Lying. BTW: How's Liberty Post?
Whatever. You are so positive that everyone but you is a 'wacko', and that you can say anything to make a point, -- that there is little or no point in attempting to reason with you.
No, I am postive that certain kinds of folks are wacko. And you don't have a reputation for "reasoning" anyway. Either here or on other boards.
How odd. That's exactly as I quoted him.
NOPE, you cut him off, trying to make it appear as if he endorses the Libertarian position on the 9th Amendment. He absolutely does not. And he makes it clear.
What's even more laughable, is that you don't even understand what he is saying when it the portion you bolded. At issue in Troxel was a Statute in Washington State which allowed any person to petition for a court-ordered right to see a child over a custodial parent's objection, provided that such visitation is found to be in the child's best interest, unconstitutionally interfere with the fundamental right of parents to rear their children.
The majority opinion struck down that statute. Scalia dissented. Scalia would have UPHELD the statute, as he understood properly that the 9th Amendment does not grant substantive rights, and that the libertine view of the 9th would empower judges, not the people through their elected representatives.
Not at all. You misunderstand Scalia. --- His 'bold' position is that he has no power to "deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right." -- Quite true, he has no power to so deny.. He only has the job to make decisions on the constitutionality of such laws. The other branches have the power to change or enforce such laws.
Sorry, I don't misunderstand Scalia at all, and I am not the one trying to make him out to be saying something that he isn't. But I do understand where you are coming from. Libertine ideology doesn't mesh well with reading comprehension.
You libertines do this all the time, you bold one portion of a lengthy passage in the Constitution, or judicial opinion, and try to ignore what immediately preceeds and follows it. That doesn't work.
As I said above, Scalia DISSENTED from the majority holding which established an "unenumerated parental right". Scalia stated that while he personally held the view that such a right existed, the 9th Amendment did not affirm ANY unenumerated rights, and that judges had no right trying to identify what "rights" were unenumerated in the 9th in the 1st Place.
Scalia went on to say:
Judicial vindication of “parental rights” under a Constitution that does not even mention them requires (as Justice Kennedy’s opinion rightly points out) not only a judicially crafted definition of parents, but also–unless, as no one believes, the parental rights are to be absolute–judicially approved assessments of “harm to the child” and judicially defined gradations of other persons (grandparents, extended family, adoptive family in an adoption later found to be invalid, long-term guardians, etc.) who may have some claim against the wishes of the parents. If we embrace this unenumerated right, I think it obvious–whether we affirm or reverse the judgment here, or remand as Justice Stevens or Justice Kennedy would do–that we will be ushering in a new regime of judicially prescribed, and federally prescribed, family law. I have no reason to believe that federal judges will be better at this than state legislatures; and state legislatures have the great advantages of doing harm in a more circumscribed area, of being able to correct their mistakes in a flash, and of being removable by the people.2
Where? In your mind?
Nope, in yours.
"-- The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.. --" Like the right to breath air, which is substantive enough.
[T]he Constitution’s refusal to “deny or disparage” other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.
"In contrast to the first eight amendments, the Ninth Amendment does not specify any rights of the people, rather it serves as a savings clause to keep from lowering, degrading or rejecting any rights which are not specifically mentioned in the document itself. The Ninth Amendment does not raise those unmentioned rights to constitutional stature; it simply takes cognizance of their general existence. This is not to say that no unenumerated rights are constitutional in nature, for some of them may be found in the penumbras of the first eight amendments or in the liberty concept of the Fourteenth Amendment and, thus, rise to constitutional magnitude. It is only to say, however, that unenumerated rights do not rise to constitutional magnitude by reason of the Ninth Amendment. The foregoing interpretation of the Ninth Amendment is supported by the history of that provision, which reflects that the Ninth Amendment was added to the Bill of Rights to ensure that the maxim expressio unius est exclusio alterius would not be used at a later time to deny fundamental rights merely because they were not specifically enumerated in the Constitution. 1 Annals of Congress 438-40 (1789); II Story, Commentaries on the Constitution of the United States 626-27 & 651 (5th ed. 1891). Therefore, this court is of the opinion that there is nothing in the Ninth Amendment to be incorporated by the Fourteenth Amendment as the Ninth Amendment is merely a rule of construction. The alternative interpretation, which is unacceptable to this court, would be to construe the Ninth Amendment as incorporating all fundamental rights into the Constitution, although they were never intended to be rights of constitutional magnitude." CHARLES v. BROWN, 495 F. Supp. 862 (N.D. Ala. 1980)
"Fornication" laws are the epitome of "-- arbitrary impositions and purposeless restraints --"
I would not suggest that adultery, homosexuality, fornication and incest are immune from criminal enquiry, however privately practiced. So much [367 U.S. 497, 553] has been explicitly recognized in acknowledging the State's rightful concern for its people's moral welfare. Poe v. Ullman, 367 U.S. 497 (1961) (Harlan, J Dissenting).
Nope, not valid.. -- They are "-- arbitrary impositions and purposeless restraints --" unless they can be shown to meet reasonable standards that do not violate due process, depriving people of life, liberty, or property.
You demonstrate my point about retardation. You invoked Justice Harlan, and cite his own words ""-- arbitrary impositions and purposeless restraints --"
Then you try to ignore the fact that he lays out that traditional laws that protect morality ARE NOT "arbitrary impositions and purposeless restraints". He explicitly holds that Fornication, Adultery and Laws Criminalizing Homosexuality are perfectly acceptable.
The right of privacy most manifestly is not an absolute. Thus, I would not suggest that adultery, homosexuality, fornication and incest are immune from criminal enquiry, however privately practiced. So much [367 U.S. 497, 553] has been explicitly recognized in acknowledging the State's rightful concern for its people's moral welfare. Poe v. Ullman, 367 U.S. 497 (1961) (Harlan, J Dissenting).
Can you read? Can Justice Harlan be any more clear? He makes clear that the right of privacy is NOT absolute, and that adultery, homosexuality, incest and fornication ARE NOT IMMUNE FROM CRIMINAL LAWS, no matter HOW PRIVATE each may be practiced. He expressly stated that the State has a rightful concern in the moral welfare of the people in such cases.
I don't 'see' that at all. You see it because you want States to have the power to prohibit. Our liberties cannot be prohibited:
If you can't see the clear writing of the very person you invoked, then your either an idiot, or your a dishonest hack. Which is it?
Yet the very inclusion of the category of morality among state concerns indicates that society is not limited in its objects only to the physical well-being of the community, [367 U.S. 497, 546] but has traditionally concerned itself with the moral soundness of its people as well. Indeed to attempt a line between public behavior and that which is purely consensual or solitary would be to withdraw from community concern a range of subjects with which every society in civilized times has found it necessary to deal. The laws regarding marriage which provide both when the sexual powers may be used and the legal and societal context in which children are born and brought up, as well as laws forbidding adultery, fornication and homosexual practices which express the negative of the proposition, confining sexuality to lawful marriage, form a pattern so deeply pressed into the substance of our social life that any Constitutional doctrine in this area must build upon that basis. Compare McGowan v. Maryland, 366 U.S. 420 . Adultery, homosexuality and the like are sexual intimacies which the State forbids altogether, but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected. It is one thing when the State exerts its power either to forbid extra-marital sexuality altogether, or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy. ... The right of privacy most manifestly is not an absolute. Thus, I would not suggest that adultery, homosexuality, fornication and incest are immune from criminal enquiry, however privately practiced. So much [367 U.S. 497, 553] has been explicitly recognized in acknowledging the State's rightful concern for its people's moral welfare. Poe v. Ullman, 367 U.S. 497 (1961) (Harlan, J Dissenting).
Why do you feel it necessary to lie about the person you invoked?
Lying.
Any one that disagrees with you is a wacko liar? You need rest, monkey.
BTW: How's Liberty Post? I am postive that certain kinds of folks are wacko. And you don't have a reputation for "reasoning" anyway. Either here or on other boards.
LP? -- Thanks for the clue.. -- I think I see the pattern here. You're a disgruntled lawyer I've 'outed' before at FR, and then at LP. -- That you OPH? -- Just couldn't stay away without some kind of 'payback', eh?
You misunderstand Scalia. --- His 'bold' position is that he has no power to "deny legal effect to laws that (in my view) infringe upon what is (in my view) that unenumerated right." -- Quite true, he has no power to so deny.. He only has the job to make decisions on the constitutionality of such laws. The other branches have the power to change or enforce such laws.
Sorry, I don't misunderstand Scalia at all, and I am not the one trying to make him out to be saying something that he isn't. But I do understand where you are coming from. Libertine ideology doesn't mesh well with reading comprehension. You libertines do this all the time, you bold one portion of a lengthy passage in the Constitution, or judicial opinion, and try to ignore what immediately preceeds and follows it. That doesn't work.
It worked. All you can do is sputter about "libertines".
"-- The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.. --" Like the right to breath air, which is substantive enough.
"-- This is not to say that no unenumerated rights are constitutional in nature, for some of them may be found in the penumbras of the first eight amendments or in the liberty concept of the Fourteenth Amendment and, thus, rise to constitutional magnitude.
1 Annals of Congress 438-40 (1789); II Story, Commentaries on the Constitution of the United States 626-27 & 651 (5th ed. 1891).
Therefore, this court is of the opinion that there is nothing in the Ninth Amendment to be incorporated by the Fourteenth Amendment as the Ninth Amendment is merely a rule of construction. The alternative interpretation, which is unacceptable to this court, would be to construe the Ninth Amendment as incorporating all fundamental rights into the Constitution, although they were never intended to be rights of constitutional magnitude." CHARLES v. BROWN, 495 F. Supp. 862 (N.D. Ala. 1980)
You cite 'penumbras' and incorporation doctrine to support your belief that the 9th is "unsubstantive"? Dream on.
Fornication" laws are the epitome of "-- arbitrary impositions and purposeless restraints --" unless they can be shown to meet reasonable standards that do not violate due process, depriving people of life, liberty, or property.
Can Justice Harlan be any more clear? He makes clear that the right of privacy is NOT absolute, and that adultery, homosexuality, incest and fornication ARE NOT IMMUNE FROM CRIMINAL LAWS, no matter HOW PRIVATE each may be practiced.
He's absolutely right. -- But the State has no power to write laws that are "-- arbitrary impositions and purposeless restraints --" unless they can be shown to meet reasonable standards that do not violate due process, depriving people of life, liberty, or property.
Why do you feel it necessary to lie about the person you invoked?
Why do you feel it necessary to lie about the person you disagree with?
You've been using this same ploy since the first time you registered at FR, years ago. -- Pretty sad when a hot shot lawyer is reduced to pointing the liar-liar finger. Grow up.