'Scalia Constitution' is scary

Atlanta Journal-Constitution ^ | 6/30/03 | Jay Bookman

[HurkinMcGurkin]

All drugs, including heroin?

Yes

Buying child pornography?

The creation of child porography violates the right of the child, thus creation, purchase or posssession of such can legitimately be called crimes.

Is sex with 14-year-olds consensual in your book?

That really depends. I personally, would set the age limit for marriage and sex at 16, but I could see why such ages were lower in the past. With an age limit of 16, I would support laws forbidding persons over the age of 16 having sex with persons under the age of 16.

[bvw]

Paul Johnson discusses the religious contention issues very well in his "A History of the American People". Yes, We, the People, had honest, genuine, well-founded concerns about this aspect -- religious freedom -- due to actual events and actions that occurred during the colonial era.

You see there was a Quaker woman, Mary Dyer:

In 1658, religious intolerance in Boston reached a horrible height, when a law was passed banishing Quakers under "pain of death." When Mary Dyer learned that two Quakers of her acquaintance were jailed in Boston, she went to visit them in 1659 - and was herself imprisoned (probably by design -- Dyer was very pro-active). That September, Mary Dyer and the two other Friends were released, after being assured that they would be executed if they returned. Nevertheless - only a few weeks later - an undaunted Mary Dyer, in the company of other Friends, returned to Boston resolved to "look the bloody laws in the face."

Imprisoned once again, Mary Dyer saw her two fellow Quakers hung to the death. While herself bound and with the rope around her neck she received a last-minute reprieve (which was almost certainly prearranged). Against her wishes, Mary Dyer returned to Rhode Island; but soon came back to Boston - knowing the inevitability of her fate, but determined to give up her life in order to gain the "repeal of that wicked law".

On June 1, 1660, she was led once more to the scaffold and executed by hanging - refusing to repent, holding fast to her beliefs to the very end.

[HurkinMcGurkin]

Given the faulty headline, I understand that you may have thought something occurred that hasn't. I don't fault you as journalists misrepresent news with headlines quite often. No hard feelings.

[sweetliberty]

"How are these idiots so successful at reversing the meanings of our Constitution?"

An argument could be made that it isn't those who are doing the reversing that are idiots. I think it likely that they know exactly what they're doing. It seems to me that the real idiots are those who know better and do nothing to challenge it, in effect, validating their efforts to nullify the Constitution.

[GraniteStateConservative]

Morality isn't a compelling interest in denying personal liberty. Morality changes with the wind. Murder is illegal not because it's written on the 10 Commandments, but because it unfairly harms the personal liberty of others. I suppose there are conservatives here at FR who would support state laws ordering obedience to the 10 Commandments and Scalia would mostly sit idly by.

'You shall not take the name of the LORD your God in vain.'

Stub your toe on the ottoman while going to the bathroom at night and the surveillance cameras installed in your home by the state government will pick up the violation and punish you as they see fit.

During oral arguments, Justice Breyer asks if Texas could ban the telling of "really serious lies" at the dinner table, and Harris County, TX DA Rosenthal almost says, "yes." He's interrupted by Scalia who offers a fallacy of logic-- Appeal to Tradition: "Don't you think what laws a state can constitutionally pass has something to do with the sorts of laws that have a long tradition of being passed?" Regardless of whether the Court has chosen this fallacy to rule on cases, should we applaud it?

[puroresu]

No, I don't want a constitution with a million amendments. I'm content to leave things to the states. I don't want a federal pro-sodomy amendment or a federal anti-sodomy amendment. I don't want judicial activism on the issue either.

However, the courts, by their arrogant aggression against the Constitution, are backing people up against the wall. The state Constitutions in both Alaska & Hawaii now contain amendments limiting marriage to one man & one woman. Those amendments should have been unnecessary, but "liberal" state judges in both states "discovered" a right of gays to marry hidden in the various auras and penumbras (or whatever) surrounding their state Constitutions. The voters in both states then had two choices: 1) submit to judicial tyranny by permitting judges to read whatever they want into the Constitution anytime they feel an urge to revolutionize society or 2) amend the Constitution to stop the judicial aggression into the legislative sphere in question.

The federal courts are arrogantly shoving us around in the same way via Roe, the sodomy ruling, and other decisions.

[HurkinMcGurkin]

The question now is what other forms of sexual behavior is also treated with the same equal protection and right to privacy?

Let me see - if they are private acts, and they aren't forced or coerced, and the participants are adults, then they are private. If they occurr in public, they are acts of indecency. Pretty easy.

For example, should mastabatory sex receive the same privacy protection and equal treatment for sentencing for public sex?

That doesn't even make sense. Not even close. Private masturbation vs public sex? Get real/

How about petting?

Where? In public, or private?

Multiple partners?

Multiple partners in public falls under the same category as any sex in public.

Does the gender of the participants matter?

Matter for what? Public acts? No.

How about non-blood familial relationships?

You mean sex between two people? Private? Public?

Are these all equal sex acts under the law, or only when distinguishing between hetero and homo?

There's one issue, and its not hetero vs homo. Its private versus public.

[GraniteStateConservative]

My point is that it is easy to read into the Constitution, the Declaration and the very nature of our form of government a right to be Jewish or a Quaker. I wasn't suggesting that religious persecution didn't take place. I'm aware that it did.

Without the 1st amendment, Mary could be a Quaker under a reasonable reading of our founding documents-- regardless of how well the Founders and subsequent generations followed the intent of the document. We shouldn't follow the intent of the politicians who made the document as expressed in their ability to follow its words. Politicians are politicians. Follow the will of the documents that say we have a presumed right to personal liberty that can only be abridged if the government has a valid reason to do so.

[mrsmith]

Kudos!

I had the very same thought when I used "idiots"- that they were actually only devious.

But I was so struck that anyone doesn't know- or conveniently forgets- that the Bill of Rights was demanded as a limit on the new government.
It was such an important demand that we probably wouldn't have had the Constitution without it. That fact must still be taught in elementary, junior, high school and college.
Only an idiot could not be aware of it's meaning.

[sweetliberty]

"Only an idiot could not be aware of it's meaning."

Sadly, our schools are producing many of them.

[Dogrobber]

You ask what the 4th Amendment does? It does what it says it does. It prohibits unreasonable searches and seizures. It does not have a d#(& thing to do about personal privacy.

The Constitution is a written document made of words that have meaning. What the Court has done is to "read" into those words meanings which cannot be supported by any competent construction of the document. When this is done as a general practice then none of us are safe from Judges who have decided to extend their ruling power further.

These issues, abortion and homosexuality, are issues for the body politic to decide, not elitist judges. Once set in Constitutional concrete there can be no changing these decisions and opponents have only two choices; amending the Constitution to remove these areas from the Court's power to decide or rebellion.

I hope that a significant number of people elect for amendment, civil war is a nasty habit to get into and we have already had one.

[Tares]

So in your mind, we needed the first amendment or else states could outlaw Jews?

The founders thought we needed it. They found it so important to note the right to religious freedom that they prohibited Congress from making any law respecting an establishment of religion.

You don't believe you can read a right to be Jewish just out of the rights to personal liberty we are given by God-- noted by our founders?

You would have a difficult time arguing that the founders thought the act of sodomy is a God given right on par with the right to be Jewish. Of course, they also did not give the Federal gov't the power to act concerning sodomy, thus leaving it to the States to address this issue as they see fit.

P.S. I'm mighty glad the founders ratified the first amendment (and later, amendment 14, section 1), and didn't leave it soley to the minds of you or me or Supreme Court Justices to opine on our religious rights. Ah, the beauty of the rule of law over the rule of men.

[optimistically_conservative]

Let me see - if they are private acts, and they aren't forced or coerced, and the participants are adults, then they are private. If they occurr in public, they are acts of indecency. Pretty easy.

If only legislating was so easy ...

---

Kansas Statutes Annotated

Volume No. 2A

Article 35.-SEX OFFENSES

Article 36.-CRIMES AFFECTING FAMILY RELATIONSHIPS AND CHILDREN

To see the legal definition of an offense and the prescribed punishment, click on the name of the offense. Note that common terms you may think you are familiar with have very different legal definitions in different states. For example, the definition of sodomy may or may not include oral sex, bestiality, or heterosexual activity depending on the state.

---

Definitions.

Rape.

Indecent Liberties With A Child.

Aggravated Indecent Liberties With A Child.

Criminal Sodomy.

Aggravated Criminal Sodomy.

Adultery.

Lewd And Lascivious Behavior.

Enticement Of A Child.

Indecent Solicitation Of A Child.

Aggravated Indecent Solicitation Of A Child.

Prostitution.

Promoting Prostitution.

Habitually Promoting Prostitution.

Patronizing A Prostitute.

Sexual Exploitation Of A Child.

Sexual Battery.

Aggravated Sexual Battery.

Promoting Sexual Performance By A Minor.

Evidence Of Previous Sexual Conduct In Prosecutions For Sex Offenses

Bigamy.

Incest.

Aggravated incest.

[irish_links]

"...Seems like it would easily fall under those rights the 9th ammendment (the forgotten ammendment) says are retained by the people." The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."...."

The IXth protects the people from having rights taken away by the federal government, even though such rights were not expressly stated in the Constitution and the BoR. It does not give the Supreme Court the power to invent new rights out of whole clothe and then obligate states to recognize them against their will.

[CyberCowboy777]

It is a cart before the horse issue.

If the federal government is small and limited in scope of duty no right to privacy is needed.

[CyberCowboy777]

I think the real point is that a small limited federal government has no power to intrude in private matters.

If the Federal Government was as small and limited in scope of duty as intended then no pronouncement of a right to privacy is needed.

[L.N. Smithee]

In his conclusion, Scalia accused the court of "tak[ing] sides in the culture wars, departing from its role of assuring, as a neutral observer, that the democratic rules of engagement are observed."

That's telling language. If we are indeed engaged in a culture war, Scalia's side is losing and he knows it. In his desperation, he and others wish to enlist the power of government as a weapon to repress a minority he despises.

Holy cow...I thought journalists were supposed to be able to read!

Scalia criticizes the other justices for "tak[ing] sides in the culture wars..." and then Bookman says "Scalia's side is losing"? Hey, pinhead, he's NOT TAKING SIDES!

"Telling language"? This is the sort of phrase weak writers use when they need to bridge uncooperative facts and quotes so they will lend credence to a pre-conceived conclusion, like when liberals accuse conservatives of using "code words" instead of admitting they are bigots.

Only in this man's dreams does the accurate Scalia quote in the first paragraph translate into the conclusion he draws in the following paragraph!

[irish_links]

"...There is no good reason for the government to get involved. Non-commercial sodomy by consenting adults of heterosexual or homosexual persuasion-- by itself-- is of no compelling interest of the state...."

The above may be how the flinty folks of the Granite State think. Good for them for their tolerance and open minds. Unfortunately, that is not how the people of Texas viewed the proscribed behavior in question. Quaintly, they think the behavior in question is destructive to things they hold near and dear: family, community and the participants themselves.

Irrespective of how the folks in the Granite State feel, Texans have the authority to proscribe said behavior. The SCOTUS, conversely, does not have the Constitutional authority to tell them otherwise. When it did it overstepped its Constitutional authority, thereby threatening the freedom of all Americans.

[af_vet_rr]

Irrespective of how the folks in the Granite State feel, Texans have the authority to proscribe said behavior. The SCOTUS, conversely, does not have the Constitutional authority to tell them otherwise. When it did it overstepped its Constitutional authority, thereby threatening the freedom of all Americans.

Had the Texas law applied to heterosexual sodomy (both oral and anal) as well as homosexual, it probably would have been upheld and this would be a moot discussin. As it was, it dealt only with homosexuals and it basically left a loophole, and SCOTUS jumped on it.