Lawrence Behind Bars: Conservatives vs. privacy.

National Review ^ | July 7, 2003 | Deroy Murdock

[Pietro]

sorry I'm getting back to you so late but I've been busy etc, etc.

I've also been trying to source the comment about prior police visits to the perps home which I heard on a talk radio show (Doug Hoerth in Pgh). I can't find anything other than a vague mention of a weapons charge against one of the individuals, so I'll step down from that.

But, my two points still stand 1) had they any humility they would have stopped their sexual activity when strangers entered the room and 2)there is a strong likelihood that they wanted to be caught in order to challenge the law.

This second point is referenced in a footnote in the amicus brief filed by Shackleford for the Texas state representatives:

"2 It is rare indeed for an “anonymous” caller making a false report to conveniently wait for the police to show them directly to the room where the anal sex was occurring, knowing his identity and the false report would be discovered. These facts strongly suggest that the men engaging in anal sex desired to be “caught” by the police for the very purpose of challenging this law. It appears that petitioners’ privacy argument lacks factual merit. Pg 17 Footnote 2 "

This case has been presented as the "state" bursting, uninvited, into the privacy of a citizen's home, when in fact the entry into that home was a proper response of law enforcement acting upon a reported threat to safety.

But then that is typical of liberal activism; lies don't matter when there's an agenda at stake.

[Pietro]

"Do thry?"

You're equating homosexuality w/ heterosexuality. I don't.

Frankly, I don't care what homosexuals do, but I'm sick beyond description of their parading their perversions and pushing an agenda that is literally poisonous to individuals as well as the society at large.

As a libertarian you no doubt chafe at the thought that a society should have moral standards, but are you really prepared to live in a completely amoral society? And if not what moral boundries would you hold to?

Activists are enthusiastically in favor of these manufactured petty rights like "privacy" even as the true and substantial rights, unalienable and guaranteed, are consistently eroded.

The right to bear arms, freedom of religion, freedom of speech, and freedom of assembly are all under constant attack. The USSC runs roughshod over federalism and separation of powers and the defenders of "liberty" applaud.

Now we're all free to practice sodomy; oh happy day. You'll excuse me if I find your celebration pathetic.

[RJCogburn]

Sorry for being unable to spell 'they'.

Beyond that, you misunderstand my ideas.

You're equating homosexuality w/ heterosexuality.

That is not so. Anybody, libertarian to the tightest social conservative can tell the difference. I would, however, say they deserve equal treatment under the law.

I'm sick beyond description of their parading their perversions.

I don't like it either.

As a libertarian you no doubt chafe at the thought that a society should have moral standards

Well it is early in the day, but that is the stupidest, most idiotic claim I have read today. As a matter of fact really stupid, really idiotic. Naturally society should have moral standards, but I don't agree we ought to have a taliban, or talibornagain imposition enforced by force of law.

[Pietro]

"Naturally society should have moral standards..."

well, pardon my ignorance, I mean really really.

But what standards of morals would those be? The standards under discussion have been in place for millenium, if you intend to relax those please identify some new (lower) threshold. Preferably one that is a little more specific than "do as thou will".

[bvw]

"our Supreme's should be reduced to the status of Pips."

"One day—it was in March, 1883—a letter with a foreign stamp lay upon the table in front of the colonel's plate. It was not a common thing for him to receive letters, for his bills were all paid in ready money, and he had no friends of any sort. 'From India!' said he as he took it up, 'Pondicherry postmark! What can this be?' Opening it hurriedly, out there jumped five little dried orange pips, which pattered down upon his plate. I began to laugh at this, but the laugh was struck from my lips at the sight of his face. His lip had fallen, his eyes were protruding, his skin the color of putty, and he glared at the envelope which he still held in his trembling hand, 'K. K. K.!' he shrieked, and then, 'My God, my God, my sins have overtaken me!'

"'What is it, uncle?' I cried. "'Death,' said he, and rising from the table he retired to his room, leaving me palpitating with horror. I took up the envelope and saw scrawled in red ink upon the inner flap, just above the gum, the letter K three times repeated. There was nothing else save the five dried pips. What could be the reason of his overpowering terror? I left the breakfast-table, and as I ascended the stair I met him coming down with an old rusty key, which must have belonged to the attic, in one hand, and a small brass box, like a cashbox, in the other.

"'They may do what they like, but I'll checkmate them still,' said he with an oath. 'Tell Mary that I shall want a fire in my room today, and send down to Fordham, the Horsham lawyer.'

(Source: "THE FIVE ORANGE PIPS", The Adventures of Sherlock Holmes by Sir Arthur Conan Doyle )

[bvw]

The Pips:

With Gladys Knight and some unnamed Personality

[bvw]

"to the status of Pips":

Magical Youth International

[RJCogburn]

I don't have a problem with the moral standards, in general, that are in place now. The coerced adherence to those standards by those who choose not to follow them and use neither force nor fraud on others in their 'immoral' actions is another matter. Recall, my original post was

[Do social conservatives sincerely applaud a law that would permit the police to come in, say, once a week and re-arrest Lawrence and Garner each time the cops caught them engaged in sodomy while, by the way, leaving unmolested the heterosexual residents of the very same building who happen to enjoy non-procreative, genital-anal sex?

Do they?]

So, are you applauding?

[RichGuy]

What the courts used to believe is that if a right was not enumerated in the constitution then it was left to the states and the people. Here is how Justice Thomas phrased it in his dissent, "If I were a member of the Texas legislature, I would vote to repeal it." But he saw the courts responsibility as being to "decide cases agreeably to the Constitution and laws of the United States." I am simply agreeing with his assessment.

If you find state laws governing actions not specifically allowed or forbidden in the constitution to be offensive, the remedy is at the state level. The constitution does not, in most cases, define who (either the state or the individual) has retained rights not usurped by the federal government. Therefore, in order to play at all in this issue the justices had to invent the right to privacy.

[Pietro]

"The coerced adherence to those standards by those who choose not to follow them and use neither force nor fraud on others in their 'immoral' actions is another matter."

Holy macaroni Batman, what the hell does that mean?

[tahiti]

I know the following article is a "long read" but the author has been my mentor on the subject of constitutional law and addresses your remarks about unenumerated rights, brilliantely, logically, and consistent with what the constitution actually says.

http://www.freerepublic.com/focus/f-news/943979/posts

[RichGuy]

That is a long read, but very interesting.

My problem with this read on the court is that it ignores the tenth ammendment which states that powers not delegated through the constitution to the federal government stay with the state and the people. The idea behind this was to limit the power of the federal government and leave the predominance of power with the states. Every time the federal supreme court over rules the state on an issue that is not enumerated in the powers portion of the constitution, what they are doing is unconstitutional.

Whether you are talking the right to privacy or the right to liberty, the power to make the decision was not delegated to the feds in our constitution. If the state legislature errs on such an issue, the state supreme court should rule. then the people and their state legislature should take action. Appealing state issues to the federal supreme court is what undermines the constitution.

[tahiti]

"Every time the federal supreme court over rules the state on an issue that is not enumerated in the powers portion of the constitution,"

I think I see why you and I are not on the same page.

Yes, there are "enumerated" powers that our federal government is bound and limited by and they are not to be expanded by the Supreme Court. (For example, the "commerce clause" which it's jurisdiction was expanded by the SC in 1942 far beyond what the founding fathers intended. I am sure we would agree on that.)

But the Bill of Rights has both enumerated and unenumerated rights in which it is meant to protect and enhance.

Should we not be expanding our liberties? Should we not have to ask for permission to expand our liberties? Should laws not be "reviewed" by our Supreme Court under a presumption of liberty versus a presumption of constitutionality?

The 10th amendments significance as the repository for "state" power was diminished by th 14th amendment, which is the proper and constitutional procedure to diminish or deny enumerated powers.

[RichGuy]

I would not interpret anything in the 14th amendment as giving the US supreme court the option to overturn state laws. The 14th itself actually states "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States:" so we are back to having to define either homosexual activity or privacy as a privelege or immunity before the supremes can do what they have done.

I think we are in a loop that is common between people who believe that the constitution should control versus people who believe that the constitution as modified by supreme court rulings should control. I believe that we ought to take the words of the constitution liteerally.

[tahiti]

"I believe that we ought to take the words of the constitution liteerally."

I could not agree any more enthusiastically then to say I agree 100% with your above statement.

That is why I am an unabashed advocate of the 9th amendment:

"The enumeration in the Constitution of certain rights, SHALL NOT be construed to DENY OR DISPARAGE others (rights) RETAINED BY THE PEOPLE."

There is absolutely no ambiguity in the meaning of the 9th amendment. Shall not, means shall not. Retained by the people means retained by the people. Not retained by the people, except those rights that federal or state governments want deny or disparage because that is what the majority of the citizen want.