Scalia: What a massive disruption of the social order this ruling entails.

US Supreme Court ^ | June 26, 2003 | nwrep

[irish_links]

"...I do not trust the government as you do...."

I have no faith in government. But, I abjure my right to complete freedom in order to live in a society governed by the rule of law and not the tyranny of men.

One of the pillars of our society, ruled by law and not men, is the concept of Federalism. Federalism allows each of the several states to work out on its own the nitty, gritty details of what body of laws makes for a good society.

Some of the states will lean toward a libertarian approach that you seem to prefer. Others will opt for a body of law that deems to guide the moral behavior of its citizens. Still others, like my State of Ohio, will search for something in between.

As a citizen of these UNITED STATES, I can choose which type of laws I wish my behavior to be governed by. That is, if I don't like the laws in the state in which I reside, I can act politically to change them or move to a place in greater harmony with my will.

In your world, I would be obligated to live under a set of laws that the powerful elite believes are good for me. I would have no say, through the power of my vote acting collectively with others who share my views, in the determination of the laws that govern me.

You may call that freedom. I don't.

[Skywalk]

It seems some would rather use the most expansive interpretation possible so that they can regulate anything you do that falls outside of listed rights.

Whether or not I agree with homosexuality or the agenda of the political left is irrelevant. People are really just mad about the homosexual aspect.

I guarantee you when it's a reach for them(in their brain) they'll be there cheering this same 'cabal' they curse now. Quite sad really.

[Skywalk]

So instead you'd be able to decide by majority vote any issue you damn well pleased, simply because you wish it that way.

Interesting, there are few protections under such an arrangement(besides the ones explicitly listed.)

[metacognative]

Every teenage..normal..boy knows that a a man looking at him as a girl would gives him the creeps. Their behavior is an un-natural perversion.
The battle is for control of this court!

[HurkinMcGurkin]

As a citizen of these UNITED STATES, I can choose which type of laws I wish my behavior to be governed by.

LOL!!! No, you want to choose laws to govern the behavior of OTHERS. People don't propose and pass laws to govern THEIR OWN behavior, because they have already chosen to "behave" in a certain way. The laws are for those who disagree. Just as no one censors speech they agree with.

In your world, I would be obligated to live under a set of laws that the powerful elite believes are good for me.

Uh, no, that's your world. The "powerfull elite" are the ones who make such laws pertaining to sexual behavior, drugs, guns, etc. - you know, the laws that govern private behavior!?

I would have no say, through the power of my vote acting collectively with others who share my views, in the determination of the laws that govern me.

Where do keeo getting this "govern me" idea? You want laws to govern EVERYONE ELSE who disagrees with you. Your view isn't about "self governance", its about the governance of those who see things differently than you. I mean, sheesh, are you going to move to Texas now and start having queer sex? Was the law the only thing stopping you? I hope not, or you suffer fron a severe case of projection.

[irish_links]

"...The 10th applies to the States, not the 9th.

The 9th only mentions the people...."

You've made a distinction without a difference. The IXth relates to rights and the Xth to powers. The concept of subsidiarity applies to both.

The two together reinforce the idea that the Federal government has no authority to deprive the people of a freedom that it has, which includes the power to pass laws that you do not like, but which otherwise do not deprive the citizens of said state of any right explicity set forth in the Bill of Rights or were otherwise recognized in the Common Law. (Note to Skywalk: as Scalia aptly demonstrates, no unlimited right to private personal conduct is so recognized).

The Constitution established a variety of ways that the several states could create new a right not recognized in the common law or explicity identified in the Bill of Rights. These include having the legislature pass a law or proposing a constitutional amendment and having it ratified by a super-majority of the states.

The Founders could have, but did not grant the federal courts the authority to invent new rights not expressed in the BoR or commonly granted in the Common Law. It certainly did not intend to permit the federal courts to invent such new rights and then impose them on the several states.

Granted, the language of the IXth and Xth is purposely vague, but the political apparatus established under the Constitution is not. It is a leap too far to suggest that the Founders intended these Amendments as a mechanism to give the federal government a special, extra-political power to establish new rights not recognized in the Common Law.

[irish_links]

"...So instead you'd be able to decide by majority vote any issue you damn well pleased, simply because you wish it that way.

Interesting, there are few protections under such an arrangement(besides the ones explicitly listed.)..."

Except the rights recognized under the Common Law. You remember that, the distilled wisdom of about 900 years of jurisprudence, not to mention 3,000 years of Western Civilization.

[GOPcapitalist]

I'm referring to the Constitution, NOT normal federal laws. Therefore, my point stands, and in fact that's what the Constitution is, by any interpretation.

And that begs the next question. Exactly how does the Constitution permit the courts to exercise power in the sodomy case, namely where do they get this so-called right of "privacy" from?

[irish_links]

"...So instead you'd be able to decide by majority vote any issue you damn well pleased, simply because you wish it that way.

Interesting, there are few protections under such an arrangement(besides the ones explicitly listed.)..."

You seem to have a lot of faith in the ability of nine unelected dictators to protect your rights. In a world governed by an unrestrained, tyrannical judiciary and not by law, anything is possible.

What would happen if the courts were to come under the sway of people who don't particularly like people who engage in whatever private conduct you like to engage in. Unrestrained by the obligation to follow the Constitution, the Common Law precedents and State Law, few obstacles would exist before such a tyrannical court if it chose to discover rights that could be dangerous to you. For example, the right of an individual to protect himself physically from an unwanted homosexual advance. (Not suggesting that I know anything about you, just an example).

There is clearly no such right in the Common Law or the Constitution. But in your world, the Supreme Court could dream it up, because a majority of its members think that it is right.

Be careful what you wish for. You might get it.

[Rodsomnia]

Gee I didn't see any latin in the Constitution. It's the corporate lawyer culture which is strangling America

[expatguy]

bump

[betty boop]

Many of his decisions would have been abhorrent to the Framers(though not all of them, I imagine.)

Skywalk, do you think the Framers would have approved of the idea of justices of the Supreme Court writing the moral code for our society?

[Dimensio]

A pretty high percent are HIV positive and can delay getting AIDS for years if they have very expensive anti-virals and the rest to delay AIDS

High percentage? I don't doubt that it's disproportionate to the heterosexual population, but how high are you saying? Also, do you consider homosexual males and females all together, or do you take into account that lesbians have a significantly lower infection rate?

Monogamy is not part of the gay lifestyle

Assumes that all homosexuals live in exactly the same way. I've met enough to tell you that this is false. I've met quite a few homosexuals who were non-monogamous (a worrisome amount), but I've also met homosexuals in totally monogamous relationships. Of course, someone can say "Well, they're just lying", which is really presumptious on their part.

how many of these "marriages" do you believe would actually have any fidelity?

I don't know. Do all heterosexual marriages have fidelity?

Do you honestly believe that they aren't going to use the spousal benefits?

Well, I assume that many want said benefits in order to use them.

Or if there was a clause that the government would recognize gay marriage but wouldn't impose insurance companies to comply with the spousal benefits, do you think the gays would accept it?

Probably not, because it would not be an equal arrangement.

[Dimensio]

Every teenage..normal..boy knows that a a man looking at him as a girl would gives him the creeps.

I would hope that a normal teenage girl would get the creeps from an adult man looking at her as a teenage boy would.

[Dimensio]

We had one praising Scalia's dissent in the Griswold case, which was a law prohibiting(or was it merely regulating) the use of contraception between a married man and his wife.

I don't think that Scalia was able to dissent in Griswold v. Connecticut (which in fact banned the use of contraceptives altogether) because he was not a Supreme Court Justice in 1968.

[metacognative]

at least you know normal...

[puroresu]

Skywalk, the ninth amendment doesn't grant any federally enforceable rights whatsoever.

There was some concern during the debate over the Bill of Rights about subjects that were not addressed. The Bill of Rights was designed to guarantee that the federal government could not restrict our rights, and several rights were specifically listed (free speech, freedom of assembly, etc.). There was worry that the federal government might assume that they could restrict rights not listed, by claiming that they were only banned from restricting those rights actually cited in the Bill of Rights' text.

The ninth amendment was drafted to solve that problem. It says that the enumeration of certain rights does not deny the existence of other rights retained by the people. However, note that the language is negative. It says the government (which meant the federal government, as the Bill of Rights was never intended to apply to the states at all) can't DENY the existence of other rights, whatever they may be. But it in no way grants the federal government the power to determine what those rights are, and to impose them on the states. Those rights are left to the voters and the state governments they elect for hashing out in the political process.

This is why it took constitutional amendments to ban slavery and give women federally guaranteed voting rights. Justice John Marshall couldn't "interpret" the ninth amendment as guaranteeing a right not to be enslaved. Nor could Justice Holmes decades later find a "right of women to vote" in the ninth amendment. They couldn't do that because there is no, as in ZERO, federal judicial power in the ninth amendment vis a vis the states. The whole purpose of the amendment was to keep the federal government, including the courts, out of the states on any matter where the Constitution was silent.

It required the feds to respect, for example, both Wyoming's law granting women the vote, and New York's law denying them the vote. If you didn't like one of those laws, your options were to change the law within the state in question, or get two-thirds of both houses of Congress and three-fourths of the states to amend the Constitution. The suffragettes did both, working state by state, and also working toward the 19th amendment, which eventually passed.

"Liberal" activist judges, however, have taken it upon themselves on abortion, sodomy, and many other issues to simply declare that they "found" a right to do those things hidden somewhere in some vague privacy concept, or whatever, and are using raw judicial power to impose their agenda on the country.

And, by the way, I've seen a few posts claiming that this "privacy rights" stuff can be used to overturn IRS regulations or gun laws. Not a chance in the world of that happening, because the judges only strike down laws they disagree with under this concept. It isn't a principle that's applied across the board. It's the whim of the judges. And the judges who created this "privacy right" are lefties who adore the IRS and love gun control, so "privacy" will never be invoked against them. It will only be invoked against traditional morality since legal sodomy and abortion actually cause government to expand, as I've mentioned elsewhere.

[puroresu]

Good stuff! You know your history!

[Bryan]

Any new statute prohibiting anal sex would have to apply to different sex couples and same sex couples equally. In addition, it would have to state protection of public health as its legislative purpose. Only then could it escape the shredders of Ginsburg, Souter, Breyer, Stevens and Kennedy.

Sexual Transmission

Of the sexual transfer mechanisms, the highest probability of transfer is clearly that of unprotected anal sex. Anal sex between an HIV positive male and an uninfected partner, either female or male, can result in transmission of the virus once in every three to ten sexual acts (1/3 to 1/10). That rests in sharp contrast to the probability of transfer through unprotected vaginal sex from an HIV positive male to an uninfected female (1/75 to 1/300), or the opposite transmission from an HIV positive female to an uninfected male through unprotected vaginal sex (1/300 to (1/1000).

Oral sex is also a mechanism of transmission, but the small number of verified cases of such transmission, and the fact that oral sex is often accompanied by other forms of sexual activity, make it difficult to estimate a probability. There do exist verified cases of oral sex transmission, both heterosexual and homosexual; the probability is low, but quite real. A recent report indicates that persons with allergies, asthma, eczema, and allergic meningitis are more susceptible to orogenital transfer, presumably because of the excess of lymphocytes responding to allergy-induced inflammations in the mouth and throat.

Anal sex is a more likely mechanism of transmission than vaginal sex, primarily because that part of the body, unlike the vagina, is not evolutionary adapted for the physical activity of sexual intercourse. Simply put, the lower end of the large intestine (rectum) is a thin-walled tube that breaks easily, bleeds when it breaks, and has a major supply of lymphocytes and macrophages (including the CD4 group) waiting to be infected by HIV.

From the perspective of functional anatomy, unprotected anal intercourse is biologically stupid! It is an open invitation to serious damage of the rectum as well as to the easy transfer of any sexually transmitted disease such as gonorrhea, syphilis, herpes, papilloma and Hepatitis B. Hepatitis B (for which there is a vaccine) is more easily transmitted sexually than HIV, and results in the death of some 20%-25% of those who acquire an infection.

http://www.arcmesa.com/pdf/hivfun0100.pdf

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[proud American in Canada]

Scalia bump!

Thanks for posting!