Lawrence v. Texas

[Emsworth]

Notwithstanding opebo's protests, there is neither any such thing as a constitutional right to privacy, nor any such thing as substantive due process. There was no basis for this unsound decision.

[Emsworth]

Why do you even pretend to be socially liberal?

What do my social views have to do with constitutional interpretation? Obviously, the Texas law was tyrannical and oppressive. But it is not unconstitutional.

[Emsworth]

So you don't seem to believe in the federal 9th amendment?

The Ninth Amendment only applies to the federal government. This case deals with a state law.

[Emsworth]

Federal amendments supersede state laws, you fool.

Go read Barron v. Baltimore. It is quite obvious that the Ninth Amendment does not apply to the states.

[Emsworth]

I don't know why you have such a high expectation of judges to follow the Constitution...

So you admit that this decision had no basis in the Constitution, and was merely judicial activism?

[Emsworth]

Legislators are supposed to do what is best for their all of their constituents, not just the ones that are popular.  If they fail to protect people's rights, then somebody has to step in and do their job for them.

The judiciary does not have the authority to step in whenever they feel that the legislators are not doing their jobs. This destroys the concept of the separation of powers that underlies our system of government. If the Governor feels that the legislature isn't doing its job properly, should he start passing new laws? If the state legislature feels that the courts aren't doing their jobs properly, should it start issuing its own rulings?

[Emsworth]

Why wouldn't the 14th amendment apply the 9th to the states?

Anything that is not an enumerated power of the federal government, is a ninth amendment right of the people. For example, the people have a ninth amendment right against regulation of intrastate commerce, because the federal government is only authorized to regulate interstate, foreign, and Indian commerce. Thus, it would not make sense to incorporate the ninth amendment with respect to the states, just as it would not make sense to incorporate the tenth amendment with respect to the states.

[Emsworth]

agree here.  Bowers v. Hardwick was based on a dumb law, yet it still had merit.  This law was ruled that only homosexuals are punished for sodomy (while heterosexuals can perform it without penalty).  Therefore the Equal Protection Clause was violated.

The Equal Protection Clause does not protect individuals from discrimination on the basis of sexual orientation. First of all, the text, history, and context of the Fourteenth Amendment suggest that no such protection exists.

Secondly, even the Supreme Court has failed to hold that the amendment subjects sexual orientation-based discrimination to "strict scrutiny." The much lower "rational basis" standard must be used; the test is quite easily passed by the law in question. (Of course, the concepts of strict scrutiny and rational basis are but phantasms erected by the Supreme Court, but that is another matter--the point is that O'Connor's concurrence is supported neither by the text nor by precedent.)

[Emsworth]

If it only protects black people, why is that not mentioned?

It can be reasonably argued that the clause prohibits discrimination on the basis of several different categories (race, ethnicity, nationality, citizenship, and the like). Extending the clause's boundaries to sexual orientation, however, would be much harder to justify.

For example, there would be nothing to stop a future court from legalizing the rape of small children under the so-called "right to privacy".

Rape harms the victim and thus rape cannot be justified under any sort of right to privacy.

My not wearing a seatbelt harms no one - can I use "right to privacy" to get out of a seatbelt ticket??

Mightn't one become a projectile if one is not wearing a seatbelt during a collision?

[Emsworth]

may I ask on what basis?  I mean, it was post-civil war era where the reconstuctionists didn't exactly put much thought into writing the amendments and legislation they passed.  However, if there was writing about the amendment, do you have a link to it?

My argument is not based on any specific writings, but on more general considerations.

In general, any part of a law should be taken literally, in accordance with its plain meaning, unless such an interpretation is patently unreasonable. Taken literally, the equal protection clause would mean that nearly all state laws are forbidden. Just about every law discriminates between people, dividing them into categories and treating one category distinctly from another. (A law against theft, for instance, "discriminates" against thieves; it does not treat them equally with other individuals.) Thus, the clause cannot be taken literally; a more restricted interpretation must be sought.

But then, which forms of discrimination shall we deem forbidden, and which allowed? It would be quite absurd, in my opinion, to say that the framers of the Fourteenth Amendment intended that the Supreme Court simply judge for itself whether a particular form of discrimination was justifiable or not--this would transform the Court into a board responsible for reviewing the subjective merits of state legislation. Thus, we are forced to conclude that the words "equal protection" encode a prohibition against certain specific forms of discrimination. There is absolutely nothing in the historical context to even suggest that discrimination based on sexual orientation was among them.