left.

quote: If not, then why not?

Because no one has a right to the life, liberty, or property of another. I thought you were well versed in the Founder's ideas?

quote: Hmmm, an amendment that deals with the right to full procedure in a trial allows the Imperial Judiciary to declare that there are certain 'fundamental' rights that the states or congress can't touch?!

If the courts can't touch those rights either, then they're hardly "imperial".

quote: Sorry, can't see it... and neither did the court for almost 150 years (and after the 14th for about 50 years).

Wrong, the courts have been knocking down unconstitutional legislation from the beginning.

quote: ZZZZT! Wrong! Bill of Attainders are bills that declare someone is guilty.

Without a trial. I gave you the definition, do you have a different one?

quote: You'd probably still go through a trial. You know, this why before the court invented substantive due process, the government could say, oh, being Thomas Jefferson from Virginia is a crime.

But the court's didn't invent substantive due process, it comes from the Constitution and a little logic.

quote: People have no rights that the government does see fit to give them. The states sure didn't purposely want to give up all their rights and power, and neither did their represenatives in Congress.

Government is not the source of our rights, spend more time reading the Founders and not listening to your left wing law professor. Show us where in the BoR you found a right given to us by government.

quote: Substantive due process deals with laws that some justices considered to be against the Constitution. Just because they believed it to be true, it doesn't mean they are. Of course, it is next to impossible to invalidate precedent these days.

Geez, Imran, you tell me I'm wrong and then repeat what I said. If they are wrong, then substantive due process was not violated. If they are right, it was violated. I'll get to the rest of your post later...

	26-04-2003 05:57									#93
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I'll just quote Berzerker's defintion and make a few points (I have no intention of getting involved in a typical 100 quote Berzerker debate where I get called left wing in 50 of them):

quote: The Due Process Clause of the Fourteenth Amendment, adopted in 1868, states "nor shall any State deprive any person of life, liberty, or property, without due process of law . . . " The facially clear meaning of this passage is that a state has to use sufficiently fair and just legal procedures whenever it is going to lawfully take away a persons life, freedom or possessions. Thus, before a man can be executed, imprisoned or fined for a crime, he must get a fair trial, based on legitimate evidence, with a jury, etc. These are procedural or "process" rights. However, under "Substantive Due Process," the Supreme Court has developed a broader interpretation of the Clause, one that protects basic substantive rights, as well as the right to process. Substantive Due Process holds is that the Due Process Clauses of the Fifth and Fourteenth Amendments guarantee not only that appropriate and just procedures (or "processes") be used whenever the government is punishing a person or otherwise taking away a person’s life, freedom or property, but that these clauses also guarantee that a person’s life, freedom and property cannot be taken without appropriate governmental justification, regardless of the procedures used to do the taking. In a sense, it makes the "Due Process" clause a "Due Substance" clause as well.

Emphasis mine, of course.

It is 'facially clear' that it is about procedural rights, however, the COURT developed a broader interpretation, which in a sense makes the 'Due Process' clause a 'Due Substance' Clause.

When your OWN definition backs me and DD, how can you argue the opposite?

Btw, you may have never said abortion was a right, but the SCOTUS has, under substantive due process. Furthermore the 'Court' interpretation of the ICC has been so well settled, it is not only Constitutional (which is has been since Wickard v. Filburn), but immovable and thus, history made right. Also judicial review is that which has been done for 150 years, not substantive due process review... oh, and judicial review is also made up, but at least less people disagree with it.

	26-04-2003 06:14									#94
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quote: Most people don't to the same degree you do. That's why libertarians are a fringe group pretty much everywhere in the world. And for the record, I'm not debating your position, just pointing out some major stumbling blocks.

Yeah, I know you're not. arguing. You are trying to show the flaws and make my argument stronger by changing it.

	26-04-2003 06:16									#95
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I read what Santorum said. He has the right to his voice. But he is wrong. I am sorry but the things he said just aren't true. Pure BS. I would have better time listening to the Iraqi Information minister to any of the stuff he spewed. He might be republican... well heck, both sides have their faults.

	26-04-2003 16:27									#96
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quote: To act as if substantive due process was just made up and has no constitutional foundation is to nullify the notion of constitutional limits on government power.

Uh-huh. And that seems to be Imran's argument.

Santorum's too. Much attention has been focused on his comments about gays, but in his original interview he wasn't necessarily distinguishing between hetero- and homosexual sex. He said "consensual sex"; the "[gay]" part was added by an editor.

At first glance, Santorum comes across as merely a crackpot, but when you look more closely, you can see that he's a dedicated, principled, dangerous crackpot.

	27-04-2003 08:31									#97
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Bump

	27-04-2003 09:08									#98
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Thanks Dinodoc.

Forgot all about my half-post

Sikander:

quote: Because marriage is a public institution as well as a religious and personal one. The state already has a long stated interest in marriage, whatever its makeup.

True.

quote: Thus all laws related to marriage including those that ban polygamy / polyandry can't be challenged (successfully) on privacy grounds as these are considered public contracts.

State has right to regulate marriage. Again, I agree with you here.

quote: You would be correct IMO if you were merely talking about relationships rather than marriages.

Thats sort of the point. Is the government right to regulate sexual conduct?

I'm going to defend the status quo, with the argument that I wanted to present against Imran.

1. I assume that homosexuality is morally blameworthy.
2. If this is so, what should the role of the state in regulating this activity.

What we get down into is the big question of the role of law. One function of law is to deter people from activities that can be harmful to their health. If the law is struck down, will this encourage people to participate in sodomy who would not do so otherwise?

I think that this will happen. By keeping the status quo, people are encouraged to live a moral life.

One thing that may be better, rather than an arrest, is a fine.

	27-04-2003 09:38									#99
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Imran -

quote: I'll just quote Berzerker's defintion and make a few points (I have no intention of getting involved in a typical 100 quote Berzerker debate where I get called left wing in 50 of them):

I said your argument was the same used by the left to expand federal power via the interstate commerce clause, and that was in one post. Accuracy is not a sin, Imran. Btw, up until my last post, you were doing quite a bit of copying and pasting yourself. Another Agathon in the making, copies and pastes and complains when I do the same.

quote: It is 'facially clear' that it is about procedural rights, however, the COURT developed a broader interpretation, which in a sense makes the 'Due Process' clause a 'Due Substance' Clause.

Developed from what? The principle that we are free and government must provide a constitutional foundation for legislatively taking our rights when writing laws, hence my question about whether or not Congress can write a law to legislatively deprive you of your right to life only to then judicially (physically) deprive you of your life. You say no because of Bills of Attainder, but that is a prohibition on federal power to punish you without a trial. I'm still waiting for your answer, Imran. If you agree Congress cannot write a law forbidding you to live and then have you convicted in court for living followed by the death penalty, then you will have stumbled upon the basis for substantive due process.

quote: When your OWN definition backs me and DD, how can you argue the opposite?

The definition I provided explains the origin of substantive due process - the Constitution's protections of our life, liberty and property. Tell us, Imran, what good is life, liberty and property if Congress can simply write laws removing those rights from you and then use the courts to convict you for exercising/having life, liberty or property followed by the physical taking of your life, liberty, or property? It would be nice if you answered me this time...

quote: Btw, you may have never said abortion was a right, but the SCOTUS has, under substantive due process.

So what? Either abortion is a right under substantive due process or it isn't. That depends on the meaning of "rights", not substantive due process. If it was a cancerous tumor instead of a baby, would you argue Congress has the constitutional authority to punish a woman for having it removed? If so, based on what? The interstate commerce clause?

quote: Furthermore the 'Court' interpretation of the ICC has been so well settled, it is not only Constitutional (which is has been since Wickard v. Filburn), but immovable and thus, history made right.

Then you should have no problem with the SCOTUS claiming women have a right to abortion. You're wrong, just because the court has allowed Congress extraordinary powers under the ICC doesn't make it constitutional, the Senate confirms members of the SCOTUS, so the foxes are guarding the chicken coup.

quote: Also judicial review is that which has been done for 150 years, not substantive due process review... oh, and judicial review is also made up, but at least less people disagree with it.

How many times do I have to explain to you that substantive due process only became important AFTER the 14th Amendment? Before that, the 10th Amendment allowed states to deal with our rights as they (and the people) saw fit. Once the 14th Amendment created dual citizenship for Americans, the states no longer had a green light to do away with our rights.

Clem -

quote: Uh-huh. And that seems to be Imran's argument.

Yup, he doesn't understand that substantive due process comes from the fact Congress and the states cannot outlaw our freedom without constitutional authority. Here is the 9th Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Now, if Congress cannot write a law depriving us of our religious freedom - an enumerated right in the 1st Amendment -then why can Congress deprive us of the unenumerated right to eat ice cream or go to sleep when we want? All substantive due process says is that Congress cannot take away our rights unless the Constitution authorises the taking. I don't know why Imran and Dinodoc can't see that, it's quite logical.

	27-04-2003 10:08									#100
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Sikander -

quote: Because marriage is a public institution as well as a religious and personal one. The state already has a long stated interest in marriage, whatever its makeup.

That "long stated interest" probably began with prohibiting black men from marrying white women. Are you sure you want to rely on the legislative history of marriage? And since when is marriage a "public" institution? When the public decided they had the power to determine who could marry whom? That's like arguing your house is a "public institution" because communists say so...

quote: Thus all laws related to marriage including those that ban polygamy / polyandry can't be challenged (successfully) on privacy grounds as these are considered public contracts.

Are you married? If so, did you tell the public to come in and arrange your wedding because your marriage was a public contract? A public contract is what we agree to when we drive a car on public roads, not when we drive on private roads.

Obiwan -

quote: 1. I assume that homosexuality is morally blameworthy.

Based on what?

quote: 2. If this is so, what should the role of the state in regulating this activity.

If you believe in legislating morality, how do you explain the fact that enforcing laws require money stolen (legally of course) from others?

quote: What we get down into is the big question of the role of law. One function of law is to deter people from activities that can be harmful to their health.

Did Jesus tell his followers to go around hurting or killing people for engaging in unhealthy activities?

quote: If the law is struck down, will this encourage people to participate in sodomy who would not do so otherwise?

Yeah, as soon as I can legally have sex with another man, that'll be the first thing I do.

quote: I think that this will happen.

Would you engage in sodomy if it's legal?

quote: By keeping the status quo, people are encouraged to live a moral life.

"Encouraged"? Don't you mean threatened with violence, i.e., coerced?

quote: One thing that may be better, rather than an arrest, is a fine.

More stealing.

	27-04-2003 10:15									#101
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As a pennsylvania resident, I stand by Senator Santorum who effectively represents the majority of pennsylvanians in this regard. He is a relatively young man and is already the 3rd most important leader of the republican party... he has a several decade long career that could potentially be brilliant... I will vote for him in the next election.

	27-04-2003 10:30									#102
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quote: I said your argument was the same used by the left to expand federal power via the interstate commerce clause

And your argument is the same used by the left to create new 'rights' out of nothing (like a right to healthcare which is being pushed). What you think the Warren Court was a bunch of conservatives?

quote: Developed from what?

The courts mind.

quote: If you agree Congress cannot write a law forbidding you to live and then have you convicted in court for living followed by the death penalty, then you will have stumbled upon the basis for substantive due process.

Can you please come up with a new example. You've used this Bill of Attainder example over and over and over again, and no matter how you spin it, it is a Bill of Attainder. This law specifically targets an individual and says that his action is guilty. Thus, when it goes through a court, it must follow the Bill of Attainder which made the individual guilty.

Bill. Of. Attainder.

Come up with a new example.

quote: The principle that we are free and government must provide a constitutional foundation for legislatively taking our rights when writing laws

The states don't and never have had to.

quote: Tell us, Imran, what good is life, liberty and property if Congress can simply write laws removing those rights from you and then use the courts to convict you for exercising/having life, liberty or property followed by the physical taking of your life, liberty, or property?

It is as good as the democratic process is, and the enumerated rights of the Constitution.

Life, liberty, and property can be taken away if there is a fair trial. That's the consequence of the due process clause of the 5th and 14th Amendments.

Btw, legislatures can't write laws criminalizing conduct, and then arrest you for doing that conduct before the law was passed, that's an ex post facto law.

quote: If it was a cancerous tumor instead of a baby, would you argue Congress has the constitutional authority to punish a woman for having it removed?

No, but they could punish the medical surgeon which removed it (based on the ICC).

States can punish whoever if they want. States don't have to have constitutional justifications before they pass their laws. They just have to make sure their laws don't violate it.

quote: If it was a cancerous tumor instead of a baby, would you argue Congress has the constitutional authority to punish a woman for having it removed?

Yes it does. Anything the court rules is constitutional.

quote: Once the 14th Amendment created dual citizenship for Americans, the states no longer had a green light to do away with our rights.

No ****, sherlock, but those 'rights' didn't include that which the court made up under the rubric of substantive due process.


Let me get this straight, you are willing to take a phrase that says 'life, liberty, and property shall not be denied without due process of law' and expand it to mean that the legislature can't pass certain laws, but you aren't willing to say that 'regulation of commerce' can mean 'ban' sometimes (which is definetly more clear based on the text)? What are you on crack?!

	27-04-2003 13:06									#103
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Imran -

quote: And your argument is the same used by the left to create new 'rights' out of nothing (like a right to healthcare which is being pushed). What you think the Warren Court was a bunch of conservatives?

Is that how you admit making a false accusation? Now you're arguing that the left's invalid definition of rights invalidates my acceptance of substantive due process, sheesh! The left doesn't use my argument, their definition of rights and mine are like night and day. Do you believe in liberty, Imran? If so, what rights do we have by virtue of our liberty? Only those enumerated in the BoR? If so, would that mean we have no right to smoke tobacco or sleep when we want? If not, what is the name of the judicial process for determing what rights we have? The answer: substantive due process (or as Dinodoc says, judicial review which really is no different). Check out the origin of substantive due process:

quote: In the late 19th century (in its "laissez-faire" era), the Supreme Court said that (business) corporations were "persons" within the meaning of the "due process" clause of the 14th Amendment ("nor shall any state deprive any person of life, liberty or property without due process of law") and said that many state laws setting maximum working hours, maximum prices, minimum wages, etc., deprived corporations of property without due process of law and thus were unconstitutional. Thus the Supreme Court interpreted the due process clause as putting substantive limits on the power of states to regulate business. This is referred to as "substantive due process."

http://research.umbc.edu/~nmiller/POLI100/Q&A.htm

That followed the 14th Amendment which obliged the state's to respect our rights too. Notice how the left would have strongly opposed the application of substantive due process then?

quote: The courts mind.

Then what did the Framers mean when they said no one shall be deprived of life, liberty, or property without due process if Congress can legislate away our life, liberty, and property on a whim and have the courts enforce - due process - their legislation? Doesn't the 5th Amendment presume we had life, liberty, or property in the first place?

quote: Can you please come up with a new example. You've used this Bill of Attainder example over and over and over again, and no matter how you spin it, it is a Bill of Attainder. This law specifically targets an individual and says that his action is guilty. Thus, when it goes through a court, it must follow the Bill of Attainder which made the individual guilty.

I gave you the definition of Bill of Attainder and you keep ignoring it because you're trapped. Bill of Attainder prohibits Congress from declaring you guilty of a crime WITHOUT a trial. If you get your trial, Bill of Attainder no longer applies. Got that?
But you want another example? Here, Congress doesn't want people getting fat, so they write a law requiring everyone exercise 5 hours every week (even if they can't). You say that violates your liberty even though you have no right (in the BoR, excluding the 9th Amendment and substantive due process of course) to not exercise. You're convicted in court of violating the law and punished. Due process deals only with the procedures by which you were found guilty in court, but substantive due process deals with whether or not Congress had the constitutional authority to write the law in the first place, i.e., take away your right to not exercise.

quote: The states don't and never have had to.

Wrong on both counts, the states have their own constitutions limiting their power and the 14th Amendment obliged them to respect the BoR. If you don't think the 14th Amendment didn't put restraints on state power, you need to do some reading.

quote: It is as good as the democratic process is, and the enumerated rights of the Constitution.

So Madison was just playing with the alphabet when he authored the 9th Amendment? And where did you find this "democratic process" in the Constitution regarding our liberty?

quote: Life, liberty, and property can be taken away if there is a fair trial. That's the consequence of the due process clause of the 5th and 14th Amendments.

You're still avoiding my question. Can life, liberty or property be taken away for no reason other than congressional whim as long as you have a fair trial?

quote: Btw, legislatures can't write laws criminalizing conduct, and then arrest you for doing that conduct before the law was passed, that's an ex post facto law.

I never said they could nor does my question.

quote: No, but they could punish the medical surgeon which removed it (based on the ICC).

Why him and not her? What if he did it for free? And since when does the transfer of money between two people living in the same state constitute interstate commerce? My God, Imran, you're a conservative?

quote: States can punish whoever if they want. States don't have to have constitutional justifications before they pass their laws. They just have to make sure their laws don't violate it.

Ah, so the states cannot write laws that violate the federal constitution (bout time). Does a law banning you from smoking pot as part of your religion violate the Constitution?

quote: Yes it does. Anything the court rules is constitutional.

Where in the Constitution did you find that gem, specifically? When the Framers devised an oath of office, did they ask officeholders to uphold whatever the court said was constitutional or did they ask them to uphold the Constitution against all enemies, foreign and domestic (which could include judges)?

quote: No ****, sherlock, but those 'rights' didn't include that which the court made up under the rubric of substantive due process.

You're the one with a mental block, not me. Now read the links I offered, one deals specifically with the era following the 14th Amendment and substantive due process.

quote: Let me get this straight, you are willing to take a phrase that says 'life, liberty, and property shall not be denied without due process of law' and expand it to mean that the legislature can't pass certain laws, but you aren't willing to say that 'regulation of commerce' can mean 'ban' sometimes (which is definetly more clear based on the text)? What are you on crack?!

I'm not expanding the due process clause, I'm using the simple logic that says if the 5th Amendment presumes we have life, liberty, or property before due process is used to take them away for committing a crime, then they cannot be taken away legislatively except when the legislation is authorised by the Constitution. Why are you having so much trouble understanding that?

Btw, here's a link to show that your ICC interpretation is bogus, a product more of FDR and his left wing agenda than true conservatism:

http://www.ninjalawyer.com/writing/original.html

A couple quotes from the link:

quote: Throughout the nineteenth century and into the twentieth, the Court took a very narrow view of the Commerce Power, insisting that activities must have a direct effect on commerce for Congress to assert authority.

quote: Railroads were quickly acknowledged to be subject to federal regulations under the “Shreveport Rate” case,[7] but production (in the form of manufacturing, mining, and agriculture) was considered an exempt intra-state activity. The 1895 case of United States v. E.C. Knight[8] kept manufacturing free from federal regulation until the 1930s, holding that although E.C. Knight controlled 98% of the sugar refining industry, the Sherman Anti-Trust Act did not extend because the manufacturers were not directly involved in commerce. The requirement that an activity directly affect interstate commerce led the Court to invalidate much of Roosevelt’s early New Deal legislation.

Yeah, Imran "New Deal" Siddiqui.

http://www.mises.org/fullstory.asp?control=717

Or try that one, not a bad summary, and shows why Clarence Thomas is probably the best judge on the court (although the competition he has is pitiful).

	27-04-2003 18:36									#104
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quote: As a pennsylvania resident, I stand by Senator Santorum who effectively represents the majority of pennsylvanians in this regard.

Well, as long as he sticks to queer bashing, maybe. I thought the Keystone State was a bit better than that.

But I doubt that most people in any state in the Union would be much in agreement with Santorum if they read the complete transcript of what he said.

Santorum considers it appropriate for a state to ban any sex "that's antithetical to strong, healthy families," whatever the **** that's supposed to mean.

And Santorum does not exclude consensual oral sex between married couples (which some states include in the definition of "sodomy") in his definition of antithetical.

(Adultery is a crime, too, obviously. Given that, aside from war, the only way Republicans can get an erection is by contemplating Bill Clinton behind bars, you know they'll go for criminalizing this one. Who knows, the Big Dog might have Newt Gingrich or Rudy Giuliani as his new First Lady.)

If it walks like a crackpot, talks like a crackpot, and quacks like a crackpot, it's a crackpot. Santorum's a crackpot.

Oh, let's not forget, he's a self-righteous bigot and a totalitarian, as well. And he's against man-on-dog sex. This must be what Ari Fleischer meant when he called Santorum "an inclusive man."

	27-04-2003 19:20									#105
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quote: Originally posted by Albert Speer As a pennsylvania resident, I stand by Senator Santorum who effectively represents the majority of pennsylvanians in this regard. He is a relatively young man and is already the 3rd most important leader of the republican party... he has a several decade long career that could potentially be brilliant... I will vote for him in the next election.

All those surprised by this statement, identify yourselves.


........


I thought so.

	27-04-2003 20:55									#106
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The guy's a scumbag. 'nuff said.

	28-04-2003 03:48									#107
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quote: what rights do we have by virtue of our liberty? Only those enumerated in the BoR?

Not just the BoR.. enumerated in the Constitution.

quote: Notice how the left would have strongly opposed the application of substantive due process then?

Yeah, and so it sunk it. If you are not aware, West Coast Hotel has declared 'Economic Due Process' (of the sort you just listed) has NO protection in the Constitution.

Can you now NOT see why I consider Substantive Due Process to simply depend on the Justice's whims? How can such a varying standard be encapsulated in the Constitution? All Substantive Due Process depends on is whether the Justices think that the 'right' being asserted is worthy of Constitutional protection.

quote: the states have their own constitutions limiting their power and the 14th Amendment obliged them to respect the BoR.

Yes, the state Constitutions and the 14th LIMIT state power. That doesn't mean the states have to 'justify' their laws as Constitutional before passage.

Unlike the federal government, which cannot due anything unless authorized, state governments can do ANYTHING unless restricted.

quote: Congress doesn't want people getting fat, so they write a law requiring everyone exercise 5 hours every week (even if they can't). You say that violates your liberty even though you have no right (in the BoR, excluding the 9th Amendment and substantive due process of course) to not exercise. You're convicted in court of violating the law and punished.

Let's change it to be a state law (I don't think Congress' power would extend that far). Yes, it's valid. No objections.

quote: Why him and not her? What if he did it for free? And since when does the transfer of money between two people living in the same state constitute interstate commerce?

Because a person who is in the medical profession, engages in interstate commerce to be able to set up and run his practice, therefore everything he does in it can be regulated. There is no evidence that the woman has ever engaged in interstate commerce.

quote: Does a law banning you from smoking pot as part of your religion violate the Constitution?

No. Freedom of relgion isn't an absolute right.

quote: Where in the Constitution did you find that gem, specifically?

Where Judicial Review is located . If the court can decide what law is unconstitutional, then that means its rulings are constitutional, right?

quote: You're still avoiding my question. Can life, liberty or property be taken away for no reason other than congressional whim as long as you have a fair trial?

Yes, avoiding... the post you quoted before this statement:

Life, liberty, and property can be taken away if there is a fair trial.

Does that answer your question, moron?

quote: I'm not expanding the due process clause, I'm using the simple logic that says if the 5th Amendment...

No you aren't. You are expanding the clause. The plain meaning of 'due process' is the right to a fair trial.

quote: Yeah, Imran "New Deal" Siddiqui.

New Deal was a good thing. Never said the opposite. Might have gone too far, but it was needed.

quote: shows why Clarence Thomas is probably the best judge on the court

Funny, because he has a problem with many 'substantive due process' decisions, especially when the court declares there is a right to abortion and will definetly against when the court declares there is a right to homosexual sex.

And he usually votes with Scalia, who believes the substantive due process clause is made up fiction.

	28-04-2003 11:10									#108
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Imran -

quote: Not just the BoR.. enumerated in the Constitution.

Beyond those? There are only a handful of rights enumerated in the Constitution and thousands we take for granted.

quote: Yeah, and so it sunk it. If you are not aware, West Coast Hotel has declared 'Economic Due Process' (of the sort you just listed) has NO protection in the Constitution.

I'm not aware, but you can see by that link the origin of substantive due process and how it was originally a right wing, i.e., conservative doctrine based on the presumption that we have rights not enumerated in the Constitution that limit the states because of the 14th Amendment.

quote: Can you now NOT see why I consider Substantive Due Process to simply depend on the Justice's whims?

I've understood that all along, but that doesn't negate the principle any more than a wrongful conviction negates justified convictions in other trials.

quote: How can such a varying standard be encapsulated in the Constitution? All Substantive Due Process depends on is whether the Justices think that the 'right' being asserted is worthy of Constitutional protection.

That's true, but the 9th Amendment encapsulates just such a potentially varying standard. The problem is that the definition of a "right" has been perverted by the left, but we don't solve that problem by allowing government the power to do away with legitimate rights.

quote: Yes, the state Constitutions and the 14th LIMIT state power. That doesn't mean the states have to 'justify' their laws as Constitutional before passage.

Substantive due process deals with the laws after they are passed and before we are fully punished for violating them... hopefully...

quote: Unlike the federal government, which cannot due anything unless authorized, state governments can do ANYTHING unless restricted.

Restricted by both the federal Constitution and their respective state constitutions. You're right, the feds need constitutional authority to act, the states need only respect our rights. Where we apparently disagree is that you think the states need only respect the enumerated rights in the Constitution and I think the 9th Amendment matters.

quote: Let's change it to be a state law (I don't think Congress' power would extend that far). Yes, it's valid. No objections.

Your definition of the ICC would give Congress the power if Congress can punish you for smoking pot. Did you know the ICC wasn't used to outlaw pot in 1937? Why not? Because Congress knew the SCOTUS was hostile to expanding the ICC beyond it's traditional bounds and pot grew in many states. Why was alcohol prohibited via amendment if Congress can ban pot via the ICC?

quote: Because a person who is in the medical profession, engages in interstate commerce to be able to set up and run his practice, therefore everything he does in it can be regulated. There is no evidence that the woman has ever engaged in interstate commerce.

There's no evidence the doctor did either, you're just making the assumption. Engaging in ICC for one purpose is not a green light to regulate everything else we do. Buying a car made in Detroit doesn't mean Congress gets to regulate how I drive my car within my state or how often I brush my teeth.

quote: No. Freedom of relgion isn't an absolute right.

Excluding the enumerated powers in the Constitution, Congress cannot violate our religious liberty. And since the states are beholden to the 1st Amendment, they cannot either unless allowed by their constitutions. Most, if not all the state constitutions have religious liberty clauses and I doubt you'll find enumerated powers to decide what religious "paraphenalia" we can or cannot use in our religious practices within those constitutions.

quote: Where Judicial Review is located . If the court can decide what law is unconstitutional, then that means its rulings are constitutional, right?

Then abortion was a constitutional right in 1974 but not in 1972? Was the Constitution amended between those years?

quote: Yes, avoiding... the post you quoted before this statement: Life, liberty, and property can be taken away if there is a fair trial.

Having shown why your "Bill of Attainder" doesn't apply, you have nothing left except insults?

quote: Does that answer your question, moron?

Your Hotlanta Hardmen will be thrashed this week for that.

quote: No you aren't. You are expanding the clause. The plain meaning of 'due process' is the right to a fair trial.

I'm not expanding the clause, I'm accepting the logic that the Framers put "life, liberty, or property" in the 5th Amendment for a reason. A "fair" trial is meaningless if Congress can simply outlaw your life, liberty, or property first and then judicially punish you for living, etc. Why do you suppose the Framers would have mentioned these rights if they don't even exist?

quote: New Deal was a good thing. Never said the opposite. Might have gone too far, but it was needed.

Then why complain when I said you were using a leftist argument?

quote: Funny, because he has a problem with many 'substantive due process' decisions, especially when the court declares there is a right to abortion and will definetly against when the court declares there is a right to homosexual sex.

I see the caveat you put in there, "many" substantive due process decisions. That means he agrees with some, which in turn, means he agrees with the principle of substantive due process, but just has problems with some of the so-called rights other judges have identified.

quote: And he usually votes with Scalia, who believes the substantive due process clause is made up fiction.

Whom he usually agrees with or doesn't is irrelevant as long as he occasionally supports substantive due process.

	28-04-2003 11:40									#109
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quote: Based on what?

Assuming for the point of argument, as I am trying to sort some other facts at this point.

quote: If you believe in legislating morality, how do you explain the fact that enforcing laws require money stolen (legally of course) from others?

We all pay for laws of any kind. I never took you for an anarchist before.

quote: Did Jesus tell his followers to go around hurting or killing people for engaging in unhealthy activities?

No. Show me where I advocate hurting and killing sodomisers?

You are an adult Imran. What about younger people and children?

quote: Would you engage in sodomy if it's legal?

No, because I am a Christian.

quote: "Encouraged"? Don't you mean threatened with violence, i.e., coerced?

Bank robbers are threatened with violence. Should we make things safe for bankrobbers?

	28-04-2003 11:54									#110
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quote: There are only a handful of rights enumerated in the Constitution and thousands we take for granted.

Yep... those we take for granted go beyond the Constitution. They are granted by the generosity of the public and their representatives.

quote: it was originally a right wing, i.e., conservative doctrine based on the presumption that we have rights not enumerated in the Constitution that limit the states because of the 14th Amendment.

Perhaps, but that era of substantive due process died in the 1930s. This era of substantive due process (personal rights due process) is almost always backed from the other side of the aisle.

quote: I've understood that all along, but that doesn't negate the principle any more than a wrongful conviction negates justified convictions in other trials.

This is different for one main reason: What is and is not covered by Substantive Due Process is decided entirely by what the Supreme Court thinks. A wrongful conviction has a jury trial, then appeals and remands, etc.

quote: The problem is that the definition of a "right" has been perverted by the left, but we don't solve that problem by allowing government the power to do away with legitimate rights.

I'm sure someone from the left might say the same about you. An idea that the SCOTUS can simply declare rights whenever it wants basically amounts to a political decision in the end. If you believe in seperation of powers (which I think you do), Congress is the federal body that makes the laws.

quote: Why was alcohol prohibited via amendment if Congress can ban pot via the ICC?

What the ICC means has been vastly expanded. I don't agree with it, but it is never going to be changed now. The expansion of what the meaning of the ICC is, is similar to the expansion of the meaning of due process.

quote: Buying a car made in Detroit doesn't mean Congress gets to regulate how I drive my car within my state

It does get to regulate how that car is made though.

quote: Excluding the enumerated powers in the Constitution, Congress cannot violate our religious liberty. And since the states are beholden to the 1st Amendment, they cannot either unless allowed by their constitutions. Most, if not all the state constitutions have religious liberty clauses and I doubt you'll find enumerated powers to decide what religious "paraphenalia" we can or cannot use in our religious practices within those constitutions.

Most (if not all) jurisdictions have interpreted enumerated rights (as well as the unemumerated under substantive due process) are not absolute, and when the state has a compelling reason for violating it, then it can. I don't see much wrong with that, because it didn't seem like the original framers wanted to make those rights absolute (ie, prayers before the First Congress' sessions).

quote: Then abortion was a constitutional right in 1974 but not in 1972? Was the Constitution amended between those years?

Yes, no. The court decided it would be nice if abortion was a right, making abortion constitutional in 1974. Beforehand it wasn't a right (or close to it, really).

quote: That means he agrees with some, which in turn, means he agrees with the principle of substantive due process, but just has problems with some of the so-called rights other judges have identified.

Perhaps, but Thomas writes so few opinions, who knows? That, and we are not sure if he is simply following precedent. Justice White, for example, would write scathing dissents, and then in the next case dealing with that issue would back the (old) majority opinion, simply because he was following precedent.

	29-04-2003 03:26									#111
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Obiwan -

quote: We all pay for laws of any kind. I never took you for an anarchist before.

That doesn't negate the fact force (or the threat thereof) is used to obtain the money you'll need for legislating morality which makes it an oxy-moron. I'm not, there are voluntary means and user fees for funding government that I can support.

quote: No. Show me where I advocate hurting and killing sodomisers?

I thought you want people discouraged via the law from engaging in potentially unhealthy activities. Enforcing those laws requires hurting or killing people, the people targeted by the law and the people forced to pay for the enforcement.

quote: No, because I am a Christian.

But there are homosexual Christians. Wouldn't the reason you'd abstain from sodomy be your heterosexuality? I'm not a Christian, but my heterosexuality precludes me from engaging in homosexual behavior.

quote: Bank robbers are threatened with violence. Should we make things safe for bankrobbers?

No, I thought we were talking about encouraging people to refrain from potentially unhealthy activities such as sodomy.
Unless you are prepared to equate bank robbers with homosexuals, I don't see why both groups should be subjected to threats of violence to deter their behavior.

	29-04-2003 03:30									#112
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obiwan, do you seriously think that heterosexuals are refraining from participating in homosexual acts because the law in some places says not to do it?

Am I the only one who thinks this is one of the most absurd things said here?

	29-04-2003 03:35									#113
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quote: Enforcing those laws requires hurting or killing people, the people targeted by the law and the people forced to pay for the enforcement.

Not necessarily. What about my suggestion of a fine?

quote: Wouldn't the reason you'd abstain from sodomy be your heterosexuality? I'm not a Christian, but my heterosexuality precludes me from engaging in homosexual behavior.

Interesting consequences from this question. I would argue that heterosexuals can experiment with sodomy and still be considered heterosexuals.

Therefore, it is not sexual orientation that determines sexual practice, but something else entirely.

Christianity says that sodomy is sinful, hence I refrain from sodomy.

quote: Unless you are prepared to equate bank robbers with homosexuals, I don't see why both groups should be subjected to threats of violence to deter their behavior.

Both activities are morally wrong from the assumptions that we are working with here. I would argue that an effective deterrent will be different because of the motivations in which people will engage in both activities.

The point I'm trying to flesh out is what should be the most effective deterrent?

	29-04-2003 03:38									#114
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Didn't Jesus teach tolerance, forgiveness, and love for all people?

	29-04-2003 03:59									#115
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Imran -

quote: Yep... those we take for granted go beyond the Constitution. They are granted by the generosity of the public and their representatives.

How do you square that with Madison's language in the 9th Amendment where he says unenumerated rights should not be denied or disparaged?

quote: Perhaps, but that era of substantive due process died in the 1930s. This era of substantive due process (personal rights due process) is almost always backed from the other side of the aisle.

True, but not always to create bogus rights like a right to other people's property in the name of health care or schooling.

quote: This is different for one main reason: What is and is not covered by Substantive Due Process is decided entirely by what the Supreme Court thinks. A wrongful conviction has a jury trial, then appeals and remands, etc.

And yet there are plenty of people who've been wrongfully punished. We want safeguards to prevent that from happening, and there should be safeguards to prevent the courts from creating false rights, but the failure of safeguards doesn't mean we scrap trial by jury or substantive due process.

quote: I'm sure someone from the left might say the same about you.

True, so that requires an analysis of the nature of rights as envisioned by the Framers. Even a brief analysis will show they meant rights as individual claims of "ownership" based on life, liberty, or property. A right to keep and bear arms, not a right to have others buy us guns. A right to religious freedom, not a right to a government provided church and audience for our sermons, etc.

quote: An idea that the SCOTUS can simply declare rights whenever it wants basically amounts to a political decision in the end. If you believe in seperation of powers (which I think you do), Congress is the federal body that makes the laws.

If Congress writes a law violating your right to smoke tobacco and the SCOTUS says the law is unconstitutional, did the court create a right or did it negate a law? The court has long taken the position of having the power to negate a law. The BoR is pretty clear about the origin of rights, they came before government, not from government. Congress shall make no law prohibiting religious freedom - a freedom that comes from God, not Congress. I agree the line between creating a right and negating a law is very fine.

quote: What the ICC means has been vastly expanded. I don't agree with it, but it is never going to be changed now. The expansion of what the meaning of the ICC is, is similar to the expansion of the meaning of due process.

I agree with the first part, but not the last. I believe the Framers assumed we have life, liberty, or property before due process is exercised to remove them for committing a crime.

quote: It does get to regulate how that car is made though.

Only under the expanded meaning of the ICC which you say you disagree with (as I do).

quote: Most (if not all) jurisdictions have interpreted enumerated rights (as well as the unemumerated under substantive due process) are not absolute, and when the state has a compelling reason for violating it, then it can. I don't see much wrong with that, because it didn't seem like the original framers wanted to make those rights absolute (ie, prayers before the First Congress' sessions).

Then they would have added a "compelling interest" provision to the Constitution.

quote: Yes, no. The court decided it would be nice if abortion was a right, making abortion constitutional in 1974. Beforehand it wasn't a right (or close to it, really).

Which means the Constitution changes as the composition of the court changes? I don't agree with that even though I know you're just stating the reality. Either legal abortions were constitutional before and after 1973 or they weren't.

quote: Perhaps, but Thomas writes so few opinions, who knows?

I'm just going on your assertion he disagrees with many rights under substantive due process which means he agrees with some. Maybe he opposes substantive due process all the time.

quote: That, and we are not sure if he is simply following precedent. Justice White, for example, would write scathing dissents, and then in the next case dealing with that issue would back the (old) majority opinion, simply because he was following precedent.

Of all the judges on the court, Thomas has shown himself to be the most willing to ignore precedent - I like that about him. In the Lopez case (gun free school zones), he practically argued in favor of doing away with the ICC as defined since the 30's.

	29-04-2003 04:19									#116
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quote: How do you square that with Madison's language in the 9th Amendment where he says unenumerated rights should not be denied or disparaged?

Easy: Which unenumerated rights? Madison didn't mean ALL unenumerated rights. What he merely meant was that you can't deny a state's granting of rights simply because it doesn't provide for that right under the Constitution.

quote: True, but not always to create bogus rights like a right to other people's property in the name of health care or schooling.

Who decides which rights are 'bogus'? Only the Supreme Court, whose decisions are unreviewable. They can declare a right to health care, and we can do little about it (Constitutional Amendments are VERY hard to pass). The court has already said there was a right to schooling (right to education) in Brown v. Board of Education.

quote: Even a brief analysis will show they meant rights as individual claims of "ownership" based on life, liberty, or property.

The problem is under the view that the 9th Amendment leads to the protection of unenumerated rights, some future group can say that Madison meant the unenumerated rights they assert should not be disparaged or denied.

quote: Then they would have added a "compelling interest" provision to the Constitution.

Not necessarily. Under judicial review (Marbury v. Madison) the SCOTUS has broad power to interpret the Constitution. And if we are going on what the framers intended, it is clear that they did not intent an absolute right to what is granted in BoR.

The Constitution might have been simply unworkable any other way.

quote: Which means the Constitution changes as the composition of the court changes? I don't agree with that even though I know you're just stating the reality.

Well, the reality is the point. The Constitution changes as the court changes, especially with a substantive due process idea where the court determines what rights are protected.

quote: Of all the judges on the court, Thomas has shown himself to be the most willing to ignore precedent

Which is because he follows Scalia 90% of the time.

	29-04-2003 04:22									#117
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OMG, these massive Imran vs. Berzerker posts are a bore to read.

	29-04-2003 04:40									#118
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quote: Didn't Jesus teach tolerance, forgiveness, and love for all people?

Forgiveness and love, but not necessarily tolerance.

One example of this is when Jesus overturns the tables of people selling in the temples. There are times when one cannot and should not tolerate sin.

	29-04-2003 04:43									#119
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That's not how I mean tolerance obiwan. One can preach tolerance and not tolerate murder.

	29-04-2003 04:43									#120
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quote: Originally posted by korn469 I think laws can be both intolerant and unjust, while still being "constitutional."

Can there even be an argument about a statement so obviously correct?