Contract With Conservativism

There's a discussion on this in this interview with Bork: http://www.hoover.org/publications/uk/2940316.html

Thanks for the link. It was an interesting read. A few comments. First, Bork does recognize that privacy was at the center of the 4th Amendment, which some conservative jurists do not agree with. Second, he admits that the Constitution is vague in many places, but insists that the only proper way to interpret it is to look at the original intent. He of course fails to mention that much of it, especially the vague areas, was the subject of much controversy and the authors as well as those at the convention took the position of letting sleeping dogs lay, rather than closing loopholes.

But his insistence on looking at the original intent stops short of treating the 2d Amendment with such conservative glasses. He takes the correct position that privacy has no place in the abortion discussion without consideration of all parties. Yet he discounts the history of abortion, and tosses out the viability issue without so much as an argument against it.

Next he discusses Lawrence, where he gets very weak in his arguments. He says that the Constitution neither approves nor disapproves of homosexual sodomy or abortion. That then, in his wisdom, is clearance for laws. Bad call. That could open up any kind of tyrannical laws aimed at specific groups. In South Carolina for instance, predominately protestant, we could enact laws preventing Catholics or Jews from opening businesses.

Next Bork states that somehow it is just to distinguish between heterosexual marriage privacy and the privacy of others. He seems to not understand that privacy is either a right or it is not. It's not different for different cultural groups, or different for different social or moral issues. Here he tries to reduce the 14th Amendment to the original reason for its adoption. He does not distinguish between a reason for adoption and the scope and purpose. He goes back and forth. Reason for adoption is unimportant when discussing the 2d, but vital when discussing the 14th. Why? And to presume that the 14th applies only to black codes is to assume that it is constitutional to discriminate. Yet he seems to agree with Brown.

All in all, while I like Bork, and we need jurists who are conservative, that is, who tend to slow things down until they can be thought out, he is in fact, just as human as the rest of them. But it was interesting.

I agree with what you said, and concur that flexibility is what politics looks for. It is why they call it a "Art-form".

The problem exists in areas of principle where there is no flexibility, not even simple incremental-ism or anything else.

To me, there should be a black/white rule that says if there is no Grey the issue does not belong in the rooms of Congress unless there is near total agreement, as in our current two thirds margin discipline.

If the issue is not ripe enough to pass that test, then it needs to stay at the dinner table until it is.

When I look at the sordid history of abortion, for example, I wonder what the debate would have looked like if we had employed some common sense.

What I see now is lacking in civility and this fact prohibits the issue from maturing and it almost guarantees it to remain divisive and damaging to the party...To any party or any public group.

Perhaps the 100%'ers could employ a bit of logic to get what they want, but they can't. they won't. What if they did?

So it continues..............and it pains me to point out the obvious.

Another very unique element of this issue is that it relates to only one gender. The decision rests with females. As a male, I am but a supportive bystander, or should be. I think that Guliani, for example, is only reflecting this reality, as do most males. This is where the social litmus test fails miserably. This is why I think social issues need special care and attention and it is not getting it from many on the left or right.

The matters appropriate for this Court’s resolution are only three: Texas’s prohibition of sodomy neither infringes a “fundamental right” (which the Court does not dispute), nor is unsupported by a rational relation to what the Constitution considers a legitimate state interest, nor denies the equal protection of the laws. I dissent."

Yes, I have read the Scalia dissent, as I have had this discussion with others here. But Scalia does not consider privacy a right, so we are off the same page at the start. There is no distinction between the privacy of married couples and the privacy of non married couples, as long as it is between consenting adults and no other parties are harmed. I agree with him that many laws are based on morals, but I also state that they have no place in a free society. He mentions a litany of possible due process issues, but some of them are simply straw men. Bestiality is illegal because an animal cannot make a reasoned decision to agree, not because it is immoral, which of course it is.

He does not seem to care that heterosexual sodomy is somehow protected, but homosexual sodomy has none. He simply assumes that in the interest of morals, laws can be enacted, even if they violate privacy, due process and equal protection for different groups. Bad call.

And, just like Justice Stewart, I “can find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy,” ibid., or as the Court terms it today, the “liberty of the person both in its spatial and more transcendent dimensions,” ante, at 1."

Perhaps it's because he does not really believe that the right to privacy is a right against governmental intrusion on the person and his property without just and due cause. He would applaud the 4th Amendment which only puts limitations on the government in how it can break through privacy, but feels it's ok to backdoor it with laws and regulations that do far more harm to society than the occasional no-knock. It's simply because he like many, believe that the powers of the state to reach into the bedroom are greater than the rights of the individual to be protected from these powers. But rights trump powers every time, as they should.

"A state does not have a compelling interest in withholding something for religious or moral reasons. "

Why not? Regulation of the moral order is as compelling a state interest as, say, redistribution of wealth or keeping trees trimmed in our town. A simple example would be bans on bigamy, consuming child pornography and cutting down trees on one's property. Nothing more than moral strictures that are at odds with Lockean compact form of Government.

But whose moral order? Keeping trees trimmed in our town does not infringe on privacy, and would only be unconstitutional if it was enforced or applied to different groups. Bigamy laws have been ruled constitutional because of a states's interest in protecting the traditional marriage concept for procreational purposes, and just as with gay marriage, does not require that the state legalize such unions. But if the state decreed that non married couples or groups could not live together, it would clearly have crossed the line, as a recent ruling confirmed. As for child pornography, laws which prevent harm to others are almost always constitutional. Hopefully we don't have to discuss the harm here. As for general pornography, laws can legitimately limit its public display, but not limit it entirely.

You are attempting to assert a philosophical point about what states ought do (ought not do) as a Cosntitutional one, and failing.

Actually, I am linking each "philosophical" point to the Constitution. Laws which infringe on free speech, privacy, due process or equal protection can and should be challenged, and if the state cannot articulate a compelling interest in the laws, they should be ruled unconstitutional. You may not agree with me, but unlike Bork and Scalia, (both of whom I respect), I do not bounce around between the 2d and 14th Amendments, using strained logic, trying to justify the unjust.

First, as shown alrady, the only real privacy right is 4th amendment and I dont see the RR particularly positioned on it.

Again, the 4th merely states the restrictions that the state has on invading that privacy. It doesn't reflect any scope or limitation of privacy. As for the RR, their main concerns about privacy are, as best I can conclude, first privacy of women to have an abortion, which concerns I agree with, without likewise considering the status of the fetus with respect to its possible rights. Second, the RR does not believe homosexuals should have a right to privacy to engage in sodomy, but most believe heterosexuals do have such a right. Here the issue transitions from privacy to equal protection of the law, which the RR also believes has been incorrectly interpreted.

But what many tend to forget is that a bill of rights is designed to protect the minority, not the majority, since they are the ones in power. The tyranny of the majority is frequently far more insidious than the tyranny of the minority.

Every single law on the books is a sort of moral restriction on people. Every act of law is an "ought" or an "ought not". There is no reason to single out the RR when every other political persuasion is doing the same thing.

That's a fair criticism. My response would be that in general, most laws on the books (moral though they may be), are in place to effect a social structure that must by definition, contain some restrictions on freedom. Their purpose, however, usually is and should be for the protection of all of the members of the society. Frequently the RR wants laws and restrictions for no other purpose than to ensure that traditional, cultural, social norms are maintained. And frequently this means enacting laws that prohibit some groups from engaging in activities enjoyed by the majority.

Laws made to protect, I agree with. Laws made only to restrict, I do not.

You are only strengthening my point, which is that the text and original intent of the bill of rights and the 14th do not cover nor justify the claims you and the ACLU might make about these amendments.

First, there is no simple original intent in most of the Bill of Rights. If you do not believe me, look at the Anti-Federalist Papers by Ketcham, and see the pages after pages of suggested amendments and various state bills of rights, to see that many different desires and interpretations existed at the time. But I don't claim anything about the 14th other than I take it at the words written. If it was not to be taken literally, why then didn't the authors put limitations within it? If it was to only cover the black codes, why then wasn't a sunset provision put into it?

It is indeed strange that we needed a whole new amendment to get women voting, and yet 14th amendment + judicial activism is enough to end all-male schooling in places.

We didn't need them, but to ensure that these rights were forever more protected. The Bill of Rights does not grant a single right. It merely codifies the restrictions government has on infringing on them. A right is something that transcends time and geography. A state cannot grant a right, but only a privilege or freedom. Once again, the rights we are protecting are those of the minority, since the majority has the power and needs no such protection.

"Or it it properly within the purview of the people of that state to solve? "

If it is within the purview of the people of that state to solve, then all the Federal meddling in people's decisions at the state level, such as Griswold, Roe, Lawrence, etc. should be overturned. The states should be left alone is your reasoning, but it is inconsistent.

To reiterate that a state has a duty to protect all of its citizens under those rights guaranteed by the Constitution or be taken to task is not to suggest that the principles of federalism are at risk. There is no conflict between federalism and the Bill of Rights. The first duty of every government is the protection of the rights of its citizens. Each of those decisions, whether you agree with them or not were rights issues. The federal government and especially the Constitution do not contemplate restricting the rights that a state may recognize on its own, even if broader than the Bill of Rights. But those who push for a constitutional amendment are doing exactly that. They are two very, very different issues.

If you want to defend Federalism and democratic due process on one hand, you ought not support judical rulings that have undermined them.

A state may not infringe on the rights of its citizens, and it must comply with the Constitution. Outside of that, as per the 10th Amendment, a state has those powers not reserved to the federal government, nor restricted by Article VI.

I have changed my party affiliation to "I".

Good. Then you are one of the ones who 'just did it' and didn't sit around threatening how you were going to do it.

Good luck. Hope you can hang in there while your "I" presidential candidates get defeated over and over.

dismantlement of the republican coalition.

Nothing like a little hyperbole. It was not surprising that we lost control of Congress given that we were in mid-term elections in the second term of a president. The opposite result would have been the surprise. (Not saying I'm happy about it, but it's historically what we should have expected.)

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