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'Scalia Constitution' is scary
Atlanta Journal-Constitution ^ | 6/30/03 | Jay Bookman

Posted on 06/30/2003 5:59:18 AM PDT by madprof98

In a recent public appearance, U.S. Supreme Court Justice Antonin Scalia, the man proposed by many to become our next chief justice, uttered words that ought to send a chill down the back of every liberty-loving American.

"The Constitution just sets minimums," Scalia told an audience at John Carroll University on March 18. "Most of the rights that you enjoy go way beyond what the Constitution requires."

Scalia is a Harvard-trained lawyer with a keen intellect and an excellent command of the language. It seems fair to assume that he meant exactly what he said.

He did not call into question a few of our rights, or some of our rights, but most of our rights.

And these rights -- or what we naive citizens wrongly presume to be our rights -- do not go slightly beyond constitutional requirements, but according to Scalia go "way beyond what the Constitution requires." In other words, most of the rights that you and I believe we enjoy under the protection of the U.S. Constitution could be greatly reduced under a Scalia-dominated Supreme Court, and he would never utter a peep of protest.

In those March remarks, Scalia did not identify particular rights he had in mind. But in his dissent to last week's 6-3 Supreme Court decision on gay rights, he got a little more specific. In essence, he wrote that Americans do not have a right to privacy. The long arm and peeping eye of government can extend even into our own bedrooms as far as he's concerned.

Fortunately, like Scalia, the Founding Fathers also respected the power of words. They too were precise in their use of language. And in the Ninth Amendment, they state explicitly that "the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

Among those "rights retained by the people," the right to privacy -- the right to be left alone -- is surely fundamental to the American understanding of the proper relationship between citizen and government. And if that right has any meaning whatsoever, surely it extends to consenting adults engaging in the most private of human activities, which is sex.

The majority of the court agreed with that conclusion. It threw out a Texas law that made gay sex a criminal matter, stating that "the Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual."

Scalia, of course, disagreed. He rejected the contention that there is a constitutional right to privacy. He wrote that disapproval of gay sex by the majority is enough to make it a legitimate state interest. The Texas law, he says, does not discriminate against gay Americans because "men and women, homosexual and heterosexual, are all subject to its prohibition of deviate sexual intercourse with someone of the same sex."

That's like saying you can pass a law against being Jewish because that law applies to everyone, Christian, Jew, Muslim, Hindu or atheist.

Like many of those who criticized the court's ruling, Scalia also claimed that "this effectively ends all morals legislation."

Which is nonsense.

Moral codes can and in fact must be legislated when the behavior in question harms another party. That harm makes the behavior a legitimate state interest. Child sexual abuse and child pornography, for example, clearly meet that test.

But what two consenting adults do in the privacy of their own home is not even a legitimate interest of their neighbors, much less of the state.

In his conclusion, Scalia accused the court of "tak[ing] sides in the culture wars, departing from its role of assuring, as a neutral observer, that the democratic rules of engagement are observed."

That's telling language. If we are indeed engaged in a culture war, Scalia's side is losing and he knows it. In his desperation, he and others wish to enlist the power of government as a weapon to repress a minority he despises.

But to paraphrase, that goes well beyond what the Constitution allows.

--------------------------------------------------------------------------------
Jay Bookman is the deputy editorial page editor. His column appears Thursdays and Mondays.


TOPICS: Editorial; Government
KEYWORDS: lawrence; lawrencevstexas; lawrencevtexas; scalia; scotus
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If we are indeed engaged in a culture war, Scalia's side is losing and he knows it. In his desperation, he and others wish to enlist the power of government as a weapon to repress a minority he despises.

The AJC--like most major newspapers--provides almost ceaseless propaganda for one side of the culture war. (Bookman's piece, for example, is accompanied by an op-ed deploring Christian teaching against homosexuality because it makes young gay men feel bad.) I wonder why they fight so hard if they're so sure they're winning?

1 posted on 06/30/2003 5:59:18 AM PDT by madprof98
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To: madprof98
Scalia, of course, disagreed. He rejected the contention that there is a constitutional right to privacy.

And he is right.
I think there should be a Right to Privacy, but the way to insure it is by ammending the Constitution, not by inventing a nonexistant right.

I think the only reason a Right to Privacy is not currently in the Constitution is that it was inconceivable to the founders that any Govt. would even consider infringing it.

So9

2 posted on 06/30/2003 6:05:30 AM PDT by Servant of the Nine (A Goldwater Republican)
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To: madprof98
Bookman is ALWAYS scary.
3 posted on 06/30/2003 6:07:14 AM PDT by freeangel (freeangel)
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To: madprof98
geez... the tortured language and interpretations these idiot liberals use to put down ANY conserveative.

Scalia is right- and that fact that this moron doesn't like what he said convinces me more
4 posted on 06/30/2003 6:07:40 AM PDT by Mr. K (where oh where did my little fishy go?)
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To: madprof98
I believe that if it's not explicitly stated in the Constitution, then it is left to the other branches of government - the people - to negotiate. If they chose not to comment on it one way or the other, that's great and actually preferable. But if they pass a law, one can't always say that the Constitution trumps it and that it's one of the "rights" implied but not expressed by the Ninth Amendment. It's up to the legislative government to decide.

That said, I think that government is intruding in our lives to an extent that needs some sort of check. when it takes upteen millions of dollars to run for a simple state or federal congressional seat, then government is by the monied, for the monied, with favors returned to the monied. I think the "people" and the idealism of the Founding Fathers need a little breathing room these days.
5 posted on 06/30/2003 6:11:49 AM PDT by Puddleglum
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To: Servant of the Nine
Search and seizure is the control. Illegal activity in private is not a right.
6 posted on 06/30/2003 6:11:50 AM PDT by Sacajaweau (God Bless Our Troops!!)
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To: madprof98
The author of this is so glaringly ingonorant of both law and even the fundamentals of our constitution that I won't even bother responding. I find it funny that he appeals to the founding fathers and their notions of rights in his lame attempt to say that a "right to privacy" exists. The founding fathers wrote the constitution and they would be shocked indeed to find out that they nullify local sodomy and abortion laws. Only an ignorant fool (as this author) is or an outright liar can write such nonsense.
7 posted on 06/30/2003 6:16:29 AM PDT by Burkeman1
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To: madprof98
The author of this is so glaringly ingonorant of both law and even the fundamentals of our constitution that I won't even bother responding. I find it funny that he appeals to the founding fathers and their notions of rights in his lame attempt to say that a "right to privacy" exists. The founding fathers wrote the constitution and they would be shocked indeed to find out that they nullify local sodomy and abortion laws. Only an ignorant fool (as this author) is or an outright liar can write such nonsense.

What is worse is that he actually sites the ninth amendment!

8 posted on 06/30/2003 6:17:19 AM PDT by Burkeman1
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To: Servant of the Nine
And he is right. I think there should be a Right to Privacy, but the way to insure it is by ammending the Constitution, not by inventing a nonexistant right.

Seems like it would easily fall under those rights the 9th ammendment (the forgotten ammendment) says are retained by the people." The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.".

9 posted on 06/30/2003 6:19:50 AM PDT by templar
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To: madprof98
"The Constitution just sets minimums," Scalia told an audience at John Carroll University on March 18. "Most of the rights that you enjoy go way beyond what the Constitution requires." Scalia is a Harvard-trained lawyer with a keen intellect and an excellent command of the language. It seems fair to assume that he meant exactly what he said.

Of course he meant it. Unlike the author, Scalia’s apparently read the 9th Amendment:

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

10 posted on 06/30/2003 6:21:36 AM PDT by dead
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To: Servant of the Nine
"Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized"

"Scalia, of course, disagreed. He rejected the contention that there is a constitutional right to privacy. "
And he is right.

Pardon me, but if the 4th amendment does not guarantee a right to privacy, what does it gurantee? Not that I agree with, support, or in anyway condone homosexuality, but the right to privacy in ones home is one of the fundamental tenants of the 4th amendment. As long as what one does in ones home does no harm to anyone else in society, their right to privacy should be protected.

11 posted on 06/30/2003 6:21:49 AM PDT by dixierat22
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To: dixierat22
if the 4th amendment does not guarantee a right to privacy, what does it gurantee? Not that I agree with, support, or in anyway condone homosexuality, but the right to privacy in ones home is one of the fundamental tenants of the 4th amendment.

The 4th limits and regulates the way the Govt. may gather evidence against you for a crime.
That is not a right of privacy, which would prohibit the Govt. from making any laws against things done in private, presumably limited to those between consenting adults.

So9

12 posted on 06/30/2003 6:27:52 AM PDT by Servant of the Nine (A Goldwater Republican)
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To: Burkeman1
What is worse is that he actually sites the ninth amendment!

So what do you say the 9th means? Does it refer to rights of the people not actually specified in the constitution or to something else? Why wouldn't it be referring to a right to privacy of the people? Or does "people" refer to a collective right and not an individual right?

13 posted on 06/30/2003 6:33:38 AM PDT by templar
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To: Burkeman1
Let's see, which of the two (Scalia or Jay Bookman) has spent more time studying the constitution? I prefer to rely on the wisdom of Justice Scalia on matters of constitutional law over a know-it-all two-bit liberal writer.

But that's just my opinion...

14 posted on 06/30/2003 6:34:43 AM PDT by Russ
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To: templar
Seems like it would easily fall under those rights the 9th ammendment (the forgotten ammendment) says are retained by the people." The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.".

The 9th is a constraint on the federal government. It is not a constraint on the states via the 10th. An expansive joining of the 9th and 14th is a recipie for federal judicial activism like that seen in Roe v. Wade.

15 posted on 06/30/2003 6:35:58 AM PDT by dirtboy (Not enough words in FR taglines to adequately describe the dimensions of Hillary's thunderous thighs)
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To: Puddleglum
I believe that if it's not explicitly stated in the Constitution, then it is left to the other branches of government - the people - to negotiate.

This enters the individual or collective right argument. Does "the people" here refer to individual (non negotioble) rights or to the collective right of the people, acting as the State, to controll the individual rights?

16 posted on 06/30/2003 6:36:17 AM PDT by templar
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Comment #17 Removed by Moderator

To: madprof98
Scalia, of course, disagreed. He rejected the contention that there is a constitutional right to privacy. He wrote that disapproval of gay sex by the majority is enough to make it a legitimate state interest. The Texas law, he says, does not discriminate against gay Americans because "men and women, homosexual and heterosexual, are all subject to its prohibition of deviate sexual intercourse with someone of the same sex."

That's like saying you can pass a law against being Jewish because that law applies to everyone, Christian, Jew, Muslim, Hindu or atheist.

The author is right. That was a stupid thing for Scalia to state.

18 posted on 06/30/2003 6:43:53 AM PDT by GraniteStateConservative (Putting government in charge of morality is like putting pedophiles in charge of children.)
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To: madprof98
I would probably agree with the ruling IF it ended in the bedroom, but it doesn't. No sooner than it was handed down, homosexual sex offenders are released from prison, suits are being filed to allow them to marry and the faggot day parade goes into overdrive. All of these things should be of interest to the state for the simple reason that they impose on other peoples' rights. They are no longer hoppy having their own meeting places and carrying on discreet relationships in the privacy of their homes or wherever it is they once preferred. They want to take it to the streets, the courthouse, the church, the workplace, the schools and wherever else they can think of, thereby offending the sensibilities and decency of the majority of people, defiling the sanctity of marriage, and recruiting OUR children in perversity. They have a powerful and growing lobby in Washington pushing their agenda against the well-being of the rest of society. They are working towards legitimizing sex with children (NAMBLA) and making their deviant lifestyle a civil right with the same weight as race. How are these issues NOT a concern of the state? The perverts will only use this ruling as the go ahead to encroach furthur on the rights of the rest of the population. It is a tragic testament to the state of our health as a nation, not to mention a serious threat to our future and that of our children and grandchildren.
19 posted on 06/30/2003 6:44:09 AM PDT by sweetliberty ("Having the right to do a thing is not at all the same thing as being right in doing it.")
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To: TonyRo76
I have to agree.
20 posted on 06/30/2003 6:46:09 AM PDT by Eric in the Ozarks
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To: TonyRo76
So essentially, what you, Scalia, and Burkman1 above are saying is that the only Rights we have as US citizens are the ones ennumerated in the BOR. That the Government can lawfully legislate into any other area of our life regardless of whether or not that power is given to them in the Constitution.

I don't know what country you idiots are living in, but sounds NOTHING like the country the Founders wrote about.

21 posted on 06/30/2003 6:46:30 AM PDT by Dead Corpse (For an Evil Super Genius, you aren't too bright are you?)
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To: Burkeman1
Will you be one of the first to volunteer the installation of a government-monitored camera in your bedroom? If this test installation goes well, then a universal building requirement that cameras be installed in all residences could begin. Surely, since you are so adamant that we have no right to privacy and that the government has a vested interest in preventing any illegal activity in bedrooms or other areas of our homes, you will no doubt gladly volunteer for this important advance in Homeland Security.
22 posted on 06/30/2003 6:46:42 AM PDT by solomangrundy
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To: madprof98
Homosexuals are a 'minority' only by virtue of the fact that the vast majority of people do not engage in this evil. If an evil behavior can be ascribed a minority status, then all anyone who wants to do an evil deed has to do is claim to be 'an oppressed minority.' Next the liberals will claim that rapists are a minority group. "They have the rape gene, and laws against their behavior do harm to their dignity as persons."

Never did a law against sodomy harm anyone, whereas homosexual sodomy has killed over 500,000 American men. Forget the arsenic cocktails, Dr. Kevorkian; just prescribe sodomy to your patients, in the privacy of their own homes of course.

23 posted on 06/30/2003 6:47:59 AM PDT by Cultural Jihad
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To: madprof98
He did not call into question a few of our rights, or some of our rights, but most of our rights. And these rights -- or what we naive citizens wrongly presume to be our rights -- do not go slightly beyond constitutional requirements, but according to Scalia go "way beyond what the Constitution requires." In other words, most of the rights that you and I believe we enjoy under the protection of the U.S. Constitution could be greatly reduced under a Scalia-dominated Supreme Court, and he would never utter a peep of protest.

This idiot has it completely backwards. Scalia's comment appears to be a direct reference to natural rights, which are held to exist independently of the Constitution. Under such an interpretation, Scalia would be more likely to defend natural rights than a Souter or Ginsburg.

What ticks off this lib, though, is that natural rights don't include the invented rights the political left demand that the courts enforce in a extra-legislative fashion. the "right to privacy" has nothing to do with actual privacy, but instead is the assertion that two or more people can contract with each other to do anything, even if it is illegal. That "right" is not a natural right.

24 posted on 06/30/2003 6:48:36 AM PDT by kevkrom (Dump the income tax -- support an NRST!)
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To: solomangrundy
Sigh, ad adsurdum reducto and not worth a response.
25 posted on 06/30/2003 6:49:12 AM PDT by Burkeman1
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To: Servant of the Nine
It's not expressed because it's assumed in several amendments like the 4th and 5th.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

It doesn't say that a right to be secure... is hereby granted. It says since we have these rights to personal security and they are given to us by God, they shall not be violated-- it's an affirmation, not a declaration of something new.

26 posted on 06/30/2003 6:49:21 AM PDT by GraniteStateConservative (Putting government in charge of morality is like putting pedophiles in charge of children.)
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To: templar
Seems like it would easily fall under those rights the 9th ammendment (the forgotten ammendment) says are retained by the people." The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.".

You are correct. The Constitution constrains government power, not individual rights. It is pretty clear from historical evidence that the Founders in no way wished to suggest that individual rights were solely limited to what was presented in the Bill of Rights. That was, in fact, one of the arguments against the BOR -- that people would think that anything not mentioned in it was not, in fact, a right.

27 posted on 06/30/2003 6:49:30 AM PDT by RogueIsland
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To: Puddleglum
So you believe slavery required a constitutional amendment to end it? You don't believe that the presumption of personal liberty except for a compelling interest by the state was enough?
28 posted on 06/30/2003 6:51:28 AM PDT by GraniteStateConservative (Putting government in charge of morality is like putting pedophiles in charge of children.)
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To: Burkeman1
He's right though. If the judiciary can come up with a "penumbra" to say that gun control is A-OK, despite the reams of evidence otherwise, then there is ample precedent for the government to have "vested interest" in making sure you ain't bein' queer in yer' bedroom. Especially considering our current national state of emergency and the PATRIOT Act provisions for wire tapping and "sneak and peek" searches.
29 posted on 06/30/2003 6:52:36 AM PDT by Dead Corpse (For an Evil Super Genius, you aren't too bright are you?)
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To: dixierat22
Hey you stole my post before I posted it!
30 posted on 06/30/2003 6:53:07 AM PDT by GraniteStateConservative (Putting government in charge of morality is like putting pedophiles in charge of children.)
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To: madprof98
bump
31 posted on 06/30/2003 6:56:04 AM PDT by VOA
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To: Dead Corpse
Laws are made to protect the lives of "good people" which should be everyone but unfortunately we know different.
32 posted on 06/30/2003 6:56:51 AM PDT by Sacajaweau (God Bless Our Troops!!)
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To: Sacajaweau
Laws should only be about protecting "equal" Rights. "Good People"? Define "good".

Seriously though, Force, Fraud, Theft. Anything else is illogical and morally questionable.

33 posted on 06/30/2003 6:58:32 AM PDT by Dead Corpse (For an Evil Super Genius, you aren't too bright are you?)
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To: sweetliberty
No sooner than it was handed down, homosexual sex offenders are released from prison,

Provide evidence that one sex offender has been released from prison based upon the SCOTUS decision.

34 posted on 06/30/2003 7:01:23 AM PDT by HurkinMcGurkin
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To: solomangrundy; Admin Moderator
Welcome to FreeRepublic! Supposedly counterfeiting is okay, too, as long as it's done behind hallowed closed doors.
35 posted on 06/30/2003 7:02:12 AM PDT by Cultural Jihad
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To: GraniteStateConservative
So you believe slavery required a constitutional amendment to end it? You don't believe that the presumption of personal liberty except for a compelling interest by the state was enough?

Only in that the original Constitution made explicit reference to slaves (sometimes as "other persons").

36 posted on 06/30/2003 7:03:43 AM PDT by kevkrom (Dump the income tax -- support an NRST!)
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To: solomangrundy
Don't think that's not already on President Hillary's agenda.
37 posted on 06/30/2003 7:04:19 AM PDT by GraniteStateConservative (Putting government in charge of morality is like putting pedophiles in charge of children.)
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To: Cultural Jihad
Can't rebut his post so you call in the admin mod. You coward.
38 posted on 06/30/2003 7:04:25 AM PDT by Dead Corpse (For an Evil Super Genius, you aren't too bright are you?)
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To: Cultural Jihad
The state has a compelling interest to secure its money supply.
39 posted on 06/30/2003 7:06:28 AM PDT by GraniteStateConservative (Putting government in charge of morality is like putting pedophiles in charge of children.)
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To: GraniteStateConservative
It's not expressed because it's assumed in several amendments like the 4th and 5th.

I will agee with you that it is assumed, but I would be a lot happier if it was spelled out so no one could mess with it.

So9

40 posted on 06/30/2003 7:09:46 AM PDT by Servant of the Nine (A Goldwater Republican)
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To: GraniteStateConservative
So you believe slavery required a constitutional amendment to end it? You don't believe that the presumption of personal liberty except for a compelling interest by the state was enough?

I think the Constitution required a Constitutional amendment to end it, since the founders clearly knew about slavery when the document was written and still thought the document expressed their beliefs on individual liberty. I think the issue was recognizing slaves as full humans beings, not property. I think this "evolution of the zeitgeist" and understanding of human nature and liberty as applied to slaves needed to be resolved by an amendment, not judicial fiat - because the Constitution spoke ambiguously on the issue.

If it was the intention of the Federal government to federalize the issue, and dictate to states, then yes, it needed an amendment to justify the federal intervention, since the Constitution and the intention of its drafters was at best ambiguous, and at worst expressed tolerance for slavery.

The slavery analogy applies to the growing acceptance of sodomy as a state of human being, which the court has decided to resolve by fiat, rather than defering to the constitutionally-proscribed amendment process.

Let me add as a caveat that this is my own, non-Constitutional lawyer opinion. That said, an education in Consitutional Law does seem to always sharpen a person's wits much.

41 posted on 06/30/2003 7:11:20 AM PDT by Puddleglum
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To: Dead Corpse
Some people depend on the police for their protection. In fact, one reason Nazi Germany was as successful as it was at what it did, is because personal grudges could be settled by having one of the parties to the dispute call the Gestapo, who would jutifully and "lawfully" haul the other party away to jail. Lots of busybodies, lots of informants, and the trains ran on time. I wonder if anyone today pines for that sort of world again.
42 posted on 06/30/2003 7:12:00 AM PDT by coloradan
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To: All
Did the founders ever mention a right to privacy? Was the right to privacy ever mentioned by the spreme court before Griswold?
43 posted on 06/30/2003 7:12:01 AM PDT by stop_fascism
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To: Dead Corpse
It is not cowardice to point out one of your fellow moral-liberals who comes to preach and to proselytize sodomy on Jim's server. But then the infantile anarchists do call for a ban on consequences to actions, eh?
44 posted on 06/30/2003 7:12:50 AM PDT by Cultural Jihad
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To: Servant of the Nine
How about, instead of trying to right an Amendment to ennumerate all of our Rights, we just NOT give the power to legislate in that area to our Government? A lot easier don't you think? At least as long as we can keep our legislators on the up-and-up.
45 posted on 06/30/2003 7:13:14 AM PDT by Dead Corpse (For an Evil Super Genius, you aren't too bright are you?)
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To: coloradan
Some people depend on the police for their protection.

52%, and growing, of our population is on some form of government assistance. How long do you think we can survive on that trend before hitting "Galt's Gulch"?

46 posted on 06/30/2003 7:14:59 AM PDT by Dead Corpse (For an Evil Super Genius, you aren't too bright are you?)
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To: madprof98
Our society is laissez-faire, ie, we will not act against the homosexuals until a substantial subset of us have been victimized.

Then the bloodbath will begin.


BUMP

47 posted on 06/30/2003 7:17:31 AM PDT by tm22721 (May the UN rest in peace)
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To: Servant of the Nine
9th Amendment: The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

Right to Privacy didn't have to enumerated according to the 9th. I have a right to discourage busy bodies, whether that be my neighbor or my local thug complete with gun and badge!

I'm not surprised many don't get this. Blackbird.

48 posted on 06/30/2003 7:17:34 AM PDT by BlackbirdSST
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To: Cultural Jihad
" Forget the arsenic cocktails, Dr. Kevorkian; just prescribe sodomy to your patients, in the privacy of their own homes of course."

...And don't forget the cyanide-tipped payload...

49 posted on 06/30/2003 7:17:34 AM PDT by F16Fighter (What color pants-suit did Hitlery wear today?)
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To: madprof98
He did not call into question a few of our rights, or some of our rights, but most of our rights.

Jay Bookman is the deputy editorial page editor for the AJC - which editorialized in FAVOR of campaign finance reform. Funny how the AJC can want to limit an ENUMERATED right - while getting after Scalia for trying to stick to only those enumerated rights. What a bunch of rank hypocrites.

50 posted on 06/30/2003 7:18:46 AM PDT by dirtboy (Not enough words in FR taglines to adequately describe the dimensions of Hillary's thunderous thighs)
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