Don't frighten the horses: What Larry Craig tells conservatives about ourselves.

vanity | September 1, 2007 | Nathanbedford

[nathanbedford]

Do you propose doing away with all reasonable codes of conduct?

Of course not. But if you look at my last post you will see that the distinction I have been drawing is that the law ought not to be invoked to enforce our personal morality which tends toward a sharia. The law ought to be confined to the prohibition of acts, not status. The acts ought to be of the kind which caused harm to an innocent. Your "Code of conduct" might prohibit private sexual homosexual acts. My "code of conduct" might prohibit heterosexual acts in all forms except the missionary position. What you think, should I get the law to poke around like the Taliban and make sure nobody is doing it upside down? If I cannot sic the criminal justice system on kinky heterosexuals, why should you be able to sic it on consenting homosexuals?

You have also avoided the whole issue of how this affects innocent children.

Come on, my vanity has at least two references of the need to protect children one of which is to protect them against homosexual indoctrination in the school system. This is one of the "higher values" to which I refer. Of course no one wants to witness a repellent homosexual act in the toilet regardless of his age. There is nothing in anything I have written which suggests that I condone such a thing.

Nathanbedford”, I can almost guarantee you don’t have kids

I have six kids.

[Waryone]

"Homosexual behaviour can be extremely depraved. One example is what takes place in public rest rooms. The fact that there is anyone in our society who can defend any part of that astounds me."

 Hear! Hear!

There is no defense for that level of depravity.
 

[nathanbedford]

I'm tired of intellectualizing this issue. Homosexual behaviour can be extremely depraved. One example is what takes place in public rest rooms. The fact that there is anyone in our society who can defend any part of that astounds me.

It astounds me that you would imply that I would defend homosexual acts in public restrooms. Or, do you mean your paragraph more broadly that all"homosexual behavior can be extremely depraved" and therefore all homosexual behavior must be prohibited even if it is not in a public restroom but in a private home?

If you mean the broader application, I still do not defend the act but I would not invoke the criminal law to stop it. I think what I just said in my most recent post to over the wire bears repeating here:

Of course not. But if you look at my last post you will see that the distinction I have been drawing is that the law ought not to be invoked to enforce our personal morality which tends toward a sharia. The law ought to be confined to the prohibition of acts, not status. The acts ought to be of the kind which caused harm to an innocent. Your "Code of conduct" might prohibit private sexual homosexual acts. My "code of conduct" might prohibit heterosexual acts in all forms except the missionary position. What you think, should I get the law to poke around like the Taliban and make sure nobody is doing it upside down? If I cannot sic the criminal justice system on kinky heterosexuals, why should you be able to sic it on consenting homosexuals?

[gitmo]

I certainly expect it to be when I use one.

[trisham]

It astounds me that you would imply that I would defend homosexual acts in public restrooms. Or, do you mean your paragraph more broadly that all"homosexual behavior can be extremely depraved" and therefore all homosexual behavior must be prohibited even if it is not in a public restroom but in a private home?

If you mean the broader application, I still do not defend the act but I would not invoke the criminal law to stop it. I think what I just said in my most recent post to over the wire bears repeating here:

***************

More intellectualization. Homosexual behaviour, particularly that of males, is extremely depraved, and it is often public. You may dance around this issue as much as you like, and imply that anyone who doesn't take your attitude is advocating sharia law, but the bottom line is that I, and many others are sick to death of the treating of homosexuality as if it is normal and deserves protection. It is not, and does not.

[JSDude1]

That’s what I am saying we should not cast doubt (that he is normal) unless we know definitively.

[nathanbedford]

but the bottom line is that I, and many others are sick to death of the treating of homosexuality as if it is normal and deserves protection. It is not, and does not.

Tell it to the judge. I mean tell it to the justices because they are the ones who have ruled that you don't get your way this time. Your beef is not with me it is with the Supreme Court which has ruled that homosexuality when done in private by consenting adults "deserves (gasp) protection."

[trisham]

Tell it to the judge. I mean tell it to the justices because they are the ones who have ruled that you don't get your way this time. Your beef is not with me it is with the Supreme Court which has ruled that homosexuality when done in private by consenting adults "deserves (gasp) protection."

*************

My beef is also with anyone who writes vanities that imply that homosexuality is the same as heterosexuality.

[tpaine]

nathanbedford wrote:

-- in view of the explicit protection afforded by the Second Amendment, I do not think that the state has the right to try to get at gun violence by restricting gun ownership.
However it is probably constitutional to try to get at drug use by prohibiting drug possession in the absence of a specific constitutional right.
That is not to say that I think it is wise.

If it is [big IF] "probably constitutional" to try to get at drug use by prohibiting drug possession in the absence of a specific constitutional right; --
-- it can be, and is being used to try to get at gun use by prohibiting carrying/possession in the absence of a specific States constitutional 'rights'. -- Namely in New York, Illinois, and California.

Attempting to say it isn't 'wise', is in effect a form of acceptance. It tells us a lot about your conservatism.

As a constitutional conservative I distinguish between natural rights which Tom Paine vouchsafed to us two and a half centuries ago and explicit constitutional rights.

The 9th explains to us that 'explicitly' enumerated or not, our natural rights cannot be denied.

We have an explicit constitutional right to bear arms. We do not have an explicit constitutional right to use drugs.

You mean it isn't explicitly enumerated. -- Big deal. Our freedoms to life, liberty or property certainly include the right to self medicate with drugs.

Therefore I see the power of the state to legislate or prohibit the latter to be far greater than its power to regulate the former.

You are simply denying the validity of the 9th, -- as one of the prohibitions on power placed upon the States by the 10th.
Constitutional conservatives don't do that.

I do not see this as a slippery slope and I do not see it as a compromise of freedom.

I do not see a rational argument herein, just a flat denial.

When I deplore the unwisdom of a prohibition against drug use, I think that is an extension of freedom.
Tom I think you're putting the wrong end of the telescope to your eye.

You think prohibitions extend freedom? -- What kind of telescope do you use?

[nathanbedford]

Stop killing the messenger and stop distorting what I have written. I did not imply that homosexuality was the same as heterosexuality. I do maintain that in some instances, but not all, and under certain conditions, the two should be accorded the same treatment under the law. Moreover, this is not just my idea, it is the law of the land.

I will say to you now for God knows how many times that the law should be vigorous in prosecuting homosexual acts in defense of competing higher values such as, for example, the protection of children from perverts in public toilets.

Finally, I do not accuse you of being a Muslim terrorist I simply say that when we wander into these thickets in which emotions run high because of the repellent nature of male homosexuality there is a great danger that we might abandon our precious Anglo-Saxon sense of fair play and the rule of law in a self righteous desire to stamp out that which offends us.

[tpaine]

You comment:

-- when we wander into these thickets in which emotions run high because of the repellent nature of male homosexuality there is a great danger that we might abandon our precious Anglo-Saxon sense of fair play and the rule of law in a self righteous desire to stamp out that which offends us.

Drug war opponents can comment:

-- when we wander into these thickets in which emotions run high because of the repellent nature of drug use there is a great danger that we might abandon our precious Anglo-Saxon sense of fair play and the rule of law in a self righteous desire to stamp out that which offends us.

Gun rights defenders can comment:

-- when we wander into these thickets in which emotions run high because of the so-called repellent nature of 'firearms violence' there is a great danger that we might abandon our precious Anglo-Saxon sense of fair play and the rule of law in a self righteous desire to stamp out that which offends us.

Can you agree that the principles are the same? --- That we are all obligated to defend our individual constitutional rights against ALL prohibitionists?

[Marie2]

the author asks, “But is it right to write laws which make otherwise innocent behavior (nonconfrontational solicitation) criminal ?”

Yes, if it’s in a place where there is a reasonable expectation of privacy and lots of unattended minors.

There should be no solicitation of sex in a public bathroom. I don’t want a guy in the women’s room reaching up into my stall. I don’t want a woman in the men’s stall eyeing my son between the cracks in the door. I don’t want a tranny asking me for a service while I’m washing my hands.

Homo, hetero, pederast, pedophile, etc. etc. etc, I do not care, the public toilet has a unique private/public component and has unattended minors in it all the time. There should be no sexual activity going on in there. Get over it.

[trisham]

Finally, I do not accuse you of being a Muslim terrorist I simply say that when we wander into these thickets in which emotions run high because of the repellent nature of male homosexuality there is a great danger that we might abandon our precious Anglo-Saxon sense of fair play and the rule of law in a self righteous desire to stamp out that which offends us.

*************

It's clear we disagree. The notion of "fair play" when it comes to predatory homosexual behaviour is unclear to me. Is it "fair play" for homosexuals to use our public places to solicit and complete sexual acts? Is it "fair play" for them to undermine the meaning of marriage and relationships?

Claim all you want to find such actions repellent, but I am not convinced, as your statements seem to excuse it.

[the Original Dan Vik]

“Homo, hetero, pederast, pedophile, etc. etc. etc, I do not care, the public toilet has a unique private/public component and has unattended minors in it all the time. There should be no sexual activity going on in there. Get over it.”

Thank you.

[Waryone]

"There should be no solicitation of sex in a public bathroom.  I don't want a guy in the women's room reaching up into my stall.  I don't want a woman in the men's stall eyeing my son between the cracks in the door.  I don't want a tranny asking me for a service while I'm washing my hands.  Homo, hetero, pederast, pedophile, etc. etc. etc, I do not care, the public toilet has a unique private/public component and has unattended minors in it all the time. There should be no sexual activity going on in there."

That is such a basic truth, that even many of the sodomites agree with it. The only ones who would disagree with that statement are the degenerates who erroneously believe they have a constitutional right to bugger anyone, anywhere, anytime. 

[nathanbedford]

Neither do murderers engage in "Fairplay." Nevertheless, in our system of jurisprudence we give them a fair trial. For the most part we do not accuse those who support granting due process to murderers to be in the business of "excusing" murder.

I'm in the camp that says about murderers, "first you give them a fair trial and then you hang them, and you really ought to do it in that order." If you think that concern for the maintenance of due process in our juridical system makes one guilty of condoning murder or buggery, you are probably beyond reasoning with.

[trisham]

Fine with me.

[the Original Dan Vik]

“If you think that concern for the maintenance of due process in our juridical system makes one guilty of condoning murder or buggery, you are probably beyond reasoning with.”

Former Sen. Craig was charged; he was brought before a court and afforded an opportunity to plead; he pled guilty. When faced with public knowledge of his filth, he resigned his office.

You are beyond reasoning to believe that we should agree with you or anyone that he should be granted a reversal without even filing an appeal.

[nathanbedford]

It is difficult enough to defend what one has said from the assault of the Philistines but it is beyond endurance to have to defend what one did not say.

[nathanbedford]

In discussing seriously whether a citizen can claim constitutional protection against state or federal intrusion because he is protected by the ninth or 10th amendment (or more precisely put: Because the government lacks the constitutional power to interfere because of the 9th or 10th amendment) it is important to distinguish as conservatives between what is reality and what ought to be reality in constitutional interpretation. Are we talking about the world of constitutional jurisprudence as it is or as we want it to be?

The text of the ninth amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

There are at least two ways to interpret this language. First, we focus on the word "enumeration" and read the language to mean that the act of enumerating rights (such as the right to bear arms) does not mean that the list is limited to what is written. In other words, by focusing on the word "enumeration" we regard the amendment as nothing more than a reader's guide to interpretation. In this case a precept of interpretation which is sort of the reverse of "the exception proves the rule." The exception proves the rule doctrine means that the enumeration of the thing marks it as an outlier and therefore the norm is to the contrary. Thus, the enumeration proves the opposite to be the rule. So the enumeration of the right to bear arms does not imply that the government has the right to engage in genocide against its own people because it is not expressly prohibited from doing so.

The second line of interpretation says that inherent rights are by natural law vested in the people and unless Congress (or after the 14th amendment, the states) is expressly vested with the power in the Constitution, the natural or inherent right of the people must prevail over the power of Congress. This interpretation has been advanced by pro-abortionists who would restrict the power of the state to regulate abortion as repugnant to a right of privacy. The "rights" of privacy can be drawn by them from either natural rights or inferences from various parts of the Constitution.

Which interpretation, in reality, has prevailed? If we are to live in a world of reality, the world of constitutional jurisprudence as it is and not as we might wish it to be, this question is important . It does no good to bluster on FreeRepublic claiming constitutional rights that do not exist and which the Supreme Court will not acknowledge. That is not to disparage those engaged in litigation or in the political process to get their interpretation ratified either by the court or by amendment. It is simply an admonition that we should deal with the state of the law as it actually is. The Supreme Court has consistently held that the ninth amendment, in itself, does not establish, that is create, any right by which a citizen can restrain the government. Full stop.

I suspect you are interested in the possibility of prohibiting the state by the ninth amendment from interfering because you do not want the state to interfere with your right to bear arms. ( If I am presuming here I would be grateful if you would disabuse me.) In this regard are you aware of this Rutgers Law Journal (1992) article by Professor Nicholas J. Johnson titled:

BEYOND THE SECOND AMENDMENT: AN INDIVIDUAL RIGHT TO BEAR ARMS VIEWED THROUGH THE NINTH AMENDMENT

In his article Professor Johnson argues persuasively that the right to bear arms should be protected from interference or prohibition by the government because that right is protected by the ninth amendment. I say that the professor argues persuasively but of course he is preaching to the choir as far as I'm concerned. However, I have two problems with this approach. First, the court is simply very unlikely to adopt this avenue to restrict the government's power in any sort of case and certainly not in a gun case. This is because of the elitist bias against gun ownership which Professor Johnson outlines quite well in his article and, incidentally, quotes Judge Bork to the effect that judges, lawyers, law school professors, and critics are themselves normally in no need of firearms protection. Whatever the reason, I have no doubt that the likes of Justice Ginsburg will never see a natural right to bear arms even when the barbarians are at the gate. But it is not just Justice Ginsburg. Justices from the extreme left of the spectrum to the extreme right, from Justice Douglas to Justice Scalia have written that the ninth amendment does not establish rights which restrain the power of the government. Revealingly, at a time when the leftists on the court were groping around to find a rationale to justify abortion and even resorting to "shadows and penumbras" and other absurd Touchy Feeley justifications, Justice Douglas in concurrence in Roe V. Wade explicitly abandoned the lower court' s ninth amendment rationale and had resort to a due process argument. If the leftists would not go to the ninth amendment under these circumstances they certainly would never go to it for guns. On the far right of the spectrum, Justice Scalia has explicitly written that the ninth amendment does not offer Justices and opportunity to find new rights in order to restrain government powers.

So as a practical matter, I do not hold much hope that the Court will in the foreseeable future resort to the ninth amendment to restrain government prohibition of gun ownership.

The second problem that I have with the ninth amendment approach is that much of the gun grabbing is done by the states as well as the federal government and the Bill of Rights is a limitation of federal powers(although it is nice question whether, by its very nature the ninth amendment, because it purports to recognize "natural rights" which are inherent, or God-given, or natural, is therefore perforce operable against the states as well as the federal government). Therefore, if a right, enumerated or unenumerated, is to be found by the court which can be applied against the state government, it must be applied through the 14th amendment.

That means that we are going to protect your guns we have to do it through the 14th amendment. That means the the Justices have to find a due process rights which trumps the state interest in prohibiting your right to bear arms. The problem is that not all but only some of the enumerated rights (some of those rights listed in the Bill of Rights) have been explicitly incorporated into the 14th amendment, the second amendment of course not being among them. However, one of the primary tests for such incorporation into the 14th amendment is whether the right is enumerated, ie appears in the first eight amendments. That is why I said:

" in view of the explicit protection afforded by the Second Amendment, I do not think that the state has the right to try to get at gun violence by restricting gun ownership.

However it is probably constitutional to try to get at drug use by prohibiting drug possession in the absence of a specific constitutional right.

That is not to say that I think it is wise."

"We have an explicit constitutional right to bear arms. We do not have an explicit constitutional right to use drugs. Therefore I see the power of the state to legislate or prohibit the latter to be far greater than its power to regulate the former."

You seem to take great exception to this observation implying that I have committed some sort of traitorous betrayal of the ninth amendment. To the contrary, I am merely stating that our odds are better in the 14th amendment context, because that is the world of constitutional jurisprudence as it really is rather than as we wish it to be.

Incidentally, while I am addressing your criticisms of my previous posts let me ask you to read my remarks again in the hopes that you will acknowledge that you misunderstood their plain meaning:

" When I deplore the unwisdom of a prohibition against drug use, I think that is an extension of freedom. Tom I think you're putting the wrong end of the telescope to your eye."

You replied:

You think prohibitions extend freedom? -- What kind of telescope do you use?

Of course, I think nothing of the kind, I think precisely the opposite which is exactly what I said.

Elsewhere you stated:

Attempting to say it isn't 'wise', is in effect a form of acceptance. It tells us a lot about your conservatism.

I am content to rest my conservatism in the good company of Justice Scalia and Justice Thomas.

Finally let me aver to your post number 170 and say that in general you are correct but it is important that we not mix procedural due process with substantive due process. Because we want to be procedurally fair to murderers or buggerers does not mean we endorse murder or buggery. On the other hand, we believe in a substantive right to bear arms. Because I might believe that unwise to prohibit the use of drugs, does not mean that I endorse their use, it does not even mean that I condone their use, it just means that I don't believe the criminal law is an effective way to deal with the matter.