Posted on 02/21/2002 12:36:24 PM PST by Oldeconomybuyer
Edited on 04/13/2004 2:39:43 AM PDT by Jim Robinson. [history]
BOSTON (AP) -- Massachusetts' highest court on Thursday upheld two anti-sodomy laws but limited enforcement to cases when specific sex acts occurred in public or weren't consensual.
Gay activists said the Supreme Judicial Court ruling clarified for the first time that anti-sodomy laws don't apply to private, consensual sex.
(Excerpt) Read more at sfgate.com ...
You seem to think that you are talking about taking power out of the hands of the government.
But your system simply transfers power from one part of the government to another; from the more accountable branches (the legislature and [to a lesser extent] the executive) to the least accountable branch (the judiciary).
...."It really takes all the sting out of these laws"
You're changing the subject. I addressed your assertion that the language in our state and federal constitutions that refers to inherent and un-enumerated rights is meaningless decoration with no mechanism for enforcement.
In fact, this language lays the foundation for all other declarations in our constitutions. Just about every state constitution begins with declarations something like:
1. The people have all rights 2. The people delegate a few powers to government. 3. The people retain all other rights. 4. The enumeration of a few of these rights does not deny all others retained by the people
90% of my reply concerned issues such as randomly selected citizen juries and the requirement of unanimity of the community for enforcement of statutes. Why do you ignore it and keep bringing up the Supreme Court?
And you even distort what I said about the veto system as it applies to the various governmental branches. Power is not "transferred" it is separated and diffused.
The 'invention' of Substantive Due Process
Address:http://www.freerepublic.com/focus/fr/633191/posts
I made some comments on the articles premise, so feel free to come over to defend it.
No, the Supreme Court, in effect, is the supreme jury. They can be overruled by amendments, or fought in court by further state law that skirts their 'declarations'. No one prevents states from prosecuting abortion as murder. -- The USSC said they couldn't declare it to be murder in the first trimester [due process]. - Big difference.
Also, when a president or governor refuses to enforce a law, he can be turfed out of office at the next election and replaced with someone who promises to enforce the law. When do we get rid of Stephen Breyer? Only when he chooses to leave or dies. And then, under your system of jurisprudence, we have to hope that his replacement agrees with us politically, since it is his political desires that will govern the decisions he makes.
False, -- USSC judges can be removed. See Art III, Sec 1, 'good behaviour'.
Pardon me, but I simply don't like that system.
-- Yep, its pretty clear you have major problems with the constitution, as written. Lots of your fellow statists here at FR do. You need help.
Because on this thread, we were talking about the courts overturning laws on the basis of unenumerated rights. Jury nullification is a different thing, and I did not want to get sidetracked.
Just one of those unenforcable laws. Until the last election, inter-racial marriages were illegal in Alabama.
Ok, but you had already gotten sidetracked enough to question the existence, value, and purpose of un-enumerated rights in our state and federal constitutions, and that is what I what my replies were direct toward.
I do not question the existence of unenumerated rights. I question giving unaccountable officials unlimited power to determine what those rights are.
Look, if there is a law which clearly offends against the plain language of the Constitution (say, the Shays-Meehan Act), then I have no problem with judges overturning it (or, in fact, with juries refusing to enforce it). "Congress shall make no law...abridging freedom of speech, or of the press...." It's right there in black and white. If an appellate judge does not strike down at least the speech-restricting parts of Shays-Meehan, then he is objectively wrong.
But take the issue we've been discussing: sodomy. You say that sodomy is one of those unenumerated rights. I say it isn't. Deadlock. Neither of us has an argument based on actual Constitutional language. The only thing that matters is the naked (no pun intended) political preference of whichever judge gets to decide whether or not to enforce the law. And if you disagree with the decision? Well, tough. No decision made in such a circumstance can be objectively wrong, since the rights at issue are unenumerated. And since no objective legal standard exists, courts' decision-making processes will be political, based solely on the preference of the judge. The judge, like a legislator or a chief executive, will have very wide discretion in applying his own personal political preferences to the cases before him. But unlike elected officials, that discretion will not be accompanied by accountability, and discretion without accountability strikes at the heart of republican governance.
Each tribunal whether executive, judicial, or jury can choose to not enforce existing statutes, but it can't create new laws to enforce.
Nowadays, all government officers and jurors are usually threatened with jail unless they do what "the courts" say they must, but that's not how it is supposed to work.
And the claim that government officers currently blindly follow "court interpretations" of statutes is ridiculous on its face. There's all sorts of old nutty statutes on the books (like adultery statutes) that the police never enforce and prove that their claim that they are "sworn" to follow "court interpretations" is baloney.
Not really. Then again, I am not a libertarian, so I don't come at the issue from the point of view that individual rights always and everywhere trump the right of the people to legislate through their representatives. As a conservative, I think things are almost always far more complicated than libertarians make them out to be, and the question of when individual trumps community and when community trumps individual is no exception. This is a question which has had no final and definitive answer for six thousand years of human civilization, and we will undoubtedly be hashing it out for as long as human civilization continues.
Each tribunal whether executive, judicial, or jury can choose to not enforce existing statutes, but it can't create new laws to enforce. (Emphasis added.)
And that's where our disagreement lies. I think when the Constitution states that the President "shall take Care that the Laws be faithfully executed," those words (again, the plain language of the document) actually mean something. Refusal to enforce a law because it conflicts with the Constitution is consistent with that requirement. Refusal to enforce a law because the President dislikes it is not. To give a single man, even an elected official, complete discretion over whether a law is or is not enforced is a recipe for tyranny, even granted that he cannot on his own account add positive prescriptions to the law.
And the case is even clearer in the case of the courts, which are far less accountable than the President, and which (at least on the federal level) have no constitutional legislative authority.
But if you think that refusal to enforce a statute because it conflicts with the non-enumerated rights clauses of our constitutions is not faithful execution, then I think you are rendering inert the language in our constitutions that lay out their most fundamental principles.
So this judge has said that private, consensual acts of sodomy should be protected.... and you think this is judicial activism?
Given that all rights not specifically retained by the state are retained by the individual, how do you make this argument?
Well, and this is the main point I've been trying to make. Who says that (to take this specific example) a law against sodomy violates the non-enumerated rights clause?
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