Posted on 08/11/2003 11:45:05 AM PDT by jmc813
It’s been a tough summer for social conservatives, thanks to our federal courts. From “gay rights” to affirmative action to Boy Scouts to the Ten Commandments, federal courts recently have issued rulings that conflict with both the Constitution and overwhelming public sentiment. Conservatives and libertarians who once viewed the judiciary as the final bulwark against government tyranny must now accept that no branch of government even remotely performs its constitutional role.
The practice of judicial activism- legislating from the bench- is now standard for many federal judges. They dismiss the doctrine of strict construction as hopelessly outdated, instead treating the Constitution as fluid and malleable to create a desired outcome in any given case. For judges who see themselves as social activists, their vision of justice is more important than the letter of the laws they are sworn to interpret and uphold. With the federal judiciary focused more on promoting a social agenda than upholding the rule of law, Americans find themselves increasingly governed by men they did not elect and cannot remove from office.
Consider the Lawrence case decided by the Supreme Court in June. The Court determined that Texas had no right to establish its own standards for private sexual conduct, because gay sodomy is somehow protected under the 14th amendment “right to privacy.” Ridiculous as sodomy laws may be, there clearly is no right to privacy nor sodomy found anywhere in the Constitution. There are, however, states’ rights- rights plainly affirmed in the Ninth and Tenth amendments. Under those amendments, the State of Texas has the right to decide for itself how to regulate social matters like sex, using its own local standards. But rather than applying the real Constitution and declining jurisdiction over a properly state matter, the Court decided to apply the imaginary Constitution and impose its vision on the people of Texas.
Similarly, a federal court judge in San Diego recently ordered that city to evict the Boy Scouts from a camp they have run in a city park since the 1950s. A gay couple, with help from the ACLU, sued the city claiming the Scouts’ presence was a violation of the “separation of church and state.” The judge agreed, ruling that the Scouts are in essence a religious organization because they mention God in their recited oath. Never mind that the land, once privately owned, had been donated to the city for the express purpose of establishing a Scout camp. Never mind that the Scouts have made millions of dollars worth of improvements to the land. The real tragedy is that our founders did not intend a separation of church and state, and never envisioned a rigidly secular public life for America. They simply wanted to prevent Congress from establishing a state religion, as England had. The First amendment says “Congress shall make no law”- a phrase that cannot possibly be interpreted to apply to the city of San Diego. But the phony activist “separation” doctrine leads to perverse outcomes like the eviction of Boy Scouts from city parks.
These are but two recent examples. There are many more, including the case of Alabama Chief Justice Roy Moore, who was ordered by a federal court to remove a Ten Commandments monument from Alabama courthouse property.
The political left increasingly uses the federal judiciary to do in court what it cannot do at the ballot box: advance an activist, secular, multicultural political agenda of which most Americans disapprove. This is why federal legal precedents in so many areas do not reflect the consensus of either federal or state legislators. Whether it’s gun rights, abortion, taxes, racial quotas, environmental regulations, gay marriage, or religion, federal jurists are way out of touch with the American people. As a society we should reconsider the wisdom of lifetime tenure for federal judges, while Congress and the President should remember that the Supreme Court is supreme only over other federal courts- not over the other branches of government. It’s time for the executive and legislative branches to show some backbone, appoint judges who follow the Constitution, and remove those who do not.
If this means the judiciary's doing its duty to prevent legislatures at any level from diminishing the peoples' individual right to liberty of conscience and action with the sole caveat that they not infringe the equal rights of others, then I am for it and Mr. Paul is mistaken regarding the broad expanse of our freedoms and their several watchdogs.
Among the many founding lights who instruct us in this we may take Hamilton in Fed #78:
"There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid."
...
"If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body."
...
"This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community."
1996 was Dole's schism campaign.
And there's every expectation that a legislature's job is to debate ANYTHING that is a potential danger and legislate those things that seem so imminently dangerous that a majority agrees is dangerous.
And if you have an incurable disease that is passed sexually, then what you do sexually is of interest to the rest of us.
You also do not have the right to discharge a firearm in a backyard if you live in a subdivison with houses nearby.
Same principle.
Paul is a consistent libertarian with a grasp of the Constituion, something the libertines simply loath when it is coincident with their ideology and hate when it isn't.
As it applies to those relations only, the laws don't exist for the protection of children that might result, but because it regards such conduct as abominable in and of itself - despite the fact that the very same behavior is perfectly legal for unrelated persons. So by the criteria you've laid down, the law in question is guilty of "inequality".
By the way, that link you provided is not to a list of incest laws, but of marriage laws. I would wager a large amount that in all the states, sexual relations between family members is illegal, regardless of fertility.
1. The legislature has the burden to consider/discuss any behavior.
2. The legislature has the burden to legislate ONLY on those that have a clear, imminent impact on the community.
Defending against an attack on the community, whether from Islamic Terrorists, Chinese missiles, or disease nurturing behavior, is the primary function of government.
Not the same thing, incest laws exist to stop the possible creation of genetically defective offspring.
It is the same thing. Allowing genetically defective people to procreate (especially if they have the same defect) greatly increases the likelihood of genetically defective children. But there's no law against it that I'm aware of.
They detailed their agreement on paper, and went through with it.
There are no laws in England against that.
There is no possible way in a society to enact laws to cover every specific "what if" that you can come up with, and still be considered a "free society", and we should not be governed in accordance to the lowest possibility, or to avoid the least likely circumstance.
You are down to trying to justify the violation of the constitutional tights of millions based on some far-fetched "what if" about an infinitesimal portion of th population.
No thanks.
Would you mind substantiating any of these generalizations you keep throwing around?
That's not the whole story, and like the rest of your posts, far from the truth. Laws against parent/child incest are set in place to avoid the very real possibility of sexual abuse prior to the age of consent as well as the reasons you listed above.
Come back to me when you can base your argument on something other than your imagination.
So it's not considered illegal when the child is above the age of consent? And how do you explain laws against sibling incest?
Yes, it's a scholarly method of inquiry: When someone lays down a principle in one area, he should be asked how it applies in other areas. If he can't come up with a solid answer, it's usually a good sign that he hasn't thought his principle through as far as he should have.
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