"Should I Worry About Becoming a Slave Again?"
I know everyone's mad at Whoopi Goldberg for asking that question, but she was simply articulating a common fear that people have about strict constructionism, and it's a fear that right-wingers must address, particularly if we are going to assert that as a matter of law, it might be more appropriate if abortion were to be decided by the states, rather than by Federal overreach.
And it is a stickier issue than people like to admit.
What Whoopi is asking here:
is "how far do you want to turn back the hands of time?"
And whenever we talk about how we want the Constitution interpreted with the Founding Fathers' intentions factored in, we're going to get asked that question by the "living Constitution" crowd.
I think we should get asked that question by the "living Constitution" crowd.
Because the way I see is—as someone who has never set foot in a law school—the dirty little secret is that even strict constructionists wink at a certain kind of Federal "overreach," especially of the "Brown v. Board of Education" type. Because that same clique of crazy guys who wrote the original Constitution without spilling any of each other's blood managed to put together that "Declaration of Independence" thingie, which declared that "all men are created equal" [clearing the way for "all men and women are created equal," English being a Germanic language—and "man" being German for "one," the individual, gender aside: the "smallest minority"].
So strict constructionism has to do with intent, and we have a lot of supporting documentation on the Founding Fathers' intent—which was to create a new type of freedom for the individual, by limiting the power of the State. They had a vision, and it was a capitalist, individualistic vision.
The problem in comparing abortion "rights" with other types of rights is that in the particular case of abortion there are two individuals involved, and their rights/obligations have to be balanced against each other.
That is why abortion is problematic, and could well at some point be returned to the states to decide. It is also why gay marriage is inevitable, whether or not we go through a couple of decades of calling it "civil unions" or not. (Or, as I would prefer, call all legal unions "civil unions," and make them all legally equal. Then people could do the church part if they liked, and call 'em marriages if they liked. And no one would have to use the word "marriage" for anyone else's "civil union" if they didn't want to. And we could all stop arguing about that.)
Once one looks at the Constitution through the prism of the Declaration of Independence, it's easy to see that constructionism is not going to roll back civil rights (again—unless you see abortion as a civil right, which is all well and good, but you got there [and I am pro-choice] by rolling over the rights of the fetus).
This clip apparently upset a lot of people.* I thought it was fine; McCain came off very well, and in order to do that he didn't have to pretend not to be religious, or pretend that Constructionists didn't pose a danger to Roe v. Wade.
He just had to be himself, and he was funny. People always forget that McCain's funny, and it catches 'em off-guard.
* Including Allah, whose answer on abortion would be a Constitutional Amendment. Ouch. I'd much rather see that one determined by the states, if Roe v. Wade ever were ever to be overturned.
1
Gays can already marry, that is, they can already promise to be sexually exclusive with one other person. They can do that any time. It's not what they're asking for.
What they want is for the state to provide material benefits on account of the relationship, and to force employers to provide material benefits on account of the relationship. The libertarian in me says no to that. As far as I am concerned, if an employer recognized only straight marriages, only gay ones, or only Mormon ones, and set employee benefits accordingly, that would be his inalienable right and should be recognized as such.
The other legal benefits of marriage can be handed out to any domestic arrangement without anybody caring.
Posted by: John at September 16, 2008 03:35 AM (wS+1B)
2
Gregory, that form of "slavery" is called indentured servitude. Historically, it was a method by which one promised a certain length of service, typically 7 years, in exchange for passage to the New World.
Posted by: I R A Darth Aggie at September 16, 2008 10:56 AM (1hM1d)
Apparently we have a presumption of innocence thingie in this country, and that means law enforcement isn't supposed to have quite so many swashbuckling adventures in the realm of family law.
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Look, We Know What's at Stake . . .
WRT this voter ID issue: Americans hate to show their I.D.
And Americans hate to be fucked with when they are voting.
Personally, I find the idea that hotels ask for my I.D.—even when I'm paying with cash—to be rather oppressive. And the idea of living in, um, a country like Europe, wherein the cops could stop one on the street and ask for "papers," fills me with loathing.
But voting is a solemn thing; it's at the core of democracy. And voter fraud is intolerable. We've got to allow states to put safeguards in place. Yeah, yeah: Chicago will be especially hard hit if voter fraud goes out of fashion. But somehow I think the Windy City—and the rest of us—will soldier on.
1
"If a Republican got elected in Chicago, the voters would turn over in their graves."
Unless we eliminate secret ballots, voter fraud will always be a potential problem.
Posted by: John at January 09, 2008 01:31 PM (VPJwq)
There's an Interesting Discussion Going On
. . . over at Tammy Bruce's place regarding the morality of pay raises for public servants in general, and Federal judges in particular.
It reminds me of Catherine Beecher's campaign to get women into the teaching profession, especially on the western frontier. Her argument was precisely this: cash-strapped towns in the West could get a qualified female teacher for a quarter or a third of what a male teacher would cost.
And a lot of women got work in those "pink-collar" jobs for years: it became an easy and respectable way to get out of the house. But now the entire profession is underpaid because the tradition of underpaying was established. All this flows from the notion of work as something one does from civic-mindedness, a desire to give. I believe deeply in that, but it does lead to "brain drains" in any number of fields.
The reasons for which society is willing to pay for certain skills are often bizarre and arbitrary.
1
You say: "The reasons for which society is willing to pay for certain skills are often bizarre and arbitrary."
No, what individual corporate entities or employers pay for certain skills is determined by the worth said corporate entities/employers place on said skills. Nothing more, nothing less. That teachers (who, by any reasonable reckoning, are not "underpaid") aren't paid more is based on the fact that those entities that hire teacdhers don't place more value on the work the teachers do.
Posted by: Jeff H at January 03, 2007 12:47 PM (s927e)
2
I believe that teachers--many of whom are underpaid--suffer from the same problem that ministers/ priests and shrinks do: the attitude that what they do should be a "calling," and they do not get to get paid for it. Or at least, they do not need to get paid much.
"Don't you want to help people?" That's the problem.
Posted by: Attila Girl at January 03, 2007 09:54 PM (zxOEV)
3
If there were insufficient numbers of teachers willing to work for what teachers get paid, then salaries would rise. If you can't fill the slot at a given salary, you don't have a choice.
This is true of any job or profession.
The simple truth is, there are enough people who want to be teachers at the current salaries that teachers make. That's the market at work.
And if you've ever done any trading in any market, there is one axiom you must learn and learn well to survive: the market is always right, however much it may or may not make sense to one's analysis of it.
Posted by: Desert Cat at January 04, 2007 09:13 PM (xdX36)
4
"I know. But I do not approve."
I am, however, resigned.
Posted by: Attila Girl at January 04, 2007 10:48 PM (zxOEV)
5
Or, to put it differently: the market is always correct. That does not make it morally right.
Posted by: Attila Girl at January 05, 2007 11:27 PM (0CbUL)
Word Just Came In
. . . from SoCal LawBlog regarding the Bear Flag League's brief in the Apple case (O'Grady v. Apple):
As some of you may know, the BFL filed an amicus brief with the California Court of Appeal in the litigation between Apple and two bloggers. We weighed in on the issue of a blogger's entitlement to the same first amendment protections that traditional journalists received. We filed our brief about a year ago and the court has since been very quiet. Last week we received notice that the court will hold oral argument this month. I'll keep you updated on the status of the case.
Included in the e-mail is a link to the Electronic Frontier Foundation's website; the Foundation is following the case. (You'll note that the BFL amicus brief is the first one listed in the Foundation update linked above.)
For more on the Golden State bloggers behind the Bear Flag League, start here.
BTW, I'll grant that there are a lot of us, but keep in mind that the last time I checked, California was the most populous state in the country. (I said "populous," not "popular." Yeah, I know people love to hate us. Especially people who live here. I don't see 'em making plans to move, of course. As for me, you'll have to pry the palm fronds out of my cold, dead fingers.)
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"The Most Important Issue of Our Day
. . . is being decided right now," he tells me. "And people are oblivious."
"What's the issue?" I ask.
"The limits of Executive Power. The relationship between Congress and the President. I care about that much more than I care about abortion."
This clarified things for me enormously, because I had thought the big issues of the day were things like:
1) whether/how Israel will survive;
2) whether parts of Asia or the Middle East were going to be annihilated in a nuclear war;
3) whether terrorists would succeed in taking out both the White House and the Capitol building at the same time, thereby effectively decapitating the government of the United States as the 9/11 terrorists attempted to do;
4) whether Europe would remain Western and liberal in its outlook, or whether it would instead be overtaken by the unenlightened segment of it growing Muslim populations, and
5) just how much bloodshed there would be in the growing conflict between Islamism and Western-style liberalism.
But, no. Apparently the issue is that Bush is packing the Supreme Court with justices who will give him a little bit of latitude in fighting this war, though he hasn't approached the liberties FDR took with the system—much less those Abraham Lincoln felt forced to take in keeping the Union together.
1
Yep. That's my No. 1 concern. Well, that and all those prostitutes and drug dealers threatened with Gitmo via the Patriot Act. No wait. That's network television fiction--Law and Order and it's spinoffs, the Practice and every other left-wing drama. Al Gore can have everyone who faced the Patriot Act up on stage with him when he delivers that Police State speech next week. I mean real folks, not the TV actors. But he might have to get the TV actors if he wants anyone to join him up there. It would make for better TV, if they were in costume.
Terrorism? It's all a myth...Yep. Bush's Imperialism is the real problem. Remember where you heard it.
Posted by: Darrell at January 14, 2006 09:08 PM (W9PvN)
Posted by: Attila Girl at January 15, 2006 11:17 AM (/y+/O)
3
What a shock! The conservative President putting conservative (we hope) Justices on the Supreme Court..
To the victor, goes the spoils.
Posted by: Marvin at January 16, 2006 02:03 PM (LKYQX)
4
Yeah, where the hell does that Smirkychimp W. McHitlerburton get off, acting like his party won the 2004 election, or like they control the House and Senate?
Oooh, it makes me so angry that I think I'll go put another smarmy bumper sticker on my car - or maybe key the one next door with the W sticker.
Posted by: Steve Skubinna at January 18, 2006 12:21 AM (j4Cpd)
5
[...] he hasn't approached the liberties FDR took with the system—much less those Abraham Lincoln felt forced to take in keeping the Union together.
Interesting that you should bring this up. Do you think that the Japanese-American internment camps (in FDR's case) and the suspension of habeas corpus (in Lincoln's case) were reasonable, necessary responses to the exegencies of the day?
Posted by: Christophe at January 18, 2006 10:13 PM (td8Qe)
Posted by: Attila Girl at January 18, 2006 11:33 PM (/y+/O)
7
"No," and "probably not."
I'm with you there, but claiming that Gitmo isn't as bad as Manzanar doesn't mean Gitmo's fine.
I'm surprised that the right is giving Bush a pass on Gitmo and the related extra-judicial apparatus. This seems directly contradictory to the underlying philosophy of, "The government cannot be trusted to maintain liberty on its own," which is precisely what is being asked of us at Gitmo. If, post-Oklahoma City, the Clinton administration had been hauling armed members of right-wing groups into prisons without clear charges, no judicial review, and no real timetable for what is going to happen to them, I would think that the right would have, uh, sent a crisp letter or something about it.
Sure, I don't fancy nuclear war or any of those bad things, but really, I don't think my choice is quite as stark as: Accept everything the administration wants, or the bad stuff in #1-5 will happen as night follows day.
Posted by: Christophe at January 19, 2006 03:22 AM (td8Qe)
8
Are you blurring the line between American citizens and non-American citizens accidentally, or on purpose?
I'm also trying to think of another country whose prisoners of war actualy gain weight during their captivity. I'm not coming up with anything off the top of my head, though.
Posted by: Attila Girl at January 19, 2006 01:01 PM (/y+/O)
Few Democrats or analysts said they thought that Judge Alito's nomination could ever be blocked. "It may be a mistake to think that their failure demonstrates that they necessarily did something wrong," said Richard H. Fallon, a professor of constitutional law at Harvard Law School. "As long as most of the pubic will settle for evasive or uninformative answers, maybe there was nothing that they could have done to get Alito to make a major error."
Amazing. Apparently, Ruth Bader Ginsberg just appeared on the Supreme Court one day, like Venus on the half-shell. Or Fallon had a dream in which she answered the sorts of questions Alito didn't.
Or, most likely: nominees appointed by Democrats should be rubber-stamped no matter how ideologically extreme they are, whereas Republicans' nominees must be grilled.
The "Ginsberg rule," in other words, only applies to nominees who are "within the judicial mainstream." And the mainstream is, of course, leftist.
1
This is as close to linear thinking as the Left can muster. Maybe you should append this post to the next?--The Best Way To Deprogram Yourself...
Posted by: Darrell at January 14, 2006 12:07 PM (cUMtc)
2
Or, most likely: nominees appointed by Democrats should be rubber-stamped no matter how ideologically extreme they are, whereas Republicans' nominees must be grilled.
Um, I must be missing something. Generally, Democrats will find appointees by Democrats more acceptable than appointees by Republicans. Similarly, Republicans will find appointees by Republicans more acceptable than those appointed by Democrats. This seems to be exactly the behavior one would expect in a two-party system. I realize that Democrats Bad, Republicans Good, but expecting Democrats to routinely veto appointees by Democratic presidents because, y'know, it's all fair that way may be taking it just a bit far.
Bush, in fact, may have acquired the singular distinction of having nominated a candidate to the Supreme Court that he couldn't get by his own party. One should not lose sight of the fact that such situations are anomalies.
Posted by: Christophe at January 18, 2006 10:18 PM (td8Qe)
3
But things are changing, and not for the better: Ginsberg, as far left as she is, sailed in easily. Hell: Scalia was confirmed almost unanimously.
Posted by: Attila Girl at January 18, 2006 11:40 PM (/y+/O)
It's not like my uterus has ever done me any good, other than garner strange praise from OB-GYNs, who get oddly enthusiastic about my reproductive organs, despite the fact that I've never truly exploited their potential.
So the uterus-as-accessory idea might be the way to go.
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1
Dear Miss Atila,
this is from the Americans for Dr. Rice group. I am posting it to share information with you and your readers. I hope this is ok, and that you celebrate free speech as much as I do.
Americans for Dr. Rice leaves for a trip to Iowa this weekend. Your readers in Iowa a might enjoy coming to this event.
Here is the message I am sending out on behalf of our new spokeswoman in DC, Jessie Jane Duff.
This trip to Iowa will give us a chance to speak directly with the people of Des Moines about our nationwide effort instead of drowning by the power of the mass media in Iowa. That was one of the motives to advertise our TV ad promoting Condoleezza Rice as our next president on the ABC show, "Commander in Chief", to get our message out to the audience. The group purchased ads on ABC in Des Moines for 2 weeks on television. That is also why we paid for radio ads in Des Moines for over 6 weeks on WHO, to plant the seeds of this great vision for our nation's future.
Here is the list of our events this weekend.
On Sunday, January 15, there will be a public meeting at the Quality Inn on the 2nd floor, Room 208 in downtown Des Moines starting at 2pm. This is part of informing Iowa voters about the Americans for Dr. Rice grassroots effort for 2008.
Since we have a booth at the Iowa Caucus on January 16, this meeting will be a venue for those who are not coming to the Caucus at the HyVee Events Center downtown on Monday. Our speaker, Jessie Jane Duff will provide the pubic with a chance to collect information about the Draft Condi 2008 movement, ask questions, and get a bumper stickers or a campaign buttons.
On January 16, a press conference will be held at 9AM with the Americans for Dr. Rice spokeswoman Jessie Jane Duff at the podium. Martin Luther King's birthday is a day to honor the success of minority representation in local governments, state governments, and for those holding national positions of power, like Secretary Condoleezza Rice, who help create policy for leaders on both sides of the aisle.
In Iowa, we celebrate the recent election of Ross Wilburn as the first black mayor of Iowa City. There are now 3 black mayors serving in Iowa, including LaMetta Wynn and Reagan Banks.
On this wonderful day, we will speak about Secretary of State Condoleezza Rice and why we believe she is the most qualified and strongest leader for our nation in 2008. This is a horserace, and we are betting on the filly with the best legs.
this note was written
on behalf of Jessie Jane Duff
the new leader for Americansforrice.com
Posted by: Crystal Dueker at January 12, 2006 09:32 AM (PzHr9)
The Fair Construction Amendment
It's an interesting notion: requiring that the Constitution be "interpreted" as it was written, without finding things in it that aren't there. It would essentially make judicial activism unconstitutional. One wonders whether such an amendment would even be enforceable, but it's certainly intriguing.
Karl Spence is a proponent, and his latest book focuses on the crime wave of the 1990s, explaining how the Fair Construction Amendment would augment the rule of law. If nothing else, his title is gutsy: Yo, Liberals! You Call This Progress?
This book, other books, and some background on the Fair Construction idea are available here.
1
Given the willingness of the SCOTUS to decide the Constitution means whatever they hell they want it to mean i don't see such an amendment having much of an effect.
Posted by: Stephen Macklin at November 29, 2005 03:16 PM (ics4u)
2
Crime rates have been declining since the early nineties in most categories:
http://www.disastercenter.com/crime/uscrime.htm
I get the feeling you don't read newspapers, but just take it on faith that crime must have gone up because Clinton was president.
Incidently do you understand the position of Justice Marshall or do you know from faith based reasoning that we've been on the wrong course for nearly 2 centuries?
Do you perhaps hold seances with President Diem to guide you so you can lecture the people of this country on what to do without actually reading their history or studying their laws?
Posted by: angela at November 29, 2005 04:42 PM (qM5u/)
3
angela:
What part of the word "constitution" do you not understand? It isn't something to be "interpreted." It is what it is. You do not discover something with it that was never seen before. It's there, in black and white, and it doesn't take a rocket scientist to figure out what it says.
On the other hand, it can take an imbacile to competely screw it up. The US Constitution was composed by pure genius, but it is being bastardized by morons.
Posted by: John at November 29, 2005 04:53 PM (TCZW/)
4
I will apologize for the Diem remark, but do you know that the campaign against judical activism was part of the "southern strategy" and one of the reason it was so reviled was that the courts outlawed segregation and Jim Crow? Not technically dealt with by the constitution.
The debate goes back and forth, there are good arguments that the "right to privacy" used in Roe is questionable, but is a debate within a living constitution.
Most scholars both conservative and liberal argue that the third branch of government is there to act as check on the passions of politics that drives the other branches.
Development of the law is a complex process, but the position you take argues that Internet expression can be censored because it's not literally produced by a press.
I understand at least to a degree the Constitution and the complex history around it. I believe the judges were right to assure the right of people like Ms. Rice to vote. Previous to the court's rulings the states were free to erect various blockages.
Undermining this was one reason why so many condemned "judical activism."
Posted by: angela at November 29, 2005 05:33 PM (niKlm)
5
Yes, Angela. But that was then, and this is now. To say that a racist made a particular argument in the 50s as a rationale for continuing with segregation does not mean that the argument has no validity.
I get the feeling you don't read newspapers, but just take it on faith that crime must have gone up because Clinton was president.
Must be your first visit here. Howdy.
Posted by: Attila Girl at November 29, 2005 06:35 PM (zZMVu)
6
BTW:
The "crime wave of the 90's" referred to in the piece must have been the Clinton administration. Of course it wasn't part of decline in the rate of crime because Clinton had his mits on the Justice Department.
I mean, wasn't this the bunch that produced a Surgeon General who thought that if we legalize illegal drugs, that crime rates would drop? Well, duh! If we legalize EVERYTHING that is currently illegal, then crime rates will DISAPPEAR!
Clinton was a banana republic thug.
Posted by: John at November 29, 2005 06:51 PM (TCZW/)
7
I personally think that it had a lot less to do with Clinton and a lot more to do with the boom in crack cocaine. But, hey—that's just me.
Posted by: Attila Girl at November 29, 2005 07:42 PM (zZMVu)
8
Re the crime rates, I assume we've all read Freakonomics. If not, drop everything and do so.
It isn't something to be "interpreted."
The problem with these kind of things is that the Constitution is always open to interpretation, by its very nature. It was open to interpretation the day it was written. It was a fudge at the time, even as the Founders stood up from the table. The first arguments about what the document meant broke out in no time at all, among people who drafted it.
Let's just take one example: The Constitution does not provide the Supreme Court with the power to strike down laws that conflict with the Constitution. That power is not enumerated anywhere. It's case law: Marbury v Madison. If one is a original-intent type, one must explain how one wishes the Supreme Court from making sure that the only laws that are enacted are ones that agree with the Constitution at the time it was written, while removing the ability from the Surpreme Court to do so.
And one more: The First Amendment provides that Congress shall make no law "abridging the freedom of speech, or of the press." Congress makes a law making it to post political commentary on a blog. Does the First Amendment prohibit this? If so, how do you come to that conclusion without interpreting the First Amendment in terms of intent and logical entailments?
Posted by: Christophe at November 30, 2005 01:19 PM (2rBIo)
9
Christophe - Clarification please? it looks like a couple of your words got dropped:
...how one wishes the [SC] from making sure...
...Congress makes a law making it to post political commentary on a blog...
thanks
Posted by: K at November 30, 2005 03:23 PM (M7kiy)
10
Christophe's a fast typist; you know how those people get. Try these:
"how one wishes to have the Supreme Court make sure"
"law making it illegal to post political commentary"
Posted by: Attila Girl at November 30, 2005 03:32 PM (zZMVu)
11
What LMA said.
Fast typing and lots of coffee are a dangerous combination.
Posted by: Christophe at November 30, 2005 05:03 PM (2rBIo)
12I personally think that it had a lot less to do with Clinton and a lot more to do with the boom in crack cocaine.
And what caused the cocaine boom in the 90's? Could it have had something to do with the heavy-handed crackdown on Marijuana in the 80's? Sadly, I have to lay that one at the feet of Ronaldus Magnus.
Posted by: Desert Cat at November 30, 2005 07:01 PM (xdX36)
13
Well, there's the fact that crack was developed during that time period. But you could be right, if overzealous enforcement of laws that are kooky to begin with caused a market aberration, which was exploited by the purveyors of crack.
It wasn't just Reagan: admitting the irrationality of drug laws is still this strange taboo among politicians.
Posted by: Attila Girl at November 30, 2005 08:13 PM (zZMVu)
14
Christophe - Here we see LMA's editor talent shining out like a beacon on a hill. Probably the only reason it took her nine whole minutes is because she'd wandered off to brew up some tea.
But the "strange taboo" thing? To me it's the only predictable, logical behavior. Other behavior is what would look strange.
Posted by: K at December 01, 2005 07:27 PM (M7kiy)
It's an Alito Jamboree!
See the Truth Laid Bear topic page on SCOTUS Sam.
(Also, link my Alito posts; I'm only #186 on the list of bloggers covering this topic, and I deserve to be higher on the list because . . . because the novacaine is wearing off . . . or because I'm cute . . . or because I'm so freaking smart . . . or BECAUSE OF THE GOLDSTEINIAN HYPOCRISY/PATRIARCHY . . . or, something).
Actually if you want to read the definitive analyses of Alito's positions, you need to go to Patterico's place every day, and keep scrolling. (Here: this gateway post will probably take you there faster.)
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1
It's all part of the gay community's coordinated if curious strategy to follow the black community in walking the plank right off the political spectrum
2
The difference being that the Dems use the black community as a source of votes, but regards gays/lesbians as a source of cash.
So it isn't like they can't tell the difference.
(Did you see the admission near the end of the article wherein it's fleetingly states that one of Alito's decisons had the effect of protecting a boy who was being gay-baited in a public school? No doubt Alito woke up on the wrong side of the bed that day.)
Posted by: Attila Girl at November 03, 2005 04:04 PM (x3SIT)
3
Well, I'd say, given Alito's record, it is very likely that he would vote to overturn Lawrence v Texas. Lawrence being the most significant gay rights victory of the last, oh, 20 years, I'd say that gays have a reason to be a tiny bit concerned.
Posted by: Christophe at November 07, 2005 03:59 PM (2rBIo)
Posted by: Attila Girl at November 07, 2005 06:30 PM (x3SIT)
5
Let me ask a question first, and I'll promise to answer your original question:
Do the states, under the US Constitution as it exists at this moment, have the legal ability to outlaw specific sexual activities based on the activity or sex of the people performing it? (Setting aside Lawrence for the moment, of course.)
Posted by: Christophe at November 07, 2005 07:43 PM (2rBIo)
6
No. I cannot see how one can justify any of the states prohibiting private consensual noncommercial behavior between adults.
I believe it's a unconstitutional overreach; I do not see how the State (or state) has a legitimate interest in this.
Posted by: Attila Girl at November 07, 2005 11:17 PM (x3SIT)
7
OK. We agree. The question is, would the court?
Lawrence's dissenters were Scalia, Thomas, and Rehnquist. I have to observe that Alito is much more in their mould than in, say, Souter's. Scalia's dissent was particularly scathing (really, I used to admire Scalia, but he's becoming more than a bit cranky and irrational).
Of course, no one knows how Alito would vote on a case that relied on Lawrence as a precedent. If Alito is the kind of judge he appears to be, he might not even really know, since the case hasn't been presented yet. (Of course, my very own industry may give them the opportunity, in the form of Extreme Associates, since the US District Court in LA found that current obscenity law and Lawrence were incompatible. I'm not quite sure I see the reasoning, there, but I'm not a judge.)
Scalia, Thomas and Rehnquiest felt that, regardless of whether or not sodomy laws are good public policy, they are within the constitutional power of the state to enact. (Thomas, for example, pretty much said that he thought sodomy laws were bad public policy; from Scalia's dissent, in which he compared the laws against to sodomy to the laws against pederasty, I have to conclude he's more confortable with them.)
Alito strikes me as a judge who will be, if not a red-meat Orginalist, one who will view the doctrines that lead us from Griswold to Lawrence with plenty of suspicion.
As previously noted, I don't think Alito is a nut-case. I didn't think Rehnquist was a nut-case either (I have, ah, how shall we say, more nuanced opinions of Scalia and Thomas). But he does seem inclined to read the Constitution very narrowly, and a very narrow reading makes it hard to sustain Lawrence (or Griswold, or, yes, Roe, which is of course the ghost at this particular banquet).
Posted by: Christophe at November 08, 2005 08:35 AM (KQAt9)
8
Of course, to overturn Lawrence, both Roberts and Alito would have to "vote" to do so. Another justice would have "flip." And then the very recent precedent of Lawrence would have to be overturned.
It sounds to me like a rather startling scenario.
Posted by: Attila Girl at November 08, 2005 10:40 AM (x3SIT)
9And then the very recent precedent of Lawrence would have to be overturned.
True, but Lawrence itself overturned a relatively recent precedent in the form of Bowers (as Scalia made sure everyone was quite aware). These things do happen.
Again, I'm not frothing at the mouth about Alito. The Supremes are, in fact, not nearly as important in the grand scheme of America as activists on either the right or the left make it out to be. And while O'Connor concurred on Lawrence, it was for different reasons than the rest of majority, so it's not entirely clear that the base votes have "changed."
But it's also not nuts to be concerned about Alito if you subscribe to the penumbra theory of rights.
Posted by: Christophe at November 08, 2005 11:01 AM (2rBIo)
10
I'm still curious if you have specific cases of Alito's that lead you to believe he'd overturn Lawrence.
Posted by: Attila Girl at November 08, 2005 11:23 PM (x3SIT)
11
No, but I don't think that's necessary to have concerns. It's a bit like asking a governor of a state, as a candidate for President, has a good track record in the conduct of a war. The Supreme Court is fundamentally different from every other court in the US, and the range of cases and the type of decisions are far different from that of any other court. Some surmise is always required, unless the judge just happened to be on the path of a hot button case; few are so cursed.
The only specifically gay-rights related case that he's voted on is Saxe, and that was a nuanced ruling that I happen to agree with (nose held, but I still have to agree with it). It had zero to do with the legal reasoning underlying Lawrence.
Remember, the question of Lawrence is not (setting aside what Scalia would clearly like it to be) "is sodomy a good thing the state shoudl promote?" but "is it within the state's power to restrict it?" (SoCons, I've noticed, do tend to confuse those two issues, assuming that everything allowed by the state must be perforce endorsed by it.) Alito has shown considerable deference to the legislature when it comes to gray areas, in the same line as Thomas and Scalia.
But we're not going to know for sure until the inevitable challenge to Lawrence reaches the court.
He has certainly not shown any particular friendless towards the rights of those accused of a crime. To me, that's a much bigger red flag, since if the US Constitution is about anything, it's about the rights of people who dissent from or are in trouble with the state.
Posted by: Christophe at November 09, 2005 10:04 AM (td8Qe)
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Clarence Thomas' dissent on the sodomy ruling was clear that were it up to him as a voter, he would vote against it. But that wasn't the question, only whether it violated the Constitution. States regulate all sorts of private behavior - they can tell you who you can have sex with (someone 18 but not 17), where, under the influence of what substances, whether you can pay someone for sex, etc.
The 'right to privacy' is a Humpty Dumpty right. (from Alice: "When I use a word, it means exactly what I want it to mean, nothing more, nothing less.") Somehow, it's never construed to mean you have the private right to own a gun, for instance.
As a homo myself, I have no problem with the legislature deciding such things, & that goes for abortion rights too. I don't agree with Prop 73, but a majority of Californians do. I'm far more concerned about runaway courts than runaway legislatures.
13
One also has to remember that there are those of us who want the reasoning behind the decision to be sound, and actually think that's more important than the decision itself.
That is, rather than have a justice decide what the "good" outcome is, and then rationalize it, I want a constitutional scholar who will tell us what the law is, and work from there.
Then if the law sucks we can work on our Federal, local, and state legislators to change it.
Another way of saying it: I don't want someone who agrees with me. I want someone who's intellectually honest.
Posted by: Attila Girl at November 09, 2005 04:53 PM (x3SIT)
14I'm far more concerned about runaway courts than runaway legislatures.
So, what's your view on Bush v. Gore?
That is, rather than have a justice decide what the "good" outcome is, and then rationalize it, I want a constitutional scholar who will tell us what the law is, and work from there.
No problem. My disagreement with Alito (as I far as I can tell) is not about his politics, so to speak. I disagree with what I perceive as his interpretation of the Constitution, and feel that he will take too narrow an interpretation of the rights granted therein.
And let us not kid ourselves: Justices do work backwards from outcomes. Thomas does it. Scalia does it. I don't think that the platonic ideal of a completely results-free judge exists.
Posted by: Christophe at November 09, 2005 07:13 PM (2rBIo)
On Second Thought
. . . I don't want to see SCOTUS turned into an episode of The Sopranos. Maybe we'd better find someone else; we're already heavy on the wops.