Posted on 12/09/2006 4:33:07 PM PST by shrinkermd
This is a fine well thought out article than I have not been able to access so I am discussing and summarizing it here.
Alfred Regnery is the Publisher of the magazine and is the most prominent and influential conservative book publisher. His father, Henry Regnery, was similarly ensconsed and Henry Regnery wrote the introduction for Russell Kirk's classic The Conservative Mind (1986 edition published in 1953). Alfred is promising a book on conservativism and this we will have to see, but if he is as clear and able as this article it should be a best selling article.
The article summarizes by making the following points.
Democrats did not win Republicans lost.
Republican House leadership is gone and that is good.
Many newly elected Democrats ran on middle-of-the-road or even conservative platforms.
Spending by Republicans in last Congress was embarassing and is now unnecessary.
Gridlock in Washington is a good thing.
Little will change.
Democrats will be partially responsible for everything.
Neither Republicans or Democrats ran on any sort of platform
Good time for conservatives to regroup and come up with a coherent plan of action.
In conclusion, Alfred Regnery states, "The Democratic Victory was not a repudiation of conservativism but of those who betrayed conservativism."
Actually privacy is one of the most cherished of rights. It is the basis for the 4th Amendment. The 4th presumes a privacy right, or there would be no reason for it. The 4th outlines the responsibility for breaching that right. And that all of man's rights whether endowed by our Creator, natural or otherwise described, were not enumerated in the BOR and afterward does not presume that none exist, as stated in the 9th Amendment.
Of course, no rights are absolute without any limitations. The 1st Amendment limitations are constantly being debated; the 2d Amendment contains limitations, including age, mental capacity and criminal record among others. Even the 4th and 5th are constantly challenged. Why should not a right to privacy have similar limitations, though practically speaking, probable cause will permit its infringement any way.
2. Equal protection has nothing to do with the ruling.
No, but since its intrinsically linked with due process in the 14th, most of the RR despise it like a hailstorm in a vegetable garden. Many challenges to laws involving either homosexuals or out of wedlock couples use the equal protection clause.
3. "Due process" ... was followed when the legislature followed due process in passing the law and respecting the rights of accused as they executed the law. So the oxymoronic "SUBSTANTIVE due process" a legal mis-construction first used in the infamous Lochner v New York was applied in this case.
Another one that the RR hates. Remember the laws we discussed earlier on unmarried people living together at the same address? They were due process and privacy issues. But just curious, do you really believe a state has a legitimate interest in withholding birth controls?
Our real natural and constitutional rights are rights to not get Govt interference as you *do* things or say or think things, such as free speech, right of RKBA for self-defense, right against self-incrimination, etc. Such rights do not need 'penumbras' or vague calls to 'substantive due process', for they are directly in the bill or rights.
Yet Jefferson spoke of certain unalienable rights, and among those were life, liberty and the pursuit of happiness. That the BOR was put into the Constitution almost 70 years before slaves were freed speaks volumes for what may have been left out. And I wonder how, without the 14th today, many groups in our Country could actually have liberty and the pursuit of happiness?
If it were not for the courts and the recognition that rights were not either recognized or enforced, we would still have miscegenation, no privacy for selected groups, required Christian prayers in public schools, segregation in schools, discrimination against most of today's population in the workplace and other public accommodation restrictions for those not good enough. Now, what groups do you think fought against every one of these?
Your praise is absurd. There was almost zero direct impact of this ruling, whose main consequence was as a setup for the Roe v Wade ruling. It's absurdity is evident in the fact that both birth control and abortion laws were liberalized *before* the Supreme Court made their ruling.
The right wing moral police never cease their efforts at imposing their values on the population at large. At least we likely agree on one thing, Roe. The real issue for abortion is the personhood of the fetus, not the privacy rights of the female. Though most Americans cannot tolerate late term abortions, the numbers fall if the first term is discussed. And while most Americans, I believe, support some restrictions such as parental notification, waiting periods, etc, few support total bans as was attempted in South Dakota. I will be interested as this moves up the ladder in a new USSC.
Quite the non sequitor, eh - anything that is not feminist is 'far right'?!? LOL. Obviously pro-life groups are most concerned, but I dont see why you call steve Mosher 'far right', a label only liberals use, also ... my link on China's forced abortions was to the Independent, a leftie Brit paper.
Your link was to lifesite.net, and as many issues here on FR in the arena of "social conservatism" start with either lifesite or WND stories, which are pretty far right no matter how one measures. That I quickly linked you to another side of the issue, doesn't discredit it any more than yours.
then you need consider those who raise problems about UN programs as allies, not enemies. They agree with you!
I don't consider anyone here an enemy. That their motives are somewhat hidden in that if a UN program actually pushed abstinence rather than condoms they wouldn't utter a word speaks volumes about their condemnation of the UN. I don't like the UN in either case.
Abstinence education can do that, so you should support it.
Tell that to the Africans. Tell that to the millions of adults, homosexual, heterosexual who choose to live together. The RR goal of abstinence is a moral, not a health goal.
Why not? We have our public schools preach 'tolerance' and 'diversity' and 'do good'? You oppose that secular progressive indoctrination? You oppose 'character education' too?
I would oppose much of it. Teach patriotism, history, the sciences, literature, and leave most moral teaching to the parents and ministers. And I believe handing out condoms in school is just such a parental responsibility. Making them available for adults is a different story however.
I guess I feel differently because I *Have* children. I see the nonsense they are subjected to in the culture and I absolutely understand those parents who try to protect their kids from a degraded culture. Just because some kids are not well-raised doesnt mean we should define moral deviancy down to the lowest common denominator... and add insult to injury by making taxpayers pay for it.
I'm not sure where you are heading with this. I might agree with you. I don't have a problem with reasonable sex education in schools, nor do I have a problem with a recognition that homosexuals exist in our society. And I know some schools go too far with it, and that's where parents do come in. They should know what is being taught, participate with school faculty and school boards, and above all provide whatever moral guidance they feel inclined to share with their children.
Better we spend money on 'moral indoctrination' than 'immorality indoctrination' which is much of what is going on in education.
So if part of the moral indoctrination includes discussing the benefits of a homosexual lifestyle, you would not mind? The issue is whose morality are we going to emphasize, mine, yours or the teacher's? Is the idea of social justice one of those moralistic issues you would not mind a leftist teaching your child? Some would teach that suicide bombers are morally right for what they do. I think not.
Federalism is a liberal position? Every one of those states mentioned can take whatever corrective action is required if they so choose. That Massachusetts has not "fired" its legislators who are sitting on the constitutional question is their problem. The Constitution guarantees a republican form of government for each state. It does not guarantee specific results. There is no legitimate challenge to marriage at the federal level or with DOMA, which should be the only concern of the federal government.
The conservative position is not to overturn law via court activism, but to use the proper legislative process to protect marriage.
No it isn't. The conservative position is to guarantee a republican form of government, not to oversee it, unless it violates the rights of its citizens or violates Article VI.
Now, the reason that a Constitutional Amendment at the Federal level may be necessary is that the danger of DOMA getting overturned is a real one, given the mis-rulings of the MA and other courts in disrespecting plain language of the law.
I have not seen a single case successfully challenging DOMA. Should it ever happen, and it certainly will not given the makeup of this USSC, Congress will meet and pass an amendment in days, and it will be ratified within weeks. So there is no need for a constitutional amendment. But that was the pet of the RR, and Congress in it's election year wisdom threw them some crumbs knowing all along it would never pass muster.
There is a distinct and real danger that 'full, faith and credit' plus judicial activism will equal gay marriage in 50 states, despite the clear intent of the people in practically every state to not have gay marriage.
Yes, that was the main selling point, but there was and is no merit to it at all. Will some district judge from time to time come up with something akin to Massachusetts? Sure, but just as with Georgia, it will be almost immediately shot down. Even the Florida gay adoption ban was upheld by an appeals court, with the USSC refusing comment.
An absurd non sequitor. Your ability to buy a used car, to have gay sex with an anonymous friend you pick up in a gay bar, set up a household with your sibling, or write a will to give your estate to your pet cats, can continue unimpeded if America continues with traditional marriage.
Your non sequitors about judicial activism ending traditional marriage are fine, but mine reflecting the goals of the RR are what, not a danger? They're not a danger as long as the 14th Amendment exists, and as long as judges can continue to read and think.
There is zero attempt to take away from gay people anything they have today, rather it is opposition to culture/legal changes the gay activists want to make. Any legal relationships that gay s can have today, they can have tomorrow - just not something called 'marriage' with another member of the same sex.
Many states are outlawing any legal relationships that would provide just the benefits I discussed. So yes, the RR is working in every state, not just to define marriage, but to add language making any non heterosexual marriage illegal, having no legal rights, either to deal with end of life decisions, adoptions or essentially in some states any kind of legal relationship. So yes, they are working on it overtime. And that is no non sequitor.
Again with the boogeyman talk ... why are you repeating the rehtoric of the extremists on the gay agenda side? Same language, same rhetoric, same nonsense.
You may want to read some of recent constitutional amendments passed on so-called traditional marriage. They are far broader, and some no doubt will be successfully challenged on due process and equal protection bases.
So say the gay activists, but in fact gays have average incomes above the general populace. Acceptance in the workplace is a non-problem.
Check in with the homosexual ping list, follow their threads a bit and you will see efforts to ensure that gays and lesbians are not afforded the same protections as the other seven sisters (race, gender, ethnic origin, religion, etc) in the law. The efforts continue even if you don't believe it. Recall Colorado Amendment 2? It was ultimately found to violate the 14th Amendment, and was designed to prohibit any local government from putting homosexuality into any protective laws.
Special 'protection' for gays will make a difference if you have it in your heart to 'get' the Boy Scouts of America and to have Govt tread on religious organizations and their moral rules
I don't see that at all. In fact, since the USSC decision on the right of Boy Scouts to legally discriminate because they are a private organization, and churches for the same reason as well as freedom of religion, I've not seen much in that area at all for quite a while. The local school that won't permit scouts to meet in their building is fine, since scouts do far more for their sponsors that they receive from them.
but will have little positive effect on gays in the workplace, who already are protected from abuse in other ways.... unless you are a gay lawyer specializing in suing companies over such matters.
I've not seen a lot, but this is the issue, whether they can become one of the protected classes. But here is where the RR may just be shooting themselves in the proverbial foot. There anti-homosexual crusade could be starting to backfire on them, especially in the areas discussed earlier. Most Americans now accept gays and lesbians in our society. The RR hasn't and will continue its crusade. Where it will go is anyone's guess, but I doubt it will make the RR happy.
As someone who opposes imposing morality you should of course oppose this imposition of moral standards by Govt.
Let's see what comes out. It may be no less a legitimate issue than other discrimination. I don't see it, but when the legislation actually makes it, we may see the rationale. I agree that homosexuals are in the top 1/3 of earners in the Country. I hear only rare stories of discrimination in housing, though there was one recently. I simply can't see what it will be designed to resolve. And at least here is where the RR can offer some legitimate opposition, if they would leave it at that.
"That is the liberal position. The gay activists are wanting gay marriage irrespective of what the people want, and have sued in court in particular states where the courts are likely to override the will of the people. So far, they won in 3 states, VT, MA, NJ to get enough traction to force legislative changes from the court bench."
"Federalism is a liberal position?"
There you go again. Sophistry on your part. "THE ENDS JUSTIFY THE MEANS" is the *real* liberal position. I was speaking of the abuse of the judicial branch via the conspiracy of liberal activist judges and gay activists to make something happen which they could not make happen via proper due process. you are doing the ol' slip sliding away.
The liberals care not if judicial restraints and separation of powers concerns are trodden over. It is an assault on democratic due process. Your attempt to elide and ignore this abuse of due process while using 'due process' as a talking point makes your whole argumentation very suspect. If you really care about 'due process' you'd be offended by what this court did.
Even if you were for gay marriage you ought to see the behavior of the Mass. supreme court as both imperial and wanton: inferring something in the ERA that the authors explicitly discounted and forbade when it was passed; imposing on the legislative branch; and simply uprooting 1500 years of law on marriage. To top it off, the chief justice had an ethical violation, by tipping off her support to a friend gay-lesbian group prior to the ruling.
"The conservative position is ..." ... described more broadly than via a simplistic view of constitutional construction (btw, if you want lessons in Constitutional Law, go ahead and read a conservative like Bork on the matter).
"Your non sequitors about judicial activism ending traditional marriage are fine" ... you dont call something a 'non sequitor' (meaning 'doesnt follow') to define a dsecription of an event that *already happened* as a cause-effect - judicial activism created gay marriage in Massachusetts, pure and simple. To deny that is to be on another planet.
".... but mine reflecting the goals of the RR are what, not a danger? " ... the word 'fearmongering' comes to mind. I know of no cases where gays are being denied legal rights they had before. As recently as 10 years ago even civil unions were unthinkable and now they are parading homosexual unions and gay marriage as some constitutional right. The culture war is pretty lopsided when hollywood is far more gay friendly than evangelical friendly, likely due to having far more gay screenwriters than Christian one.
"So yes, the RR is working in every state, not just to define marriage, but to add language making any non heterosexual marriage illegal" - working to define marriage *as it has been defined for 1500 years*.
"You may want to read some of recent constitutional amendments passed on so-called traditional marriage. They are far broader, and some no doubt will be successfully challenged on due process and equal protection bases."
Only if judicial activists rule wrongly on it. You sure have a way with inconsistency - you really don't want federal interference in state issues, but fail to see that federal court interfernce in state lawmaking is the worst kind of anti-Constitutional and anti-democratic mucking up of our legal system there is. Dont you see your own double standard at work here? If states are to be free to make their own rules on marriage, then let them - without Federal court interference.
"The local school that won't permit scouts to meet in their building is fine, since scouts do far more for their sponsors that they receive from them."
So you dont like the Boy Scouts? If scouts do things for sponsors, schools should sponsor them.
"There is a distinct and real danger that 'full, faith and credit' plus judicial activism will equal gay marriage in 50 states, despite the clear intent of the people in practically every state to not have gay marriage."
"Yes, that was the main selling point, but there was and is no merit to it at all. Will some district judge from time to time come up with something akin to Massachusetts? Sure, but just as with Georgia, it will be almost immediately shot down."
So far, you are right, yet we cannot trust courts to do the right thing and it takes only one bad ruling to destroy traditional marriage. Simply because a legal position has no merit in law, doesnt mean a court won't rule that way. We've seen bad rulings of huge consequence before (Roe v Wade).
The only way to know this is unnecessary is to get to a position where Massachusetts' gay marriage law is rolled back.
" 3. "Due process" ... was followed when the legislature followed due process in passing the law and respecting the rights of accused as they executed the law. So the oxymoronic "SUBSTANTIVE due process" a legal mis-construction first used in the infamous Lochner v New York was applied in this case."
"Another one that the RR hates. Remember the laws we discussed earlier on unmarried people living together at the same address? They were due process and privacy issues. But just curious, do you really believe a state has a legitimate interest in withholding birth controls?"
LOL. Lochner v New York was a 1905 ruling that overturned a New York law limiting baker's hours. I dont think the RR cares a whit about it, but it does prove a point: This ruling (Oliver Wendell Holmes dissented) is infamous as an example of judicial excess, yet curiously the same excess today is applied solely by the activists in social legislation and not economic ones, and it is not noticed by liberals how this infamous ruling shares the same illogic as the current rulings they praise.
As for 'due process' that is solely about (or should be about) what it means: PROCESS. How you are brought into the justice system and handled - rights of accused, how you are given a fair trial, rights against self-incrimination etc.
Due process is not about overturning duly passed laws.
There are many bad laws out there. Only some of them are unconstitutional. CT birth control law at the time of Griswold was a useless law, but that didn't make it unconstitutional IMHO.
The idea of outlawing birth control in this age is almost absurd and I'd oppose it of course. Yet every liberal who supports the existence of the FDA is admitting a state interest in withholding medicine, and if not medicine, why not birth control whic his also subject to FDA control. Most birth control requires a prescription, a state-regulated mechanism. It is a curious thing that abortion clinics resist mightily the same level of scrutiny and regulation that hospitals are subject to.
Actually privacy is one of the most cherished of rights. It is the basis for the 4th Amendment. The 4th presumes a privacy right, or there would be no reason for it. The 4th outlines the responsibility for breaching that right. "
The 4th amendment is not about 'privacy', that is a post hoc explanation and construction that, as I said, was developed in the 1960s. The 4th amendment doesn't use the word privacy and is really about the due process right of being free from arbitrary Government search and seizure. 5th amendment right against takings and self-incrimination were similar. Yet the same state legislators that passed these bill of rights laws in the 1790s would make sodomy a capital offense and forbid adultery. The 'right to privacy' wasn't even elucidated by the Supreme Court until the 1960s.
I and most conservatives don't particularly cherish 'privacy' as a right, since the real right is about keeping Government limited and 'privacy' doesnt directly implicate what Government can't do. As I said, its subject to interpretation. If you have a right to do something, you have the right to do it out in the OPEN, and if you are doing something criminal, doing it in private doesnt make it legal. 'privacy' have been a cover for getting govt out of certain kinds of laws, but it begs questions such as "Should we stop the Govt from regulating consensual commercial intercourse between consenting adults?" It's better to chuck the whole construction and terminology altogether and speak of what Govt imposition we are supposed to be free *from* under this or any other right.
I have social issues as well. Everybody does.
The way I understand this problem, a problem that is directly related to social issue politics, is that not all social issues can or should be in the political arena.
The reason is quite simple. Some social issues, are matters of conviction. Those issues should remain outside politics, and should be kept separate. Other social issues that have possibilities of compromise are fine to debate any day of the week.
Politics is a arena where the most often used and most effective tool is compromise.
Convictions cannot be compromised by definition, and the definition of politics is and always has been the "Art of Compromise".
I hope you can see that convictions and compromise are not compatible. This is why I said what I said.
Having said that, I also believe that more often then not, some convictions do not belong in that category and people make a mistake by doing so. Once this occurs and it becomes conviction, it it likely to NEVER be solved as a result.
I think anyone who thoughtfully considers what I have said, should see the relationship and know this to be true from your own observations.
I've had many people tell me that my strong convictions against abortion should be kept separate from my decisions on voting, etc. Sorry, not going to happen.
That's what I understand, and that is part of the raft of bad reasoning that is leading to the dismantlement of the republican coalition.
It is almost complete and will be obvious to all by '08. It will be a long while before another is formed, and this is a sad thing, but totally explainable as I have tried to do for a couple of years or more.
The 100 %'ers, as some refer to them, have totally destroyed any chance of getting even a portion of what they wanted, and by doing this they have destroyed the chances for any other conservative reform.
But that is the way the cookie crumbles. I'm not going to cry a river, but I will not miss a chance to place the "base" blame where it belongs. The politicians who actually made these errors, are mostly gone in the last election or by resignation. The ones that are left are reorienting as we speak.
Back to the minority trenches we go, but this time, I won't be participating. I have changed my party affiliation to "I". I have already been in those trenches. I did not like it then, in 1970, but I knew how to get out, and we did.
But now the way we got out was rejected by idiots in the party and they ran with their new found power and forgot how they came to have it.
It is fundamentally politically fair that they have now lost it. Perhaps one day you will understand what I have said, but I won't hold my breath in anticipation..
If Pence were from a larger state that's in play (like PA or OH), he'd be a great candidate for 2008. The GOP is sorely lacking at the moment.
Yes, it is. Yet you deny the issue here. What is the end justifying the means when so-called conservatives will sacrifice the Tenth Amendment in order to step into a state issue, such as the marriage amendment or the Terri Schiavo legislation? Both of those issues are well within the purview of the state (under the concept of federalism), but because the RR didn't like what might come out of it, were ready to use the central government to solve it. These are the very same "states-rights" crowd that scream loudly every time a federal judicial decision recognizes a bit more freedom. Go figure.
I was speaking of the abuse of the judicial branch via the conspiracy of liberal activist judges and gay activists to make something happen which they could not make happen via proper due process.
You were speaking of a specific state using its due process vehicles. You don't like the result, in spite of the fact that the people of that state can solve the problem if they wish, so we need a constitutional amendment! Talk about slip sliding away. Maybe we need a constitutional amendment to prohibit pornography, prostitution, gambling, suicide, gay unions in addition to the gay marriage amendment, abortion, face-lifts, etc. After all, every one of those are issues in different states, with different values...horrors!
Even if you were for gay marriage you ought to see the behavior of the Mass. supreme court as both imperial and wanton: inferring something in the ERA that the authors explicitly discounted and forbade when it was passed; imposing on the legislative branch; and simply uprooting 1500 years of law on marriage. To top it off, the chief justice had an ethical violation, by tipping off her support to a friend gay-lesbian group prior to the ruling.
Yes, you are correct. So is the answer to do away with a republican form of government to ensure that all state court decisions comply with our sense of values? Or it it properly within the purview of the people of that state to solve? Interesting that the issue has not been in the courts for a few years now, but in the legislature. Now of course, the state legislature is playing games with it. I guess in our wisdom we should only permit state legislative actions that comply with our sense of values too.
"Your non sequitors about judicial activism ending traditional marriage are fine" ... you dont call something a 'non sequitor' (meaning 'doesnt follow') to define a dsecription of an event that *already happened* as a cause-effect - judicial activism created gay marriage in Massachusetts, pure and simple. To deny that is to be on another planet.
Since a non sequitur is a conclusion that does not follow the premise, I'll stick with my label. First, judicial activism in Massachusetts may have added a category to the definition of marriage, but as for the ending of traditional marriage, I'd ask how? Have any heterosexual couples to your knowledge decided against marriage because of the decision? Have any divorces taken place because of it? No? Well then, I guess traditional marriage has not ended. And as for your conclusion that because of Massachusetts, DOMA is on its deathbed, again a faulty conclusion...or a non sequitur.
As recently as 10 years ago even civil unions were unthinkable and now they are parading homosexual unions and gay marriage as some constitutional right.
While I don't see gay marriage as any kind of constitutional right, to deny them any kind of legal relationship will probably not survive a 14th Amendment test. In any case, using a long history of tradition as a reason not to recognize whether a right exists or doesn't exist is to deny miscegenation, discrimination, segregation just to name a few. Each rights claim should be examined on its own, looking at whether a party has been discriminated against, and whether there is a compelling state rationale for such discrimination.
The culture war is pretty lopsided when hollywood is far more gay friendly than evangelical friendly, likely due to having far more gay screenwriters than Christian one.
I agree with that, but my concern is what venue is used to fight back. Culture is clearly in the purview of the populace, and the state should have little cause to step in. If the people reject it, Hollywood will follow suit. Regardless of the fact that Hollywood is packed with leftists, they still answer to the dollar.
Only if judicial activists rule wrongly on it. You sure have a way with inconsistency - you really don't want federal interference in state issues, but fail to see that federal court interfernce in state lawmaking is the worst kind of anti-Constitutional and anti-democratic mucking up of our legal system there is.
No inconsistency at all. I told you what my standard was: When the rights of individuals are in question, the federal courts must step in. The RR cares not a bit about rights, but want the federal government to step in when the culture or particular moral values are involved. That is not their job. The whole purpose of the 14th Amendment was to ensure that states protected the rights of all of its citizens, not just the white Christian citizens.
So you dont like the Boy Scouts? If scouts do things for sponsors, schools should sponsor them.
I said that where? I am a former cubmaster, assistant scoutmaster, commissioner, and long time committee chair for the scout troop in our area. Read what I said: If the school will not permit the troop to meet there, fine (as in I don't care), because its the school that loses.
So far, you are right, yet we cannot trust courts to do the right thing and it takes only one bad ruling to destroy traditional marriage.
Wrong. It takes three. District court, circuit court and finally USSC. And in the USSC, we will have access to the arguments. From that point on, it will be several months before a decision, sufficient time for a constitutional amendment. But none alive today will ever see that.
Simply because a legal position has no merit in law, doesnt mean a court won't rule that way.
Of course not. Just look at the 9th Circuit. The vast majority of their decisions that are appealed to the USSC are reversed. Yet in one decision, they have indicated that they believe a state has a legitimate and compelling interest in protecting marriage.
The only way to know this is unnecessary is to get to a position where Massachusetts' gay marriage law is rolled back.
Nope. That is for the good people of Massachusetts to resolve. I have little doubt that one day, some rogue district court is going to rule that capitalism is somehow harming the masses. Should we now push for a constitutional amendment protecting capitalism?
You may be confusing the 5th Amendment with the 14th Amendment. Here is the 14th take on "due process":
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
If a law was passed which has the effect of depriving that individual of some right or perceived right, without his having the benefit of challenging that law, he has a due process claim.
There are many bad laws out there. Only some of them are unconstitutional. CT birth control law at the time of Griswold was a useless law, but that didn't make it unconstitutional IMHO.
No, all bad laws are not necessarily unconstitutional. Those however, that deprive a person of his rights such as privacy, due process or equal protection of the law, without a compelling state interest most likely are.
Yet every liberal who supports the existence of the FDA is admitting a state interest in withholding medicine, and if not medicine, why not birth control whic his also subject to FDA control.
There has been shown to be a compelling state interest in the FDA, as that has been challenged. But the interest is in safeguarding the populace from bad medicines and other substances which the populace may not have sufficient information to make an informed decision. It exists under the commerce clause. A state does not have a compelling interest in withholding something for religious or moral reasons. If it can link to the general health, it probably can make a case.
Most birth control requires a prescription, a state-regulated mechanism.
Because of its potential for abuse or harm it is regulated by prescription, which does not fail the above test.
It is a curious thing that abortion clinics resist mightily the same level of scrutiny and regulation that hospitals are subject to.
I agree with that. I recall the clinic that O'Reilly has been looking into that refuses to release records of minors even though rape is the issue and can be substantiated by the records. Even a hospital must report a gunshot or abuse victim. Abortion clinics do not.
The 4th Amendment does not use the word privacy, you are correct. Justice Brandeis however, would disagree with you that it had nothing to do with the 4th Amendment. According to Brandeis, the founders in the context of preventing government intrusion into personal life conferred "the right to be let alone the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment."
To be sure, as you said, the 1960s began a judicial recognition of this right. After all, without a privacy right, how can one pursue happiness, one of the unalienable rights.
Yet the same state legislators that passed these bill of rights laws in the 1790s would make sodomy a capital offense and forbid adultery.
They also permitted and even participated in the ownership of slaves, prevented women from voting, and in spite of the Constitutional restrictions, recognized and practiced religious tests. So that doesn't make any of those right. And as strange as it seems, there are still 21 states that have sodomy laws on the books!
I and most conservatives don't particularly cherish 'privacy' as a right, since the real right is about keeping Government limited and 'privacy' doesnt directly implicate what Government can't do.
Most conservatives who don't cherish privacy are associated with the RR, because they believe that Lawrence v: Texas was a horrible decision. They believe that only certain people should have privacy. If they can break through the privacy rights issue, they can impose all sorts of moral restrictions on people. I'm not sure what concerns with privacy actual conservatives would have with it though.
If you have a right to do something, you have the right to do it out in the OPEN
I have a right to run around my house naked, but not out in the open. I have a right to engage in sex in my home, but not out in the open.
if you are doing something criminal, doing it in private doesnt make it legal.
Absolutely, privacy does not protect illegal activities, but the 4th Amendment does require a probable cause invasion of that privacy.
"Should we stop the Govt from regulating consensual commercial intercourse between consenting adults?" It's better to chuck the whole construction and terminology altogether and speak of what Govt imposition we are supposed to be free *from* under this or any other right.
I don't find it all that confusing. No law should be on the books that has a purpose other than the proper regulation and protection of a free society. Most laws protect third parties. When a law, however, has as its focus regulating culture, morals or freedoms which do not regulate actions that may harm someone else they ought to be questioned. And no law should impose restrictions on any group without due process, and without a compelling interest. But there remain many laws on the books which violate these principles, such as blue laws.
Good Brandeis quote, but it doesn't negate my point.
I'd simply point out that none of the line of court decisions - Griswold, Roe, etc. - that apply the oxymoronic 'substantive due process' actually declare a real, solid, definable 'right to privacy', nor is it used in the legal argument directly. They only use the 4th amendment by way of analogy, and none of the rulings spouting off about 'right to privacy' say (nor could they say) that the 4th amendment is violated. It's merely verbal camoflague for the assertion of rights that are not actually 'privacy' but something else.
There's a discussion on this in this interview with Bork:
http://www.hoover.org/publications/uk/2940316.html
Besides, I'd go back to the point where if it is a 'privacy right' to use birth control, then why isn't the FDA and the USDA and for that matter baker's working hours unconstitutional?
"Most conservatives who don't cherish privacy are associated with the RR, because they believe that Lawrence v: Texas was a horrible decision."
Any USSC court ruling not grounded in sound constitutional and legal reasoning is a bad decision, and Lawrence v Texas fits that category. It is unsound law, wrongly decided because the court bent legal strictures to make a 'landmark' ruling for a favored decision (in other words verdict first, evidence / ruling follows). See:
http://www.law.cornell.edu/supct/html/02-102.ZD.html
Scalia dissent:
"State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers validation of laws based on moral choices. Every single one of these laws is called into question by todays decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. See ante, at 11 (noting an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex (emphasis added)). The impossibility of distinguishing homosexuality from other traditional morals offenses is precisely why Bowers rejected the rational-basis challenge. The law, it said, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed. 478 U.S., at 196.2 ...
The matters appropriate for this Courts resolution are only three: Texass 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."
Justice Thomas:
"I join Justice Scalias dissenting opinion. I write separately to note that the law before the Court today is
uncommonly silly. Griswold v. Connecticut, 381 U.S. 479, 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.
Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to decide cases agreeably to the Constitution and laws of the United States. Id., at 530. 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."
http://www.law.cornell.edu/supct/html/02-102.ZD1.html
"There are many bad laws out there. Only some of them are unconstitutional. CT birth control law at the time of Griswold was a useless law, but that didn't make it unconstitutional IMHO."
"No, all bad laws are not necessarily unconstitutional. Those however, that deprive a person of his rights such as privacy, due process or equal protection of the law, without a compelling state interest most likely are."
I have noted/argued that:
1. There is no general 'blank-check' right to privacy in the constitution.
2. birth control laws had no equal protection issues, nor due process issues.
3. "compelling state interest" is wrong level of judicial review for such laws. Properly, it would be a rational-basis test.
"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.
Much as I would prefer libertarian style government, facts and history dictate an acknowledgement that the Constitution does *NOT* require that of states, even with the 9th and 14th amendments.
You are attempting to assert a philosophical point about what states ought do (ought not do) as a Cosntitutional one, and failing.
"They believe that only certain people should have privacy. If they can break through the privacy rights issue, they can impose all sorts of moral restrictions on people."
First, as shown alrady, the only real privacy right is 4th amendment and I dont see the RR particularly positioned on it.
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.
Basing law on moral values at least posits a law to defend against a perceived harm that is fundamental, unlike much of the law today, which is nothing more than a rentier attempt to take from peter to pay paul in many different ways.
"Yet the same state legislators that passed these bill of rights laws in the 1790s would make sodomy a capital offense and forbid adultery."
"They also permitted and even participated in the ownership of slaves, prevented women from voting, and in spite of the Constitutional restrictions, recognized and practiced religious tests. So that doesn't make any of those right. And as strange as it seems, there are still 21 states that have sodomy laws on the books!"
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. 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.
"I have little doubt that one day, some rogue district court is going to rule that capitalism is somehow harming the masses. Should we now push for a constitutional amendment protecting capitalism?"
H*LL YES. We dont need the courts to destroy capitalism now that the new Democratic Congress will do it instead.
National Taxpayer Bill of Rights would be a great idea.
"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.
If you want to defend Federalism and democratic due process on one hand, you ought not support judical rulings that have undermined them.
Yes, politics is about compromise - in a democracy - because you need a majority coalition to 'win'. In other forms of govt, its about guns and raw power, not compromise.
Fundamentally, politics is about how we live together. And one needs fundamental convictions and principle to form a framework for how to act in the political realm.
Freedom is one such fundamental conviction and principle. Ought we remove freedom from debate in the political arena since it is a principle and not subject to compromise?
I would hope NOT!
Thus, your statements that elevate compromise above principle have some element of illogic.
I believe what many observe that is wrong in the conservative ranks is that conviction has override a sense of strategic understanding or common sense about what is achievable and what is not.
"I hope you can see that convictions and compromise are not compatible. This is why I said what I said."
It is actually those who believe that - who choose *only* compromise or who choose *only* conviction - who are causing the most trouble. The best leaders understand the 'ying-yang' principle of have core principles/convictions but being flexible in applying them, asserting them and advancing them - "choose your battles".
A far better way to consider things is like the difference between a brittle tree, a flexible tree, and a tumbleweed.
When the wind blows:
- the brittle tree (conviction) breaks
- the tumbleweed (compromise) blows away
- the flexible tree bend (compromise) with the wind, but stays attached to firm roots (conviction) and in the end does not move, but maintains its position
We must be like the flexible tree.
The point I'd try to make about the 4th Amendment is that it reflects that such a right exists, or as I said before, there would be no need for it, and that the Amendment states the conditions upon which one's "privacy" or whatever you would like to call it can be breached. From that point on, if we recognize that the government cannot intrude on this "privacy" except through probable cause, warrant, etc; then it is only a small step further to conclude that such a "right" stands on its own, and deserves protection from other types of governmental intrusions including laws that serve no other purpose than to prevent private activities that harm no one.
That is how I feel about privacy, and that you don't is fine. But as I said earlier, just as with all of the other rights, there are limitations and privacy does not protect otherwise illegal activities.
Besides, I'd go back to the point where if it is a 'privacy right' to use birth control, then why isn't the FDA and the USDA and for that matter baker's working hours unconstitutional?
Good question. My answer would be as before, that the FDA is established for the protection of the population as a whole, and the fact that some birth control chemicals are controlled substances requiring a prescription does not infringe on the privacy rights of individuals by making it illegal to use them in the privacy of your home. As for the baker, I'm not sure why privacy would extend to the public arena where health and safety laws and regulations are designed to protect workers and consumers. They may go too far in many areas, but as long as they do not discriminate, I cannot see any constitutional issues with them. As you can now see, I am not a Libertarian, or I would have condemned such laws.
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