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Lawrence Behind Bars: Conservatives vs. privacy.
National Review ^ | July 7, 2003 | Deroy Murdock

Posted on 07/07/2003 11:46:14 AM PDT by Lurking Libertarian

July 7, 2003, 9:10 a.m. Lawrence Behind Bars Conservatives vs. privacy.

Last month's Supreme Court Lawrence ruling blew some gaskets among social conservatives. Even more than in the University of Michigan racial preference case, the reaction to the Lawrence et al v. Texas ruling (which vacated the Lone Star state's sodomy law) has been especially heated.

The Supreme Court "magically discovered a right to privacy that includes sexual perversion," Jan LaRue of Concerned Women for America complained to USA Today.

"This is a lamentable outcome," Rev. Rob Schenk, president of the National Clergy Council, told the New York Daily News. "The Court has said today that morality, matters of right and wrong, do not matter in the law."

The editors of Crisis magazine called Lawrence "the most damaging decision handed down since Roe v. Wade."

These particular activists, at least in these remarks, make no mention of the fact that, under the Texas statute, John Geddes Lawrence and Tyron Garner were thrown in jail for private, consensual sex inside the bedroom of Lawrence's private apartment.

Most of the social-conservative commentary attacking the Lawrence decision scarcely acknowledges this ugly fact or, even worse, blithely skips right past it.

Perhaps socio-cons are uncomfortable facing the consequences of their beliefs.

Sodomy laws differ from the acts of religious people or traditionalists who grind their teeth as gay-pride parades march by. If these Americans wish to erode their molars in silence, quietly pray for the souls of gay people or loudly wave picket signs denouncing homosexuality, they are perfectly free to do so. And if it makes them feel better, go for it.

However, the now-powerless anti-sodomy laws that socio-cons support allowed adult taxpayers to be arrested, jailed, tried, and punished.

After spending a night in custody, Lawrence and Garner were released. After appearing before a judge, they each were forced to pay a $200 fine and $141.25 in court costs. At least until the Supreme Court's June 26 ruling, they also were required to register as sex offenders in four states. In addition, their humiliation — having been dragged outside in their underwear and tossed into a Harris County Sheriff's squad car — surely was incalculable.

If they were in public, if children were involved, or if Lawrence had a revolver at Garner's neck, even worse punishments would have been appropriate. Of course, no such circumstances pertained in this case.

Critics of the Lawrence decision say the people of Texas should have been allowed to vote to overturn this law, or at least do so through their legislature. But what if the majority of Texans still disapproved of what happens in Lawrence's bedroom and others like it? Do social conservatives sincerely applaud a law that would permit the police to come in, say, once a week and re-arrest Lawrence and Garner each time the cops caught them engaged in sodomy while, by the way, leaving unmolested the heterosexual residents of the very same building who happen to enjoy non-procreative, genital-anal sex?

The whole concept of minority rights demands that majorities not use political power to quash the liberties of minorities, so long as members of such minorities do not harm the lives, liberties, or property of others. It is impossible to see precisely who Lawrence and Garner threatened while they were indoors, in Lawrence's apartment. Can any defender of the Texas anti-sodomy statute identify anyone Lawrence and Garner jeopardized?

If social conservatives really believe American adults should be placed in jail for private, voluntary sexual behavior, they at least should be honest enough to admit openly that they desire a system in which grown-up homosexual taxpayers can be arrested and thrown behind bars for such activity.

— Mr. Murdock is a columnist with the Scripps Howard News Service.


TOPICS: Constitution/Conservatism; Crime/Corruption; Culture/Society; News/Current Events
KEYWORDS: deroymurdock; lawrencevstexas; privacy; sodomy
Another view.
1 posted on 07/07/2003 11:46:14 AM PDT by Lurking Libertarian
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To: Lurking Libertarian
Thanks for the post.

Perhaps socio-cons are uncomfortable facing the consequences of their beliefs.

You'll have some on here laughing "where are the sex police?" when this comes up. That's akin to saying "Where are the XYZ police?" by a Soviet citizen under Stalin. There's no sex police, but The State can use it against you if you appear too uppity for their tastes.
2 posted on 07/07/2003 11:52:14 AM PDT by lelio
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To: Lurking Libertarian
The problem I have, like many others, with the privacy ruling, is that most criminal and immoral acts occur in private. Evil hates the light!! If we decide that doing it (in a Clintonesque sort of fashion it now depends what the meaning of 'it' is) in private, makes it OK, we are in real trouble on a lot of fronts.

There is no right to privacy in the constitution because the framers understood that whether you do it in private or not does not change the nature of the activity. Private viewing of child porn, private incest, private bestiality all have the same consequences as the same activities performed in public.

The privacy rule was originally invoked in relation to the womans right to an abortion. Is a child killed in private less dead than one killed in public? Is a hooker that performs in private better than one that performs in public? Is a bamk robber that steals via the internet from the privacy of his 'own bedroom' less guilty than one who steals directly from the bank?

I think our Supreme's should be reduced to the status of Pips.
3 posted on 07/07/2003 11:56:38 AM PDT by RichGuy
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To: lelio
Count me among those laughing.

No arrest was made because of spying.

4 posted on 07/07/2003 11:58:05 AM PDT by wideawake (God bless our brave soldiers and their Commander in Chief)
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To: RichGuy
Thank you.
5 posted on 07/07/2003 11:58:43 AM PDT by wideawake (God bless our brave soldiers and their Commander in Chief)
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To: Lurking Libertarian
These particular activists, at least in these remarks, make no mention of the fact that, under the Texas statute, John Geddes Lawrence and Tyron Garner were thrown in jail for private, consensual sex inside the bedroom of Lawrence's private apartment.

Most of the social-conservative commentary attacking the Lawrence decision scarcely acknowledges this ugly fact or, even worse, blithely skips right past it.

I think Thomas' dissent summed it up nicely.
I write separately to note that the law before the Court today "is ... uncommonly silly." ... If I were a member of the Texas Legislature, I would vote to repeal it.
Thomas understood that the job of a Supreme Court justice is not to weigh the merits of a law, but rather if the law is Constitutional or not. It is not a matter of not 'acknowledging' an 'ugly fact'. It is that under the separation of powers, the wisdom of a law is for the Legislature to decide. If the penalty is too harsh, or if there should be a penalty at all, is the Legislature's job.

Judicial activism, even when done from a libertarian perspective, undermines the Constitution by making it depend on the whims of a handful of people.

6 posted on 07/07/2003 12:00:47 PM PDT by William McKinley (My new blog that no one cares about can be found at http://williammckinley.blogspot.com)
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To: Lurking Libertarian
"In addition, their humiliation — having been dragged outside in their underwear and tossed into a Harris County Sheriff's squad car — surely was incalculable."

This is a joke, right?

7 posted on 07/07/2003 12:12:47 PM PDT by Pietro
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To: Pietro
This is a joke, right?

No; what makes you think it is?

8 posted on 07/07/2003 12:31:24 PM PDT by Lurking Libertarian (Non sub homine, sed sub Deo et lege)
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To: Lurking Libertarian
The whole concept of minority rights demands that majorities not use political power to quash the liberties of minorities, so long as members of such minorities do not harm the lives, liberties, or property of others.

Bingo!

9 posted on 07/07/2003 12:36:17 PM PDT by HurkinMcGurkin
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To: RichGuy
The problem I have, like many others, with the privacy ruling, is that most criminal and immoral acts occur in private. Evil hates the light!! If we decide that doing it (in a Clintonesque sort of fashion it now depends what the meaning of 'it' is) in private, makes it OK, we are in real trouble on a lot of fronts.

The Supreme Court's "privacy" rulings have never turned on whether or not something is done "in private" (i.e., secretly) so much as they have carved out certain spheres that are "private" in the sense of not being subject to public control-- things that each person can decide for himself without having to answer to anyone else. Whether or not abortion belongs in this category is another question, however.

10 posted on 07/07/2003 12:45:48 PM PDT by Lurking Libertarian (Non sub homine, sed sub Deo et lege)
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To: Lurking Libertarian
the police had been called to this same house on at least four occasions during which time the perps continued to engage in sexual activity in front of these officers.

In the first place if they had any sense of humility they would have stopped in the presence of strangers (wouldn't you?).

And secondly, IMO, they wanted to be arrested for the singular purpose of opposing this law. That can be a justified action as a form of civil protest, however if that were the case then humiliation would have been the furthest thing from their minds. I rather believe they would have been quite proud, certainly their actions demonstrate this.

11 posted on 07/07/2003 1:02:58 PM PDT by Pietro
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To: Pietro
the police had been called to this same house on at least four occasions during which time the perps continued to engage in sexual activity in front of these officers.

Source? That wasn't in the article, or in the Lawrence opinion. If that's true, your point is well-taken.

12 posted on 07/07/2003 1:05:48 PM PDT by Lurking Libertarian (Non sub homine, sed sub Deo et lege)
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To: Pietro
Do social conservatives sincerely applaud a law that would permit the police to come in, say, once a week and re-arrest Lawrence and Garner each time the cops caught them engaged in sodomy while, by the way, leaving unmolested the heterosexual residents of the very same building who happen to enjoy non-procreative, genital-anal sex?

Do thry?

13 posted on 07/07/2003 1:11:36 PM PDT by RJCogburn ("Who knows what's in a man's heart?".....Mattie Ross of near Dardenelle in Yell County)
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14 posted on 07/07/2003 1:27:18 PM PDT by Support Free Republic (Your support keeps Free Republic going strong!)
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To: Lurking Libertarian
The fundamental difference between my view of the Constitution and the author of this column is this:

I believe that the Constitution means what it actually says, that it forbids only what it says it forbids to the States -- and, unfortunately, that some clearly unjust things will NOT be forbidden.

To me, that corollary fact shows that the Constitution should be amended or the unjust state law repealed, but it does not mean that the Constitution should have unwritten rights "read into" it by the Supreme Court. (That is not to say that the Justices could not use their station to rail against a stupid-but-not-unconstitutional law. They could, as Justice Thomas did in his separate Lawrence dissent.)

To the author of the column, there need BE no actual written Constitution at all, for, to him, the Court should simply do That Which It Deems Just. And indeed the Texas law may be considered unjust. But nothing in the Constitution bars such a law ... so ... it appears that the Court, in that writer's view, should not be an impediment if the law is really repugnant.

I do cringe at one downside to my approach: it can mean unjust laws remaining on the books for decades until they fall under the weight of the democratic process. It is soooo sorely tempting to wish some black-robed Olympians would just zap such laws instantly, obviating the need for fighting those decades of fighting.

But when that occurs, as it did in Lawrence -- and I stress that I think Texas's law was unjust and will lose no sleep over its demise -- is the result possibly even worse for our constitutional system?
15 posted on 07/07/2003 1:48:51 PM PDT by pogo101
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To: RichGuy
"There is no right to privacy in the constitution..."

There isn't?

Amendment IX

"The enumeration in the Constitution of certain rights, shall not be construed to DENY OR DISPARAGE others (rights) retained by the people."

I would say the right to privacy is a "...others (right) retained by the people."

See Griswold v Connecticut, Justice Greenberg's concurring opinion.

I would agree that the "right to privacy" does not emanate from the 14th amendment as the Supreme court has ruled since Griswold v Connecticut.

16 posted on 07/07/2003 5:38:43 PM PDT by tahiti
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To: tahiti
Perhaps a better way for me to have phrased my comment was, there is no right to privacy specifically enumerated in the constitution.

Those rights not enumerated should not be the subject of federal laws. They were intended by the framers to be protected from the establishment of federal laws involving them. Therefore a state anit-sodomy law is not unconstitutional. If the constitution specifically enumerated a federal right to privacy, the court could legitimately claim the right to rule as it did.
17 posted on 07/08/2003 7:08:33 AM PDT by RichGuy
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To: RichGuy
"Therefore a state anit-sodomy law is not unconstitutional."

I will let Justice Goldberg reply to your remark:

"While the Ninth Amendment - and indeed the entire Bill of Rights - originally concerned restrictions upon federal power, the subsequently enacted Fourteenth Amendment prohibits the States as well from abridging fundamental personal liberties. And, the Ninth Amendment, in indicating that not all such liberties are specifically mentioned in the first eight amendments, is surely relevant in showing the existence of other fundamental personal rights, now protected from state, as well as federal, infringement. In sum, the Ninth Amendment simply lends strong support to the view that the "liberty" protected by the Fifth and Fourteenth Amendments from infringement by the Federal Government or the States is not restricted to rights specifically mentioned in the first eight amendments. Cf. United Public Workers v. Mitchell, 330 U.S. 75, 94 -95.

I strongly suggest you read Justice Goldberg's concurring opinion in Griswold v Connecticut to understand the logic and reason for the inclusion of the 9th amendment to the Bill of Rights.

18 posted on 07/08/2003 10:30:55 AM PDT by tahiti
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To: tahiti
Are you sayiing that you consider privacy a fundamental personal liberty? I ask because my original point was that it clearly is not. Privacy could shield many an illegal action. Freedom from unreasonable search or seizure is clearly identified as a fundamental personal liberty that we have, however, in the case where criminal behavior is reasonbly believed to be happening this rule does not apply. What the courts have done is established that privacy precludes the states even having certain laws.

The problem with the belief that there is a fundamental right to privacy that trumps the laws of the state is in defining where this privacy ends and the laws again take precedence. The courts have now stated that homosexual sodomy is a privacy issue that trumps the law. They will soon be asked to draw the new line. My concern is that they are drawing such a line based on the 'discovered' right to privacy rather than on an actual constitutional basis.
19 posted on 07/08/2003 12:39:16 PM PDT by RichGuy
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To: RichGuy
"Privacy could shield many an illegal action."

What is "illegal action?"

Not wearing a seat belt? Smoking a cigarette? Home schooling your children? Having as many children as you want? Not wearing a helmet when you ride a motorcycle? Using the word "nigger" or "honky" in your home when talking to a friend? Eating the food of your choice and as much as you like? Taking the drug of your choice for cancer treatment whether FDA approved or not?

These are all personal and consensual decisions made by free individuals enjoying the spoils of liberty. All of the examples above that are prohibited by government are a violation the 9th amendment, the unenmerated right to privacy, retained by the people.

Illegal action is a violation or as the Ten Commandments state, a coveting of another person's life, health, or property without their consent.

That action is no longer the right of privacy and never would be advocated as such and never was a right of privacy.

The right of privacy is to be "left alone" as Justice Greenberg stated.

20 posted on 07/08/2003 7:03:27 PM PDT by tahiti
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To: Lurking Libertarian
sorry I'm getting back to you so late but I've been busy etc, etc.

I've also been trying to source the comment about prior police visits to the perps home which I heard on a talk radio show (Doug Hoerth in Pgh). I can't find anything other than a vague mention of a weapons charge against one of the individuals, so I'll step down from that.

But, my two points still stand 1) had they any humility they would have stopped their sexual activity when strangers entered the room and 2)there is a strong likelihood that they wanted to be caught in order to challenge the law.

This second point is referenced in a footnote in the amicus brief filed by Shackleford for the Texas state representatives:

"2 It is rare indeed for an “anonymous” caller making a false report to conveniently wait for the police to show them directly to the room where the anal sex was occurring, knowing his identity and the false report would be discovered. These facts strongly suggest that the men engaging in anal sex desired to be “caught” by the police for the very purpose of challenging this law. It appears that petitioners’ privacy argument lacks factual merit. Pg 17 Footnote 2 "

This case has been presented as the "state" bursting, uninvited, into the privacy of a citizen's home, when in fact the entry into that home was a proper response of law enforcement acting upon a reported threat to safety.

But then that is typical of liberal activism; lies don't matter when there's an agenda at stake.

21 posted on 07/09/2003 5:15:55 AM PDT by Pietro
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To: RJCogburn
"Do thry?"

You're equating homosexuality w/ heterosexuality. I don't.

Frankly, I don't care what homosexuals do, but I'm sick beyond description of their parading their perversions and pushing an agenda that is literally poisonous to individuals as well as the society at large.

As a libertarian you no doubt chafe at the thought that a society should have moral standards, but are you really prepared to live in a completely amoral society? And if not what moral boundries would you hold to?

Activists are enthusiastically in favor of these manufactured petty rights like "privacy" even as the true and substantial rights, unalienable and guaranteed, are consistently eroded.

The right to bear arms, freedom of religion, freedom of speech, and freedom of assembly are all under constant attack. The USSC runs roughshod over federalism and separation of powers and the defenders of "liberty" applaud.

Now we're all free to practice sodomy; oh happy day. You'll excuse me if I find your celebration pathetic.

22 posted on 07/09/2003 5:45:38 AM PDT by Pietro
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To: Pietro
Sorry for being unable to spell 'they'.

Beyond that, you misunderstand my ideas.

You're equating homosexuality w/ heterosexuality.

That is not so. Anybody, libertarian to the tightest social conservative can tell the difference. I would, however, say they deserve equal treatment under the law.

I'm sick beyond description of their parading their perversions.

I don't like it either.

As a libertarian you no doubt chafe at the thought that a society should have moral standards

Well it is early in the day, but that is the stupidest, most idiotic claim I have read today. As a matter of fact really stupid, really idiotic. Naturally society should have moral standards, but I don't agree we ought to have a taliban, or talibornagain imposition enforced by force of law.

23 posted on 07/09/2003 6:11:12 AM PDT by RJCogburn ("Who knows what's in a man's heart?".....Mattie Ross of near Dardenelle in Yell County)
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To: RJCogburn
"Naturally society should have moral standards..."

well, pardon my ignorance, I mean really really.

But what standards of morals would those be? The standards under discussion have been in place for millenium, if you intend to relax those please identify some new (lower) threshold. Preferably one that is a little more specific than "do as thou will".

24 posted on 07/09/2003 6:46:02 AM PDT by Pietro
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To: RichGuy
"our Supreme's should be reduced to the status of Pips."
"One day—it was in March, 1883—a letter with a foreign stamp lay upon the table in front of the colonel's plate. It was not a common thing for him to receive letters, for his bills were all paid in ready money, and he had no friends of any sort. 'From India!' said he as he took it up, 'Pondicherry postmark! What can this be?' Opening it hurriedly, out there jumped five little dried orange pips, which pattered down upon his plate. I began to laugh at this, but the laugh was struck from my lips at the sight of his face. His lip had fallen, his eyes were protruding, his skin the color of putty, and he glared at the envelope which he still held in his trembling hand, 'K. K. K.!' he shrieked, and then, 'My God, my God, my sins have overtaken me!'

"'What is it, uncle?' I cried. "'Death,' said he, and rising from the table he retired to his room, leaving me palpitating with horror. I took up the envelope and saw scrawled in red ink upon the inner flap, just above the gum, the letter K three times repeated. There was nothing else save the five dried pips. What could be the reason of his overpowering terror? I left the breakfast-table, and as I ascended the stair I met him coming down with an old rusty key, which must have belonged to the attic, in one hand, and a small brass box, like a cashbox, in the other.

"'They may do what they like, but I'll checkmate them still,' said he with an oath. 'Tell Mary that I shall want a fire in my room today, and send down to Fordham, the Horsham lawyer.'

(Source: "THE FIVE ORANGE PIPS", The Adventures of Sherlock Holmes by Sir Arthur Conan Doyle )


25 posted on 07/09/2003 6:58:27 AM PDT by bvw
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To: RichGuy
The Pips:

With Gladys Knight and some unnamed Personality

26 posted on 07/09/2003 7:19:51 AM PDT by bvw
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To: RichGuy
"to the status of Pips":

Magical Youth International

27 posted on 07/09/2003 7:25:54 AM PDT by bvw
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To: Pietro
I don't have a problem with the moral standards, in general, that are in place now. The coerced adherence to those standards by those who choose not to follow them and use neither force nor fraud on others in their 'immoral' actions is another matter. Recall, my original post was

[Do social conservatives sincerely applaud a law that would permit the police to come in, say, once a week and re-arrest Lawrence and Garner each time the cops caught them engaged in sodomy while, by the way, leaving unmolested the heterosexual residents of the very same building who happen to enjoy non-procreative, genital-anal sex?

Do they?]

So, are you applauding?

28 posted on 07/09/2003 8:24:25 AM PDT by RJCogburn ("Who knows what's in a man's heart?".....Mattie Ross of near Dardenelle in Yell County)
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To: tahiti
What the courts used to believe is that if a right was not enumerated in the constitution then it was left to the states and the people. Here is how Justice Thomas phrased it in his dissent, "If I were a member of the Texas legislature, I would vote to repeal it." But he saw the courts responsibility as being to "decide cases agreeably to the Constitution and laws of the United States." I am simply agreeing with his assessment.

If you find state laws governing actions not specifically allowed or forbidden in the constitution to be offensive, the remedy is at the state level. The constitution does not, in most cases, define who (either the state or the individual) has retained rights not usurped by the federal government. Therefore, in order to play at all in this issue the justices had to invent the right to privacy.
29 posted on 07/09/2003 8:25:52 AM PDT by RichGuy
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To: RJCogburn
"The coerced adherence to those standards by those who choose not to follow them and use neither force nor fraud on others in their 'immoral' actions is another matter."

Holy macaroni Batman, what the hell does that mean?

30 posted on 07/09/2003 8:49:15 AM PDT by Pietro
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To: RichGuy
I know the following article is a "long read" but the author has been my mentor on the subject of constitutional law and addresses your remarks about unenumerated rights, brilliantely, logically, and consistent with what the constitution actually says.

http://www.freerepublic.com/focus/f-news/943979/posts

31 posted on 07/11/2003 5:52:38 AM PDT by tahiti
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To: tahiti
That is a long read, but very interesting.

My problem with this read on the court is that it ignores the tenth ammendment which states that powers not delegated through the constitution to the federal government stay with the state and the people. The idea behind this was to limit the power of the federal government and leave the predominance of power with the states. Every time the federal supreme court over rules the state on an issue that is not enumerated in the powers portion of the constitution, what they are doing is unconstitutional.

Whether you are talking the right to privacy or the right to liberty, the power to make the decision was not delegated to the feds in our constitution. If the state legislature errs on such an issue, the state supreme court should rule. then the people and their state legislature should take action. Appealing state issues to the federal supreme court is what undermines the constitution.
32 posted on 07/14/2003 8:54:56 AM PDT by RichGuy
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To: RichGuy
"Every time the federal supreme court over rules the state on an issue that is not enumerated in the powers portion of the constitution,"

I think I see why you and I are not on the same page.

Yes, there are "enumerated" powers that our federal government is bound and limited by and they are not to be expanded by the Supreme Court. (For example, the "commerce clause" which it's jurisdiction was expanded by the SC in 1942 far beyond what the founding fathers intended. I am sure we would agree on that.)

But the Bill of Rights has both enumerated and unenumerated rights in which it is meant to protect and enhance.

Should we not be expanding our liberties? Should we not have to ask for permission to expand our liberties? Should laws not be "reviewed" by our Supreme Court under a presumption of liberty versus a presumption of constitutionality?

The 10th amendments significance as the repository for "state" power was diminished by th 14th amendment, which is the proper and constitutional procedure to diminish or deny enumerated powers.

33 posted on 07/14/2003 4:40:59 PM PDT by tahiti
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To: tahiti
I would not interpret anything in the 14th amendment as giving the US supreme court the option to overturn state laws. The 14th itself actually states "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States:" so we are back to having to define either homosexual activity or privacy as a privelege or immunity before the supremes can do what they have done.

I think we are in a loop that is common between people who believe that the constitution should control versus people who believe that the constitution as modified by supreme court rulings should control. I believe that we ought to take the words of the constitution liteerally.
34 posted on 07/16/2003 12:27:28 PM PDT by RichGuy
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To: RichGuy
"I believe that we ought to take the words of the constitution liteerally."

I could not agree any more enthusiastically then to say I agree 100% with your above statement.

That is why I am an unabashed advocate of the 9th amendment:

"The enumeration in the Constitution of certain rights, SHALL NOT be construed to DENY OR DISPARAGE others (rights) RETAINED BY THE PEOPLE."

There is absolutely no ambiguity in the meaning of the 9th amendment. Shall not, means shall not. Retained by the people means retained by the people. Not retained by the people, except those rights that federal or state governments want deny or disparage because that is what the majority of the citizen want.

35 posted on 07/16/2003 3:37:08 PM PDT by tahiti
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