The US Constitution: How Should It Be Interpreted?

Quick question: is "liberty" mentioned anywhere in the Constitution other than the preamble?

It's in the 14th amendment.

The Constitution spells out certain rights that must be protected. It cannot, however, fully protect all liberties, because every piece of legislation - whether passed by the U.S. Congress, a state legislature, or imposed at the county or local level - limits a person's liberty.

Conceded. But laws that invade the bedroom are an unacceptable limit on liberty, at least in my opinion.

Peace,

V-03

 

But there's a difference, a clear difference. Such a law would violate the 14th Amendment's extension of the 1st Amendment protection of speech.

Conceded. It was a poor example.

There's no clear violation of the Constitution when it comes to the Texas sodomy law.

You're wrong here. The texas law violated the equal protection clause of the 14th amendment by applying only to homosexual and not heterosexual couples. In the Lawrence opinion, Justice O'Connor stated that she would have upheld the law had it not contained this flaw, which really made the 6-3 ruling 5-4 when considering the invalidation of Bowers v Hardwick.

Further, I believe the constitution does protect the right of two people to engage in consensual sex in their own homes. This is not a question of public behavior, it is an intimate act between two people in their own dwellings by their own mutual choices. I have a hard time reconciling opinions against this with anything other than bigotry, and I know that you are not a bigot, Bubba. So please tell, what is it about homosexual behavior that makes you feel it needs to be criminalized, especially in the home?

Peace,

V-03

 

Vaderize:

Conceded. But laws that invade the bedroom are an unacceptable limit on liberty, at least in my opinion.

Perhaps you're right that such laws are unacceptible, but unless they're clearly unconstitutional, the court has no right to overturn them.


You're wrong here. The texas law violated the equal protection clause of the 14th amendment by applying only to homosexual and not heterosexual couples. In the Lawrence opinion, Justice O'Connor stated that she would have upheld the law had it not contained this flaw, which really made the 6-3 ruling 5-4 when considering the invalidation of Bowers v Hardwick.

I stand corrected, but there's no clear violation for sodomy laws in general -- the court's decision wrongly struck down all sodomy laws, regardless of whether they applied to everyone.


Further, I believe the constitution does protect the right of two people to engage in consensual sex in their own homes. This is not a question of public behavior, it is an intimate act between two people in their own dwellings by their own mutual choices. I have a hard time reconciling opinions against this with anything other than bigotry, and I know that you are not a bigot, Bubba. So please tell, what is it about homosexual behavior that makes you feel it needs to be criminalized, especially in the home?

Let me see if I can make myself clear: I don't support sodomy laws, but I do think they are constitutional protected. Most certainly, those that outlaw all sodomy do not even threaten to violate the "equal protection" clause.

You say the Constitution does indeed protect the right to consensual sex, but I don't see it. No one's able to point to a specific clause that asserts that right.

The closest one could come is the Fourth and Ninth Amendments, but even then...

Amendment IV protects us against unreasonable searches. If it asserted a true right to privacy, it would have forbidden all searches, just as Amendment I prevents Congress from abridging free speech in any way.

And Amendment IX only vaguely protects unenumerated rights. There were sodomy laws when the authors first wrote this amendment, and there's no indication that they intended this amendment to threaten such laws.

I honestly think sodomy laws are bad but constitutional. It's a good thing that most states have done away with them and that momentum has been such that the other laws' days were numbered at any rate. But it was a very bad thing that the court forced that decision upon the states: process matters.

And, again, I tire of having to bring this up, but "bad" and "unconstitutional" are not the same thing. There may be some good law that the Constitution prohibits -- particularly if one considers the very specific Congressional limits of Article I, Section 8. And there are some bad laws that the Constitution allows.

Congress shouldn't pass unconstitutional laws, regardless of how good they may be. The Supreme Court shouldn't strike down constitutional laws, regardless of how bad they may be.

Otherwise, why even have a Constitution?

 

Bubba, go read the Federalist Papers. Madison and crew certainly felt the constitution was meant to change with the times.

In addition, all those that opposed the Bill of Rights did so on grounds that they felt people like you would come in and say "well, such and such right isn't spelled out in the constitution, you don't get it." Those that opposed the Bill of Rights felt that if you spell out certains specific rights, that means that people will claim other rights just don't exist because they weren't spelled out. That's why strict constructionism is bull. Also, check out the ninth amendment. It also goes to show that the constitution isn't some rigid unchanging document that won't keep up with the times that will become outdated.

 

Bubba, go read the Federalist Papers. Madison and crew certainly felt the constitution was meant to change with the times.

I agree that the Constitution ought to change with the times, but I believe in a specific process, outlined in Article V.

What needs to be found is not support for the idea that Constitution should change, but that it should change through reinterpretation instead of / in addition to the amendment process.

What we find, in the final Federalist paper, No. 85, is the admission that the document is probably imperfect with the recognition that it can be changed through the amendment process. (The argument was, go ahead and ratify this now and we can amend it later and easier, as ratifying requires unanimity while subsequent amendments won't require the approval of every state.)

I don't believe there exists any suggestion that the Constitution should change in any other way -- much less that it should change via a re-interpretation of its meaning.

Instead, Federalist 62 suggests that changing meaning is a bad thing:

The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed? [emphasis mine]

Again, I demand specific quotes if you're going to assert that we're quite wrong about the Founding Fathers' original intent, that they meant the Constitution's interpretation to be as inconstant as the wind.


In addition, all those that opposed the Bill of Rights did so on grounds that they felt people like you would come in and say "well, such and such right isn't spelled out in the constitution, you don't get it." Those that opposed the Bill of Rights felt that if you spell out certains specific rights, that means that people will claim other rights just don't exist because they weren't spelled out. That's why strict constructionism is bull. Also, check out the ninth amendment. It also goes to show that the constitution isn't some rigid unchanging document that won't keep up with the times that will become outdated.

Wait a second: are you asserting that we should judge the Bill of Rights according to the opinions held, not by its authors, not by its supporters, but by its opponents?

And you bring a fairly inconsistent message: the opponents believe that Bill of Rights would cause us to lose certain rights, and yet the Ninth Amendment protects those rights -- and yet despite being wrong (and outvoted) the opponents' opinions matter more than those of the authors.

Huh?

At any rate, pointing to the Ninth Amendment as proof that the Constitution should change by mere reinterpretation is like saying the Preamble allows Congress to do anything that can be justified under the heading of "promoting the general welfare." If that were true, then there'd be no point in strictly limiting Congressional powers in Article I.8.

And your argument ignores the Tenth Amendment, which reserves all powers not mentioned in the Constitution to the people and the states -- and more importantly, it ignores the fact that we already have a way to change the Constitution: the amendment process outlined very clearly in Article V.

It also, ultimately, gives supreme law-making power to the courts, allowing them to make and break laws using whatever justification they can squeeze into the Ninth Amendment. If they're going to be the rulers of this country, why even have a Congr

 

Perhaps you're right that such laws are unacceptible, but unless they're clearly unconstitutional, the court has no right to overturn them.

The court ruled them unconstitutional. Your own prejudices against homosexual behavior do not justify a compelling state interest to criminalize such private behavior. That is what the court ruled. Obviously, you disagree, but that does not make them wrong. It only puts you at odds with their opinion.

Also, the supreme court is made up respected jurists with strong, mostly ivy-league backgrounds. What makes you think that you or I are more qualified to interpret the constitution than they are, Bubba?

I stand corrected, but there's no clear violation for sodomy laws in general -- the court's decision wrongly struck down all sodomy laws, regardless of whether they applied to everyone.

Actually, according to the majority opinion, the court rightly struck down sodomy laws as a violation of equal protection, protection against unreasonable searches and seizures, and the right to privacy. It even went so far as to chastise the court for it's ruling in Bowers. Pretty strong stuff. I'm not convinced in the slightest that they overstepped. Gay marriage would be a different story.

Let me see if I can make myself clear: I don't support sodomy laws, but I do think they are constitutional protected. Most certainly, those that outlaw all sodomy do not even threaten to violate the "equal protection" clause.

Even if you could make that claim, and I don't concede that you can, I do believe that criminalizing sexual behavior is against any notion of what liberty means. We're discussing consenting adults in the home, not child pornography or rape. More below.

You say the Constitution does indeed protect the right to consensual sex, but I don't see it. No one's able to point to a specific clause that asserts that right.

The closest one could come is the Fourth and Ninth Amendments, but even then...

Again, we're back to this old argument: "if it isn't written down, it doesn't exist". Lots of things aren't written down in the constitution, yet society doesn't ground to a halt because of this. The ninth amendment, IMHO, exists exactly to rule out this kind of argument. Unenumerated rights are there. No, there isn't a right to gay sex in the constitution. But the ninth amendment certainly makes a right to privacy plausible, and the courts have established that not only does such a right exist, but that sexual freedom and intimacy between consenting adults in the home falls under that right.

You may disagree, but that doesn't make you right .

Amendment IV protects us against unreasonable searches. If it asserted a true right to privacy, it would have forbidden all searches, just as Amendment I prevents Congress from abridging free speech in any way.

That's not true at all. In fact, neither of your points are true. No rights are absolute, even the ones specifically enumerated in the Bill of Rights. Free speech is not absolute and may be regulated and even abridged under certain circumstances. Similarly, you cannot claim that amendment IV doesn't assert a "true" right to privacy because it doesn't forbid all searches. Even if it did such a thing, the government would still retain the authority to abridge if it could demonstrate probable cause and/or a compelling state interest. "Unreasonable" doesn't mean "none"-it means without due process of law. This applies to both a privacy right that is unenumerated and a free speech right that is.

And Amendment IX only vaguely protects unenumerated rights. There were sodomy laws when the authors first wrote this amendment, and there's no indication that they intended this amendment to threaten such laws.

I doubt that they were thinking of enforcing them either. The problem with absolutist, narrow constructionist statements and thinking like yours, Bubba, is that it works equally well both ways. Historically, sod

 

What needs to be found is not support for the idea that Constitution should change, but that it should change through reinterpretation instead of / in addition to the amendment process.

Given the amount of political muster that is needed to amend the constitution, I cannot in good faith believe that the sole unanimous intent of the founding fathers, federalist papers or no, was to allow only the most rigid interpretation at all times with only amending allowable as a means of change.

The fact is, legislatures and courts can interpret, and they do.

Peace,

V-03

 

On what basis do you assert that my position is based on prejudice against homosexuality?

Presumptuous, aren't we?


Also, the supreme court is made up respected jurists with strong, mostly ivy-league backgrounds. What makes you think that you or I are more qualified to interpret the constitution than they are, Bubba?

I recognize that a college diploma doesn't mean an automatic claim to being right.

Shocking, isn't it?


Actually, according to the majority opinion, the court rightly struck down sodomy laws as a violation of equal protection, protection against unreasonable searches and seizures, and the right to privacy. It even went so far as to chastise the court for it's ruling in Bowers. Pretty strong stuff. I'm not convinced in the slightest that they overstepped. Gay marriage would be a different story.

News flash! The Supreme Court thinks that the Supreme Court is right!


Even if you could make that claim, and I don't concede that you can, I do believe that criminalizing sexual behavior is against any notion of what liberty means. We're discussing consenting adults in the home, not child pornography or rape. More below.

Buh-bye to laws against prostitution, then.


I doubt that they were thinking of enforcing them either. The problem with absolutist, narrow constructionist statements and thinking like yours, Bubba, is that it works equally well both ways. Historically, sodomy laws were meant not to punish homosexuals but to both prevent people from engaging in nonprocreative sex as a whole and to discourage human-animal sex. Besides, what the authors felt on the subject is irrelevant centuries later. We don't live in the 18th century anymore, and as such, it is not appropriate to simply fall back to the authors' view on everything whenever heat arises. If that were true, women would still not be voting.

Exactly!

Oh, wait, no. Women voting required an amendment, which kinda proves my point.


Except when nothing gets done. Texas had no intention of getting rid of those laws; in fact, they argued zealously for keeping them.

How. Dare. They.


So, how many people should have to go to jail because of a "bad yet constitutional" law?

All of them -- until either the legislature strikes down its own law or the constitution is changed via an amendment.


Your argument is that the "process" is more important than whether or not what happens to people is right-mine is the exact opposite.

Then you and those like you should never serve on a bench and falsely take an oath to protect the Constitution and all its awful concern about process.


As a framework as to how to run our government. And the patriot act, the department of homeland security and Bush's power over federal workers in it make more of a mockery of the constitution than any sodomy law ever has.

Don't forget campaign finance reform, and every cent spent by Congress that has no basis in Article I, Section 8.

 

Bubba, you raise good points, that I will try and address more coherently.

The issues you expound upon are covered at length in law school, and like it or not, the Marshall Court against Jefferson's will took the mandate of the Supreme Court and ran with it, in order to keep the executive and the legislative branches accountable.

Congress can always remove the issue from the court's jursidiction, they have that power.

Now, I have read the Federalist Papers (not all of them), and every section I can remember promotes the notion that the text should not be changed easily, true, but that the rights endowed therin should be liberally interpretted.

Now, as for the 'confusing' argument. The opponents of the Bill of Rights were FOUNDERS of our country. Not ALL of the founders approved of a Bill of Rights, becasue they felt that if you list like 10 rights, then people will feel that those 10 rights are the only things the constitution is meant to cover. They didn't want any Bill of Rights precisely because they didn't want people to years later say something like "the right to privacy isn't in the constitution, it must not exist."

THAT'S WHY they insisted on that 9th amendment being added, and the state's rights people insisted on the 10th.

But the very issue with the 10th amendment is that it doesn't say the word "EXPRESSLY" like the old articles of confederation, the rights not EXPRESSLY taken by the Feds are given to the states, but in the constitution, that's omitted, which allowed Chief Justice Marshall to expand the power of the federal judiciary.

 

Sometimes, Bubba, you confound me. You appear very conservative (less government is good government) and other times, nearly Orwellian.

So, you would not be against putting government-spondered video-cameras in everyone's house to know what they are doing at all times? That's not really unresonable, but no one would take note of it unless you were doing something criminal.

But, see, that's the thing..sodomy laws are illegal. They do not abide by the constitutional amendment that allows for eminant domain. The right to a person's privacy in his or her own home. As long as they are not violating the laws of the land, they can do as they please. How is sodomy a felony or a crime? It's like saying black people must sit on the back of the bus, basically. It's a law that only criminalizes a certain group of people (which IS against the constitution, you can not have laws that are made for a specific group or a single individual).

I understand your point in wanting to uphold values, but your values aren't everyone else's. That's what most people fail to recognize, values and morals are individual basis. You should follow them out of WANT to follow them, not oppress them upon others.

In most people, do onto others as you would have them do onto you is a common thread. Most humans feel this way. This is why we have laws for them, to protect that common interest and the general populace. Murder, rape, thieft, ect. But, since when did two men having sex somehow endanger the public? Or two women?

Sodomy isn't even defined itself, you do realize the amount of things that can be brought under that law, correct? Even a standard enema at your doctor is technically a form of sodomization.

The law was wrongfully placed there by those who didn't think, and I'm pretty positive some of those law makers who voted yes for it have had sodomy performed on them, or performed it on someone else too. You'd be amazed at the hidden sexuality of a lot of people back from the 'good ol' days'.

It might sound good to appeal to the right-wing, white christian American, but, sadly, the laws are downright treacherous to the constitution and the basic tenants of this land.

The constitution is a living document, and it's intreptation should be based on both a mutual understanding of modernization and originalism. As contradictory as that may seem, circumstances over time change things. Just as slavery was outlawed, other things maybe outlawed or allowed once again. The current times and the original intention of the framers must both be taken into consideration when trying to decide what's best for this country. No longer are we that fledgling country, but the world's only superpower. Our country has changed. So has our writ of law. And so shall it, because to adapt is to survive.

 

On what basis do you assert that my position is based on prejudice against homosexuality?

Presumptuous, aren't we?

Not at all. You acknowledge the fact that these are "bad" laws, yet seem to assert that until repealed by the legislature, it's tough cookie if you happen to be gay and want some nookie in your own house.

You also rail against the right of the courts to remove such laws. I understand your respect for the democratic process, Bubba, but would you have kicked up the same fuss over the Brady Bill? A little bit of presumption on my part is hardly out of line giving the strength of conviction you have displayed that these laws are constitutional.

I also notice that you didn't deny that your position wasn't based on a prejudice against homosexuality. I call it like I see it, and if it walks like a duck, and talks like a duck.....

I recognize that a college diploma doesn't mean an automatic claim to being right.

Shocking, isn't it?

Which of course, automatically means that in your infinite wisdom, your college diploma (or lack thereof-and law degree, I might add, oh, and dare I forget-decades of experience with the law?) certainly qualifies you to lecture to esteemed members of the high court. Personally, I think "right" and "wrong" here are arbitrary and based upon the individual feelings of those arguing the case. I have heard scholars both praise and condemn the Lawrence ruling. Undoubtedly, it will be re-addressed in the future.

News flash! The Supreme Court thinks that the Supreme Court is right!

Sarcasm does not become you.

Buh-bye to laws against prostitution, then.

Another cry of "slippery slope", eh? Now who's being presumptious? By the way, have you noticed that laws against prostitution have affected it to any great extent? I'm not arguing for legal prostitution, but your remark is a bit of a stretch, methinks.....

Exactly!

Oh, wait, no. Women voting required an amendment, which kinda proves my point.

In this day and age, amending the constitution is less practical sometimes than the courts. Frankly, if we left everthing to amendments, nothing would ever get done. Personally, I'm in favor of an amendment on the issue of sexual privacy and abortion rights, if only to prevent others from taking the right away in the future. There are some who would gladly disenfranchise women if they could get away with it, like that stellar gem of an appeals court nominee Bill Pryor, who was I believe quoted as saying women should be subservient to their husbands.

Now there's a 21-st century attitude!

.

How. Dare. They.

Hmphf. Would you feel the same way if it were a law banning christianity that were being tossed about?

Probably not-funny thing about that, hmmmm?

All of them -- until either the legislature strikes down its own law or the constitution is changed via an amendment.

It doesn't surprise me at all that you think that way, Bubba. Especially since it doesn't affect you. But how would you feel about an issue that did?

Then you and those like you should never serve on a bench and falsely take an oath to protect the Constitution and all its awful concern about process.

Funny, I was thinking the same thing about you . And by the way, that was rather insulting the way it was phrased. "You and those like you" is pretty rude, IMHO.


Don't forget campaign finance reform, and every cent spent by Congress that has no basis in Article I, Section 8.

Yah, I won't forget that the GOP railed against it heart and soul until it became evident that they would benefit hardcore from the soft-money bans and the democrats would not.

Peace,

V-03

 

"Presumptuous, aren't we?"

Not at all. You acknowledge the fact that these are "bad" laws, yet seem to assert that until repealed by the legislature, it's tough cookie if you happen to be gay and want some nookie in your own house.

That's proof of prejudice? I don't see how.

Your conclusion is as idiotic as if I said, your support of the decision proves that you yourself are gay. It doesn't logically follow, and I think you know that.


You also rail against the right of the courts to remove such laws. I understand your respect for the democratic process, Bubba, but would you have kicked up the same fuss over the Brady Bill? A little bit of presumption on my part is hardly out of line giving the strength of conviction you have displayed that these laws are constitutional.

Do I oppose the Brady Bill as unconstitutional? Yes, I do. I also oppose McCain-Feingold as being a clear violation of the First Amendment. I oppose Congress writing unconstitutional laws even if they're otherwise good and the Supreme Court striking down constitutional laws even if they're bad.

But because that means I oppose the court striking down a law that gays hate, I'm a homophobe? Horse manure.


I also notice that you didn't deny that your position wasn't based on a prejudice against homosexuality. I call it like I see it, and if it walks like a duck, and talks like a duck.....

There's no need for personal comments about other posters.

(You call it like you see it? I asked on what basis you make that charge, and you answer holds no water whatsoever.)

My bet is, had I explicitly denied the charge, you would have said some nonsense like, "you doth protest too much."

But since you're going to continue to accuse me of prejudice, I'll be perfectly clear in my position:

1) I believe practicing homosexuality is immoral.

2) I believe practicing homosexuality should be legal.

3) I believe sodomy laws (both universal sodomy laws and those that pick on homosexuals) are bad laws.

4) I believe that a case can be made to strike down the sodomy laws that single out homosexual sodomy, on the basis of equal protection.

5) I believe that the case that all sodomy laws are unconstitutional is incredibly weak, based on either the idea that the founders implied a right to anal sex despite never challenging the contemporary laws against sodomy -- or based on this view of the Constitution as a "living document," a view that I reject as foolishness.

Anything else, or are you done ramming your foot into your mouth?


Which of course, automatically means that in your infinite wisdom, your college diploma (or lack thereof-and law degree, I might add, oh, and dare I forget-decades of experience with the law?) certainly qualifies you to lecture to esteemed members of the high court. Personally, I think "right" and "wrong" here are arbitrary and based upon the individual feelings of those arguing the case. I have heard scholars both praise and condemn the Lawrence ruling. Undoubtedly, it will be re-addressed in the future.

I asserted, "a college diploma doesn't mean an automatic claim to being right." You're essentially saying that a logical conclusion from that assertion is this:

"The absence of a diploma makes me automatically right."

That doesn't logically follow. It's fallacious nonsense.

All I'm saying is that it doesn't take a law degree to understand the Constitution, the Declaration of Independence, the Federalist Papers, etc. The Constitution was written to be understood by the common man, and indeed it is understandable.

Unlike the tax code, we don't specialists telling us what the document supposedly says.

Your willingness to let men in black robes have unquestioned authority about the document that protects our rights is frightening. Sure, this time such willingness results in a decision that you like, but that won't always be the case.


Sarcasm does not become you.

 

In my haste, I missed a couple other posts.

McCartney, you're right that the Supreme Court may have gone too far even in Marbury v. Madison. Not only does the Congress have the power to limit its jurisidction, it probably should exercise that power.

I could agree that the Ninth Amendment should be given a wide berth, but only insofar as it limits the power of the federal government. If it makes Congress think twice about a law they think is otherwise Constitutional, great. Here, we have the Supreme Court using the amendment as an excuse to grab more power, to essentially become a separate legislative body.

That's a really, extraordinarily bad thing in terms of checks and balances.

GAT:

So, you would not be against putting government-spondered video-cameras in everyone's house to know what they are doing at all times? That's not really unresonable, but no one would take note of it unless you were doing something criminal.

I'd be opposed to it because it's unreasonable. Amendment IV requires a little thing called "probable cause."

Again, the counter-arguments baffle me as they're explicitly handled by the Constitution.


But, see, that's the thing..sodomy laws are illegal. They do not abide by the constitutional amendment that allows for eminant domain. The right to a person's privacy in his or her own home. As long as they are not violating the laws of the land, they can do as they please. How is sodomy a felony or a crime? It's like saying black people must sit on the back of the bus, basically. It's a law that only criminalizes a certain group of people (which IS against the constitution, you can not have laws that are made for a specific group or a single individual).

If a legislature writes a law making sodomy illegal, it becomes a crime. That answers, "how is sodomy a crime"? The Texas legislature made it so.

While I agree that there may be an case for invoking "equal protection" when it comes to sodomy laws that pick on homosexuals, there are also laws that prohibit all sodomy, heterosexual and homosexual. That doesn't seem to violate "equal protection."

And invoking the image of segregated buses is not appropos here.


I understand your point in wanting to uphold values, but your values aren't everyone else's. That's what most people fail to recognize, values and morals are individual basis. You should follow them out of WANT to follow them, not oppress them upon others.

Actually, as I just asserted, I think sodomy laws are bad. I just think the court striking them down is the wrong way to go about it.


In most people, do onto others as you would have them do onto you is a common thread. Most humans feel this way. This is why we have laws for them, to protect that common interest and the general populace. Murder, rape, thieft, ect. But, since when did two men having sex somehow endanger the public? Or two women?

It doesn't, but "do unto others" is not a constitutional limit on state laws. It's simply not.


Sodomy isn't even defined itself, you do realize the amount of things that can be brought under that law, correct? Even a standard enema at your doctor is technically a form of sodomization.

If the law is that poorly written, it may need rewriting, but that doesn't make it unconstitutional. Local indecency laws are often vague, too, but that doesn't mean the courts should strike them down.


The law was wrongfully placed there by those who didn't think, and I'm pretty positive some of those law makers who voted yes for it have had sodomy performed on them, or performed it on someone else too. You'd be amazed at the hidden sexuality of a lot of people back from the 'good ol' days'.

"And those who support the Supreme Court's decision have had gay sex themselves!"

See how silly claims like that are?


The constitution is a living document, and it's intreptation should be based on both a mutual understanding of modernization and originalism. As contradictory as that may s

 

Just to review, you guys have suggested that women's suffrage and the abolition of slavery are some sort of proof that the Constitution should be reinterpreted. The fact is, both of those changes required amendments.

GAT, you bring up government cameras in the home when it clearly violates Amendment IV's requirement for "probable cause."

And, Vaderize, you ask how I would feel if Christianity was banned, but such an act clearly violates Amendments I and XIV.

Your counter-examples are really, really poor choices that reflect the possibility that you don't know what the Constitution actually says.


I understand what you're tyring to do -- present some law that's Constitutional and yet so ugly that I would support it being overturned by the courts. I welcome the effort, but know this:

I believe the Constitution, as written and amended over the last two centuries, is a remarkable document. As such, you're going to have a hard time even finding a Constitutional law which I find dramatically offensive.

And even if you did, I would support changing the Constitution through the amendment process outlined in Article V. I don't think you can goad me into supporting an activist court.

 

I was heading out for work this morning as I typed my responses. Had I had five more minutes, I would have edited out the comment that Kimball removed. It was unnecessary, and I apologize for it.

The comment was unnecessary, but the ire behind it was justified. Belief that the Supreme Court overstepped its powers by striking down all sodomy laws does not necessarily imply some sort of prejudice against homosexuals.

Again, I believe that sodomy laws are bad and should be removed. I just believe that there's a right way and a wrong way to do it: Pursuading the Texas legislature to strike down its own law is fine. And pursuading the American people to amend the Constitution so that sodomy laws are unconstitutional is also fine.

But using the courts to twist the meaning of the Constitution is an extraordinarily bad idea. The gains of legalized sodomy nationwide are not worth the costs of a damaged balance of powers.

Prohibiting sodomy is bad. Flushing the Constitution down the toilet is worse.

 

Checks and balances! Bah! The system is checked! The court's get to wild, the people won't stand it, the politicians scramble to pack the court's with judges who think differently and WHAM, all balanced out.

 

I agree with Bubba about WHO and HOW you change laws.

 

Checks and balances! Bah! The system is checked! The court's get to wild, the people won't stand it, the politicians scramble to pack the court's with judges who think differently and WHAM, all balanced out.

You're mistaken about the speed and the ease with which such change occurs.

In the case of the Supreme Court, justices have to step down of their own free will, and they usually wait until they suspect the current president will appoint a judge that they like.

Assuming that the judge is affirmed by the Senate (a non-trivial task, particularly considering the Democrats' unprecedented move of a filibuster, which essentially moves the requirement of affirmation from a simple majority to 60 votes), one then has to wait for a similar case to come up.

These checks and balances were in place when the court merely interpreted law. Now that they've assumed the power to create law, one would think that the old checks and balances are no longer sufficient.

 

The Supreme Court was originally envisioned as being "disinterested" in politics and "above the fray" if you will. In fact, it was supposed to be so apart from politics that it was given much heft until the early 1800's. It took awhile for it to gain prominence as the third branch of gov't.

It has not turned out that way.

I tend to be a loose originalist.

The Constitution contains elements to not only adapt to change, but to provide the means of future peoples to use the U.S. Constitution to reflect that change: the amendment process.

 

And, Vaderize, you ask how I would feel if Christianity was banned, but such an act clearly violates Amendments I and XIV.

Hey, slavery violated quite a few things too, but that didn't stop it from occuring.

Peace,

V-03

 

You know, Bubba, republicans have filibustered more in history than any other party.

Strom Thurman lead a 36+ odd hour filibuster against the Civil Rights Act.

I sincerely doubt democrats will 'filibuster' (if you even know what that term means, which I doubt, it's pretty hard and unheard of to filibuster anymore, muchless on a senate confirmation) any judge that is qualified. Even if they do, the senate is republican majority. So, no it's not trivial, but yes it is quite easy.

Keep in mind, any justice can croak too, this would cause a vacancy to be filled.

-GAT

 

OWM-That 'process' could take years and likely decades. The checks and balances are there to prevent such short-term pseudo-tyranny by a Governmental body. And done in an ordered way so as to keep things moving steadily instead of chaotically which you seem to prefer.

I doubt you yourself would want to sit through and wait for the people to rise up from a bad, unconstitutional exercise of power that harmed you in any way.

Checks and Balances are there to protect you, whether you like it or not, obviously not.

Vaderize-Slavery was accepted by the majority of society, just as the subordination of women. This of course changed with the times as the minority for equality and abolitionist became the majority, and then the Ammendment process was invoked to change that once the people (in the majority) wanted it.

As with the talks of sodomy and homosexuals, it depends on what the majority of the people want. And of course, anyone against the status quo is considered a bigot (whether rightfully or wrongfully so). It seems here many times people argue that we have the opinions that we have, but at the same time chastise those who may be against their own views on homosexuality/sodomy. Very hypocritical. As I said before, it depends on what the majority feels acceptable ala slavery, women inequality, homosexuals, etc.

Don't expound the freedom of opinion and then turn around and accuse someone of 'bigotry'.


Mistryl's Paramour

 

That's proof of prejudice? I don't see how.

No, not proof, but it helped me form my presumption .

Your conclusion is as idiotic as if I said, your support of the decision proves that you yourself are gay. It doesn't logically follow, and I think you know that.

Actually, I don't see that at all. I have backed up my reasons why I think that the ruling was appropriate and why homosexuals deserve equal rights. You have simply railed against the way it was done, all the while insisting that it's better for gays in violation of the law to go to jail even if it's a bad law than for the courts to invalidate something that the legislatures should have.

We're going to have to agree to disagree here. I don't see things your way, and you do not seem them mine. That's just sort of a fact of life.

Do I oppose the Brady Bill as unconstitutional? Yes, I do. I also oppose McCain-Feingold as being a clear violation of the First Amendment. I oppose Congress writing unconstitutional laws even if they're otherwise good and the Supreme Court striking down constitutional laws even if they're bad.

Good for you. A solid position. However, it does not give you moral high ground on specific issues. I still maintain that anti-sodomy laws that regulate behavior between consenting adults are both bad and unconstitutional.

But because that means I oppose the court striking down a law that gays hate, I'm a homophobe? Horse manure.

I never called you a homophobe. Don't put words in my mouth. I challenged you to explain why, and I that doesn't automatically translate into me accusing you of bigotry.

There's no need for personal comments about other posters.

If I crossed that line, I apologize. By the way, you did this with me last week when you implied I was racist .....so let's just leave it at that and not go there.

My bet is, had I explicitly denied the charge, you would have said some nonsense like, "you doth protest too much."

I had enough dinner, thank you very much. I don't need you to continually feed me words.


1) I believe practicing homosexuality is immoral.

2) I believe practicing homosexuality should be legal.

THANK YOU! YOU HAVE FINALLY CLARIFIED YOUR POSITION. THAT WAS ALL I WAS ASKING YOU TO DO!!

3) I believe sodomy laws (both universal sodomy laws and those that pick on homosexuals) are bad laws.

Agreed.

4) I believe that a case can be made to strike down the sodomy laws that single out homosexual sodomy, on the basis of equal protection.

Agreed.

5) I believe that the case that all sodomy laws are unconstitutional is incredibly weak, based on either the idea that the founders implied a right to anal sex despite never challenging the contemporary laws against sodomy -- or based on this view of the Constitution as a "living document," a view that I reject as foolishness.

I understand your position, but you must understand that there are a lot of people who support the "living document" interpretation, and they are not a minority. What the founders implied regarding anal sex is utterly irrelevant to me. The founders could not have predicted the tremendous technological and social changes that the 20th and 21st centuries have wrought and as such, looking to how they would have dealt with such questions is farcical and attempts to impose centuries-outdated ways of looking at the world to modern time. Sanctifying the past is one thing, blindly following it another.

I think the more relevant question here is "Is there a compelling reason to deny people the right to anal sex in their homes with consent?". The founding fathers would have undoubtedly been against legal sodomy, given the attitudes of the time, but this doesn't hold any water with me. They are dead, and their attitudes about homosexual behavior died with them. You cannot deny that we live in a far more tolerant society now than existed 3 centuries ago, and as such, we need to at least ta

 

Vaderize-Slavery was accepted by the majority of society, just as the subordination of women. This of course changed with the times as the minority for equality and abolitionist became the majority, and then the Ammendment process was invoked to change that once the people (in the majority) wanted it.

And if they hadn't? That didn't make it right. People shouldn't have to suffer while they are waiting for the rest of the world to catch up to them.

As with the talks of sodomy and homosexuals, it depends on what the majority of the people want.

Does it? What if it doesn't affect them? The majority of the people in the US are straight. What gay people do at home isn't their problem. Gays shouldn't have to hope for equal treatment under the law as a result of the suffrance of the straight population. I'm sorry, but that's just how I feel.

And of course, anyone against the status quo is considered a bigot (whether rightfully or wrongfully so).

Sadly true.

It seems here many times people argue that we have the opinions that we have, but at the same time chastise those who may be against their own views on homosexuality/sodomy. Very hypocritical.

It does tend to come across that way, unfortunately. On both sides.


As I said before, it depends on what the majority feels acceptable ala slavery, women inequality, homosexuals, etc.

Well, a majority still feels that abortion is acceptable. That doesn't sit very well with those who don't. I will leave that at that.

Don't expound the freedom of opinion and then turn around and accuse someone of 'bigotry'.

If I did I apologize, it wasn't intentional. However, I have had this happen to me, as well.

Peace,

V-03

 

Hey, slavery violated quite a few things too, but that didn't stop it from occuring.

Actually, Vaderize -- and I just brought this up -- slavery was abolished with the Thirteenth Amendment. Up to that point, I don't think it actually did violate the Constitution. (More in a moment.)


GAT:

You know, Bubba, republicans have filibustered more in history than any other party.

Even assuming that's true, they haven't filibustered a judicial nomination -- at least not in recent times.


I sincerely doubt democrats will 'filibuster' (if you even know what that term means, which I doubt, it's pretty hard and unheard of to filibuster anymore, muchless on a senate confirmation) any judge that is qualified. Even if they do, the senate is republican majority. So, no it's not trivial, but yes it is quite easy.

You doubt Democrats "will" filibuster judicial nominations?

Have you even been paying attention to the news?

They are filibustering two judicial nominations: Miguel Estrada and Priscilla Owen.


Vaderize, again:

Actually, I don't see that at all. I have backed up my reasons why I think that the ruling was appropriate and why homosexuals deserve equal rights. You have simply railed against the way it was done, all the while insisting that it's better for gays in violation of the law to go to jail even if it's a bad law than for the courts to invalidate something that the legislatures should have.

Right, because the latter rips to shreds the Constitution itself.

My reasons for believing sodomy laws in general are constitutional protected -- despite being bad law -- are as follows:

1) I see nothing in the Constitution about a right to anal sex.

2) The "equal protection" argument says nothing about sodomy laws that apply to both heterosexuals and homosexuals alike.

3) The "unenumerated rights" argument fails because the Constitutions' authors didn't fight the existing sodomy laws at the time. There's no reason to think a right to sodomy was ever in the authors' original intent when it comes to Amendment IX.

4) No amendment following Amendment IX changes what I just wrote.

5) The argument that we could fit a right to sodomy into Amendment IX by re-interpreting it fails because I think the Constitution should be simply not be reinterpreted.

The onus is on your position to prove that sodomy laws are unconstitutional. Y'all have the burden of proof, and I haven't seen sufficient proof.


I never called you a homophobe. Don't put words in my mouth. I challenged you to explain why, and I that doesn't automatically translate into me accusing you of bigotry.

If you can presume that my position is rooted in prejudice, I'll assume that your statement is just a veiled allegation of homophobia.

Quid. Pro. Quo.


I had enough dinner, thank you very much. I don't need you to continually feed me words.

Quid. Pro. Quo.


I understand your position, but you must understand that there are a lot of people who support the "living document" interpretation, and they are not a minority. What the founders implied regarding anal sex is utterly irrelevant to me. The founders could not have predicted the tremendous technological and social changes that the 20th and 21st centuries have wrought and as such, looking to how they would have dealt with such questions is farcical and attempts to impose centuries-outdated ways of looking at the world to modern time. Sanctifying the past is one thing, blindly following it another.

One could make the argument that technology extends the First Amendment's meaning of the word "press" to include television and the Internet. (If there's to be any re-interpretation, that might actually be justifiable.)

But the idea that the culture has changed radically in terms of sexuality is blown apart by the simple fact that there were sodomy laws in the times of colonial America.


I think the more