'Scalia Constitution' is scary

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

[robertpaulsen]

One other thing. The Constitution of our Founding Fathers cited by the author did not include the 14th amendment (obviously) which applied much of the BOR to the states.

The U.S. Constitution was written to restrain the Federal government, not the states. The sodomy law was a state law, and our founding fathers would have ignored it.

[steve50]

The Constitution limits rights of government, it doesn't "grant" them to the people. It grants the government the right to legislate in very defined circumstances and clearly gives the means to expand the power of government to legislate only by Constitutional Amendment.

They've turned it on it's head. They wish us to believe that the only rights the people have are those expressly granted in the BOR and only under a changing(breathing) definition of Constitution, and that the power of government is unlimited.

We don't have more rights than the Constitution calls for. The people have more privileges than the Constitution allows the government to provide and the government has more authority than the Constitution allows.

[aristeides]

I largely agree with your posting. But I don't think you're right about the 14th Amendment not having the effect of banning slavery. The 13th Amendment was needed because the 13th came first, when the 14th Amendment was not yet even being considered. I think "nor shall any State deprive any person of life, liberty, or property without due process of law" would almost certainly be violated by a state's having a slave code.

[300winmag]

Search and seizure is the control. Illegal activity in private is not a right.

That's the way the case should have gone down. But the USSC cherry-picked the case, and then a "sharply divided" court (to use a liberal phrase) said the real problem was the people of that state still had this dumb law on their books.The court then declared all similar laws across the country unconstitutional. They used the "privacy clause" (which must exist only in the shadows of the emanations of the penumbra of the Constitution) to void disagreeable (to them) state laws.

The danger comes from activist Supreme Courts (you need only five activists on the bench) from using this new tool again. Did the police find untaxed cigarettes in the privacy of your home? Void all state taxes on tobacco. Find an unregistered machinegun in the privacy of your home? Void the National Firearms Act. Privacy of the home requires all laws that run afoul of it to be voided across the country.

Now I wouldn't mind having stupid tax and gun laws declared unconstitutional, but this new tool is just too dangerous to use. The Supreme Court has just announced that it can be bullied into finding new rights that please those with the loudest voices, which are the liberals. A hell of a way to run a railroad, or a court.

[aristeides]

The Supreme Court could easily have issued a narrow ruling overturning the conviction of the defendants in Lawrence. They could have declared that using evidence found in that kind of house invasion for a sex prosecution violated the right to privacy contained within the right to due process, or something along those lines. They did not. Obviously, they took the case because they wanted to issue a much broader ruling and to overrule Bowers. If proof were needed, Limon shows it.

[sweetliberty]

Justices Void Prison Term Given Gay Teenager in Kansas

I'm sure this is just the beginning. As well as early releases for homosexual assaults, look for rulings to go light on related crimes committed BY homosexuals, combined with stiffer penalties for crimes AGAINST homosexuals.

[puroresu]

Well, I guess we'll never know since the 13th was the first of the three reconstruction amendments to go through. We do know, though, that it took a constitutional amendment to end slavery. And we do know that the 14th didn't expand voting rights to blacks, and it took the 15th to do that. So the 14th was not even remotely intended to grant federal courts the power that "liberals" today claim.

By the way, I've enjoyed your posts on this subject. You know your legal history!

[solomangrundy]

So you're saying you only want to read or see things you agree with, that anything that even remotely disagrees with you should be banned or deleted. Sounds rather cowardly to me.

[nicollo]

I've asked this question before, and no proponent of an expansive 9th amendment has been able to answer it. Why did it take a constitutional amendment (the 19th) to give women federally encforced voting rights? This was decades AFTER the 9th amendment was ratified. And decades AFTER the 14th amendment was ratified.

It didn't. As with the 17th, by the time the 19th amendment was ratified just about every State already allowed women suffrage. States that hadn't yet gone there were on the way. The 19th amendment was not needed for the cause.

We have precisely the same dynamic with Lawrence: the constitutional fiat comes long after the fight was already won.

What kind of world would it be if, say, Texas denied women the vote and abortion, and sodomy was outlawed? I submit it'd be a far better world: let New York be New York, and Texas be Texas. Instead, the impatience and sick righteousness of reformers requires their laws be imposed upon everybody. (That goes for all extremes of politics).

Btw, I'm glad to see this debate heading away from "privacy." In the Scotus ruling, the catch was sodomy. Privacy was the bait.

[solomangrundy]

Is there a constitutional right to not be offended?

How about nearly ANY of the "reality" shows on the Fox network ("How To Lie and Cheat To Marry a Millionaire", "Fornication Island", "Let's Commit Adultery in Primetime!", etc.). Why do heterosexuals have to shove their illicit activities in everyone's face all the time?

[TheDon]

"But what two consenting adults do in the privacy of their own home is not even a legitimate interest of their neighbors, much less of the state."

I completely disagree. The state has a great interest in stopping the spread of AIDs via sodomy.

[aristeides]

It's interesting that Lawrence and Garner, the defendants in Lawrence, have criminal histories. Garner has been guilty of several assaults, including a number against a homosexual lover (the one whose phone call to the cops led to the home invasion that led to the Lawrence case.)

[puroresu]

I know most states already gave women the vote by the time the 19th amendment was ratified. What I was asking was why, if the 9th & 14th amendments give federal courts the power now claimed, those courts didn't simply order the states to give women the vote in, let's say, 1871?

The reason is that the 9th & 14th amendments do not grant the federal courts the power to interfere with states on matters where the Constitution is silent (female voting prior to the 19th amendment, sodomy, etc.). The states can set their own laws, or a federal Constitutional amendment can be ratified to give the federal courts such power in a given area (19th & female suffrage).

[Sloth]

"The Constitution just sets minimums," Scalia told an audience at John Carroll University on March 18. "Most of the rights that you enjoy go way beyond what the Constitution requires."

Sounds to me like the 9th Amendment.

[MissAmericanPie]

I agree with you, and my answer is to turn the channel. One can't turn the channel on the awful results of this unconstitutional ruling.

[GraniteStateConservative]

Just because the founders didn't apply the Constitution to all the people, it doesn't follow that that was the proper thing to do-- meaning SCOTUS today could properly apply it. Justice Curtis dissented ably in Scott v. Sanford and Justice Harlan in Plessy v. Ferguson-- both cases happened long after the deaths of the founders, but there is little doubt that Founders Era courts would have agreed with the majority in those cases, sadly. There's nothing to be ashamed of in suggesting that the Founders were imperfect in their application of a terrific document like the Constitution.

[sweetliberty]

Your post #60 is excellent. Too bad the courts aren't listening.

[GraniteStateConservative]

This law didn't prohibit by both sexes unprotected sex and the use of used needles-- the causes of most all STD cases.