Sorry, but its obligatory. ;-)
Posted on 10/26/2003 1:46:38 PM PST by moneyrunner
Sorry, but its obligatory. ;-)
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True enough. Conversationally, let me ask you, just how do you view the 19th Amendment? Do you see it as the Constitutionally-provided-for method of changing the Constitution based on the new wisdom of a changed society (Living Constitution)? Or, do you see it as the correction of an inherent flaw in the Constitution that was truly inconsistent with the otherwise brilliant writings and beliefs of the Framers? (Insert slavery corollary here.) I've always thought that our position as conservatives was to adopt the latter view. It's interesting. Imagine legislation mandating a threshold IQ in order to obtain a license to bear children. What would a liberal or conservative Supreme Court do with this? Even though I'm not certain of the best arguments that would be made on either side, my gut tells me the result would be obvious. How do you see it?
If we are not going to institutionalize the imbecilic, should we then try to prevent the increase in their number by sterilization? Is this such a horrible alternative, especially in view of the fact that the insane or imbecilic becomes a burden on society?
Yes, it is a horrible alternative. I agree with you that it is wrong to simply let the severely mentally ill to just roam the streets. That solves nothing. However, in the controlled setting of a state institution, there is a big difference between discouraging procreative conduct and state mandated surgical sterilization. I don't believe it is in the state's interest to prohibit procreation based solely on IQ. Truly, if liberals were the ones in charge of making such decisions concerning me, neither of my two beautiful children would have ever been born.
But I know that you said earlier that you may agree with me morally, but that you were looking at it from simply a perspective of what is Constitutionally permissible. Regardless of what is "permissible" Constitutionally, we are allowed to hold opinions as to what is right and what is Constitutional. Even as a strict constructionalist, I would hold that forced sterilization is akin to slavery and (prohibition of) women's sufferage in that in view of "all-time" logic and "all-time" senses of liberty (as opposed to flavor-of-the-week contemporary judicial activism), regardless of specific Amendment, these rights (liberty irrespective of race, voting irrespective of gender, procreation irrespective of IQ) are all rights that are consistent with the ideal of the Framer's vision of ordered liberty and personal freedom. As you noted, there is a social cost (slavery - loss of free labor, women's suffrage - elected Clinton twice, mentally disabled procreation - burden to state if parents are unable to care for child). Unfortunately, the current liberal "judiciary" has increasingly been making value judgments in direct contravention to public will. I think we need more Article III judges who believe in the Framer's vision of ordered liberty. I think that such a result would be approved of by a majority of Americans even if they don'y understand why.
I am very firm on this because I view the Constitution as a contract between the people and its government. It is not only wrong, but immoral, for one party to change the terms of a contract unilaterally. That is what happens when the Courts – a branch of the government – change the basic meaning of the Constitution to adjust it to “the new wisdom of a changed society.” I believe that the people can be trusted to realize appropriate changes in society and to change the Constitution appropriately. Advocates of judicial activism do not believe that the people are smart enough – or enlightened enough – to do what is right. Therefore, in their view, these changes have to be made by the enlightened few (“the best and the brightest?”)
Today, we can point to the issues of female suffrage and slavery as defects in the Constitution. I would argue that both issues were settled by amendments (plus – in one case a war) not by judicial fiat.
When I speak of idiots, I am not referring to dumb people or individuals with a sub-par IQ, I’m referring to those with a medical condition. People who are literally not able to take care of themselves. Wards of their relatives – or of the state.
Perhaps in our modern “changed” society the right to fornicate with anyone or everyone, anytime and anywhere, drunk or sober, married or single to anyone of any gender or of an indeterminate gender – as long as they have either an orifice or a member is found in the Constitution. I can’t find it in mine, but it may very well be there, lurking like a ghost in the penumbras and emanations.
But a case can be made, and should not be cavalierly dismissed, that if the public is going to support the result of these couplings through the public purse – filled by the forced extraction from your pocket and mine – that the public should have some say about the issue. And the proper venue for that are the peoples representatives, not those who sit above the fray wearing black robes and beyond the reach of the electorate.
Want a kid? Fine, find a partner, procreate, support the offspring until he, she or it can support himself or herself. That can be done be people who are high or low IQ. What I object to is the assumed “right” of two idiots (in the clearest medical use of the word) producing more idiots who are then supported by my tax dollars. There may be majority who disagree with me. In that case, laws can be passed either prohibiting or allowing these events. But I maintain that when the Constitution is silent on this issue, it becomes a matter for the legislature. Remember the 10th Amendment? That is what this dispute was intended to cover.
Regarding the question of who would be in favor and who opposed: I assume Libertarians would favor idiots reproducing (but objecting to tax money being used to support the offspring) I imagine the Liberals would also support it, with a special subsidy for the offspring. Conservatives, hardhearted beasts that we are, would have a problem with idiots mating, let alone reproducing.
...there is a huge difference between amending the constitution to allow women to vote and a judicial decision that has the same effect. In other words, if we want women to vote, change the constitution by amendment; don’t do it by judicial fiat.
Amen. But I would draw the distinction that there has never been any Constitutional prohibition against the "mentally challenged" having children, unlike your voting example. Women were specifically prevented from voting by the Constitution. As you said, the correct remedy was Amendment, not judicial fiat. I agree. But as to the procreational "rights" of the mentally challenged, the Constitution is silent. So, do we say that such a right is "fundamental", or do we say that it is a states' rights issue? Hmmmmm. I am thinking you would agree with me that Roe was wrongly decided because it invented a right out of whole cloth. Hmmmmmm. So, how can I argue that a state doesn't have the right to mandate sterilization? (I'm sorry for my rambling, this is a tough one.) It must be that I think that procreation is an inalienable right of innocent people, not granted by the government. (I have no problem with preventing murderers from spreading their seed, they forfeited their rights.) I guess when I combine "life" with "liberty" I conclude that consensual procreation is in there somewhere. (Since I have no idea how to answer it, if you want to ask me about consensual adult incest, let's piggyback it with the Mass. thing and start a new thread. There, that got me out of that one.)
I am very firm on this because I view the Constitution as a contract between the people and its government.
An interesting idea, and I would like to ask you what similarities you see? I don't see the Constitution as a contract because all the power is on one side. If my contractor has wronged me, my only redress is to seek justice from my (other) contractor! Our government's laws rule us whether or not we agree with them as an individual. Therefore, there is no "meeting of the minds" (corporate or individual) that is required for contract. The best that could be said is that there is "contract by proxy" via representation. My point is that distinction would throw out much of the contract law you might want to use to defend your position.
It is not only wrong, but immoral, for one party to change the terms of a contract unilaterally.
AMEN.
When I speak of idiots, I am not referring to dumb people or individuals with a sub-par IQ, I’m referring to those with a medical condition. People who are literally not able to take care of themselves. Wards of their relatives – or of the state.
I know you weren't trying to be mean. My bias in this whole thing is that my own mother is an undiagnosed schizophrenic, by my best interpretation. Ten years ago and with the full support of the state's social services, I had her hauled away in an ambulance to the hospital for observation. Contrary to what I was told by the state, all she had to do was to promise not to kill herself or anyone else and they would have to let her go. She understood that her freedom was on the line and she lied her way into convincing them that she did not have a problem. It was easily the worst day of my life. Now, she is 65 and lives in a dump apartment. She literally believes the British government is bouncing laser beams off the sun to give American citizens cancer. I swear I'm not making it up. She is fully functional in that she lives on her own, but she is "crazy" (in the medical sense). I just imagine her being of child-bearing age and can't come to grips with the thought of the government seizing her and sterilizing her because she did not fulfill sufficient societal norms in terms of thinking process. I love her as any good son would, AND if anything ever happened to my wife and me I would never let her raise my children. That is my judgment. However, I just can't see similarly situated people of child-bearing age forced by the government to be sterilized because their childrens' upbringing would be what the government determines as less than optimal. In my experience, no government could possibly make an informed or correct decision on any sort of consistent basis.
I’m happy to continue our discussion.
First let me ask for a little help. You state that the constitution forbad female suffrage. I just checked my copy and did not find that. Could you refer me to the part where women were prohibited from voting?
You are correct regarding the silence of the constitution on the issue of having children. The constitution is also silent on the issue of murder, theft, rape and a whole host of very important issues. That does not mean that the states are prohibited from passing laws prohibiting these activities.
I regard the constitution as a contract that prescribes how the government should work and which limits the control that the federal government has over me. It is the role of the courts to enforce the contract in case of a dispute between the government and me. So I can “enforce” this contract with an appeal to the courts that have the role of reading the contract and intervening when the executive branch of the government breaks it contract with me.
The ratification of the constitution and its amendments is the same as the people signing the contract and agreeing to its propriety.
You may argue that the legislative, executive and judicial braches are all part of the government, and therefore we are at the mercy of the government. However, that assumes that the words of the constitution – the “contract” between us have no force. That will only be true if the courts turn a blind eye to the constitution. That may be in the process of happening, but it is still the exception, not the rule.
I am sorry to hear about your mother. There is an old saying in the legal business: tough cases make bad law. Here is my point with regard to the state taking steps to prevent the mentally incompetent from having children. First, feeblemindedness can be passed on so from a utilitarian viewpoint it should be discouraged. Second, the feebleminded are like children and should be treated with kindness, but prohibited from harming others and from being harmed. That includes being impregnated. There are laws against getting a child pregnant; I can make the case that the same should be true of idiots. I am not sure if idiots were routinely sterilized in earlier times, or only after having children, so I can’t address the actions of the state in times past.
It sounds as if your mother developed schizophrenia at an advanced age. You have no problem with her institutionalization; in fact (from your comments) you would have preferred it. I would think that – if she were young enough – you would not object to a simple medical procedure to insure that should could not provide you with an unexpected brother or sister that could result from her meeting the Holy Ghost on the street corner who convinced her that she was really the Virgin Mary.
I realize full well that these thoughts are politically incorrect to the Nth degree. In today’s society, the sex act and its consequences are virtually sacrosanct. It’s almost funny … we can couple in any imaginable combination and produce any imaginable offspring … and then if we decide that offspring is inconvenient, or we change our minds, we can kill it and be hailed as enlightened souls on the vanguard of society. In a few years, we will find in Roman Law the right to kill our children up to adulthood and will Ruth Bader Ginzberg embrace it?
The restraining order is still in place.
You state that the constitution forbad female suffrage. I just checked my copy and did not find that. Could you refer me to the part where women were prohibited from voting?
HA!!!! You totally nailed me, fair and square! I was loosely thinking of the reference to 21-year-old male voters in the 14th Amendment, but upon review it is totally inapplicable. You're right, it always had been a state issue. It makes me wonder why women weren't screaming bloody murder from the beginning.
You are correct regarding the silence of the constitution on the issue of having children. The constitution is also silent on the issue of murder, theft, rape and a whole host of very important issues. That does not mean that the states are prohibited from passing laws prohibiting these activities.
Well yes, but I was not trying to argue that the Constitution's silence defined a fundamental right. I was trying to say that it is a matter for discussion whether a fundamental right exists here regardless of the constitution's silence. A black person's right to liberty was fundamental (as a matter of truth) both before and after passage of the 13th Amendment. What if the Supreme Court had held in 1850 that slavery was unconstitutional using a penumbra argument? Would we have opposed that because the only way to remedy is Amendment? It's interesting.
It is the role of the courts to enforce the contract in case of a dispute between the government and me.
Maybe we are splitting hairs as to whether the Constitution is a contract or not. My point is just to note that when there is a dispute between the government and me that will be decided by the courts, the courts are the government. You noted that I might argue that (and I do), but I do not do so because the concept of contract falls apart only if the courts misapply their authority. I argue that because of the inherent inequity in having all power vested on one side. It is the possibility of abuse that grates against traditional notions of arms-length contract law. If all power is on one side, whether or not it is fairly exercised, would not such a contract be unconscionable?
The ratification of the constitution and its amendments is the same as the people signing the contract and agreeing to its propriety.
Whoa! Isn't that the argument the reparation folks make? That may hold as to the original signers, but I never signed anything. I am not bound by my father's contracts, which is why I see a distinction between contract under law and law itself.
First, feeblemindedness can be passed on so from a utilitarian viewpoint it should be discouraged.
I would say the same for cancer or any other genetic malady. I would agree with your word "discouraged", but not "outlawed".
There are laws against getting a child pregnant; I can make the case that the same should be true of idiots.
My whole position presumes legal consent. There is no issue of "allowability" if consent is off the table. If medical condition prevents the possibility of consent, I still do not believe it is Constitutionally permissible to mandate an invasive surgical procedure to prevent the potential future consequences of a potential future rape (or other pregnancy without legal consent). Just as you pointed out to me that Constitutional rights are vested in "persons" regardless of gender, I would hold that fundamental Constitutional rights are vested in "persons" regardless of IQ.
I am sorry to hear about your mother. ... It sounds as if your mother developed schizophrenia at an advanced age. You have no problem with her institutionalization; in fact (from your comments) you would have preferred it. I would think that – if she were young enough – you would not object to a simple medical procedure to insure that should could not provide you with an unexpected brother or sister that could result from her meeting the Holy Ghost on the street corner who convinced her that she was really the Virgin Mary.
First, thank you for your sympathy concerning my mom. She became symptomatic only after an ugly divorce when I was about 20 (1986). I didn't mean to give you the impression that I wish her to be institutionalized. If she can (mostly) function now with her untreated mental illness, then with treatment she would be able to be a full member of society. I just want her treated. I believe that with medication she would be fine based on the experience I've had with my wife, who is bi-polar. (Insert clever comment about all the women in my life here :) ) Anyway, when my wife first went into full mania in 1999, she was wholly unable to care for herself or be in public. Her actions were those of a stereotypical "crazy" person. La-la land. She was a completely different person. It was the scariest day of my life because I had no idea what I was going to get back even after treatment. Well, after treatment and the correct medications, which she will be on every day for the rest of her life, she is 95% back to normal. The doctors I have spoken with say there is no reason why the same would be possible for my mother, although her age and the length of time she has not been treated complicate things somewhat.
It's funny, your Holy Ghost example in no way exaggerates the type of thing that goes through my mother's mind. I just believe that if she were treated, she could be back to normal. The infuriating frustration is that she can act sane enough if she knows her freedom is on the line, but she is by no means "herself". Because of this, I would not agree that, were she younger, she should be forcibly sterilized, or more specifically, that the government should have the right to do so. My experiences have shown me that the "competency" scale is vast, with "low scores" caused by genetics, illness, or injury. Some low scores can be greatly improved, some cannot be improved at all. How can we write legislation that is fair and Constitutional with this level of complexity and medical uncertainty?
… and then if we decide that offspring is inconvenient, or we change our minds, we can kill it and be hailed as enlightened souls on the vanguard of society. In a few years, we will find in Roman Law the right to kill our children up to adulthood and will Ruth Bader Ginzberg embrace it?
Amen. I suppose it will depend on whether the mother's health is at issue. What if the baby gets a cold and could pass it on to the mother? That seems like justifyable grounds for a post-natal abortion, doesn't it? We must protect women's rights!
Well, I would say that such a finding would be in direct contradiction of other sections of the constitution which specifically acknowledged the legality of slavery. So, yes, I would oppose such a ruling and go for an amendment.
Your argument reminds me of the argument being made that the court should outlaw capital punishment – again referred to specifically in the constitution – using the excuse that it is “cruel and unusual.” Such an act by the court would be an exercise of raw judicial power and, in my view totally wrong.
The issue is a very basic one. Is the Supreme Court’s role to insure that the legislature and the executive adhere to the written constitution, or is its role to act as a permanent constitutional convention … changing the constitution from time to time without the necessity of a formal amending process? That is a very, VERY large power and one that I, for one am not comfortable giving to 9 un-elected people in black robes who hold office for life.
To use a football analogy, the role of the referees is to call fouls and judge the position of the ball. Once we give them the right to move the goal posts, we don’t have a “fair” game any more. In fact, we don’t know what game we are playing.
”My point is just to note that when there is a dispute between the government and me that will be decided by the courts, the courts are the government. You noted that I might argue that (and I do), but I do not do so because the concept of contract falls apart only if the courts misapply their authority. I argue that because of the inherent inequity in having all power vested on one side. It is the possibility of abuse that grates against traditional notions of arms-length contract law. If all power is on one side, whether or not it is fairly exercised, would not such a contract be unconscionable?”
I’m not sure I understand your argument here. Let me try again to show you the reason the constitution is a contract between the people and its government.
First we had a constitutional convention in Philadelphia where the terms of the contract were drawn up. It decided how the government was going to organize itself, what its powers were and how it related to the states and the people. It made provisions for changes in the agreement and for changes in the government based on the votes of the people. Thus the contract was written.
It was then submitted to the people for ratification. The people signed on and only after that were the constitutional “contract” provisions put in force.
But, you say, the government has all the power. I reply: no, not in a constitutional republic like ours. We can, via the ballot box change part of the government (executive and legislative). See, it’s right there in the contract in article 1, 2 and various amendments. In that respect, the people hold more power than the government. The only thing we cannot directly change is the court. It is the court that has the traditional role of insuring that the state follows the constitution. It is the court’s traditional role to insure that the state cannot do anything to its citizens that is not allowed by the constitution. It is definitely not the role of the Supreme Court to decide when a society’s mores change and, with the stroke of a pen, create new law based on their personal preferences or, in Crazy Ruth’s case, find American law in European law.
Regarding relative powers, as long as we live in a representative republic with a free press and the right to assemble and petition for redress of grievances, we will never be powerless against the state.
Finally, if you feel powerless against the state, the only logical conclusion that I would draw is that you prefer the absence of the state. However, it is the state that protects most people from the raw rules of nature “red of tooth and claw” where life is “nasty, brutish and short.”
The best to you and your family; keep those meds coming and it’s been nice chatting with you.
And I might add: it is largely a dictatorship of the Left, whose agenda can never be passed by legislation, but only imposed by this Judicial Dictatorship.
I kept getting called a "freeper" on AOL, finally found out what a "freeper" was, cancelled AOL and found reality.
There are pragmatic reasons for idealism … and for following the rules.
If you win, you will be perceived to be in the right.
If you lose, you will not be despised.
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