Another casualty of the SCOTUS decision on anti-sodomy law: US sovereignty

[rock jock]

In any event, the burden of proof -- in a free society -- is on the government to prove that something is not a right

It is not possible to prove a negative. Example: prove that I have no right to molest children, or beat my wife. You can't, because I can assert that I have that right. You must use a standard of permissable actions to decide what is allowable, or rather, what can be defined as a right.

The difference here is that no one can argue that another human's rights(*) are being infringed by a consensual sex act.

But, one can argue that certain behaviors are detrimental to society and therefore should be prohibited. In fact ,we already do this on a state-by-state basis with regard to prostitution. I don't know if the SCOTUS has ever ruled on a prostitution case, but I would interested in seeing the ruling in such as case.

Thus, if an action can be defined as an individual right – and privacy certainly can be – then states cannot infringe that action under the 9th/14th.

Privacy is not an action and just because an act is performed in private does not mean that the act itself is protected.

RvW hinges on whether you believe a fetus has rights that trump a woman's right to privacy in medical care.

Technically, RvW depends on the definition of "person". Currently, a fetus does not meet this definition. At another time in history, black people did not meet that definition either. Had privacy been used as a legal right in 1861, the Civil War might not have occurred and slavery may have lasted for several more decades.

Correct, though I'd point out that all rights are protected rights under the 9th/14th, even if not mentioned (enumerated) in the Constitution -- though they're not always protected in practice, unfortunately.

"All rights"???? Huh? What do you define as "all rights"? Is your list a personal one based on your own philosophy or a legal one?

 

[Tamara]

Example: prove that I have no right to molest children, or beat my wife.

Easy: Children have the right not to be molested and your wife has the right not to be beaten. Out of curiousity, where does one derive the right to tell one's neighbours how they may and may not make nookie when one isn't even present?

 

[rock jock]

where does one derive the right to tell one's neighbours how they may and may not make nookie when one isn't even present

Easy, a community has the right to set standards of decency. BTW, one may not be present when a prostitute is selling her wares next door, but one certainly has the right to object, and along with other members of the comminuty, prohibit such activity. Like I said, just because an act is committed in private does not make the act itself private.

 

[OF]

Easy, a community has the right to set standards of decency.

Uhhh...no. Individuals have rights, communities (through their government) have powers. A communities governments powers are derived from the authority that the community allows it's government, through the vehicle of the Constitution. The Constitution does not offer the community, via it's government, the power to regulate anything other than that which it has been empowered to regulate.

Show where the gov't, through the constitution, has been given the power to regulate how adults have sex in their own private homes.

You can't, because it's not there.

- Gabe

 

[cuchulainn]

It is not possible to prove a negative.

Not true. You are confusing a debate rule with logic.

You prove a negative by proving that something incompatible is posititive. For example, you can prove -- with your birthdate -- that you did not shoot Abraham Lincoln. See next comment for how this applies to rights.

You must use a standard of permissable actions to decide what is allowable, or rather, what can be defined as a right.

No -- in a free society -- the limitation is a standard of permissible areas for state restrictions. Everything else is a right by default. The state must prove that the action is something is within its legitimate powers to restrict. With that proof, it has proven the negative: the action is not a right.

Privacy is not an action and just because an act is performed in private does not mean that the act itself is protected.

No, privacy is actually a state of being. States of being are protected by the Constitution; for example: "The right of the People to be secure in their persons, houses, papers and effects against unreasonable searches and seizures..." (Amendment III).

Re: "just because an act is performed in private": To break the veil of privacy to stop an act, the state must show that the prohibited act (say murder or rape) rises to the level that triggers use of its legitimate powers.

However, you do not have the "right" to be given that state of being. You have the right to wellbeing, but the government (or others) do no owe you wellbeing. Welfare is wrong because it makes this mistake. The difference is that between "not taking away" and "giving."

But, one can argue that certain behaviors are detrimental to society and therefore should be prohibited.

Prove that consensual sex hurts society to a degree that legitmizes state power to break the veil of privacy and stop it.

"All rights"???? Huh? What do you define as "all rights"? Is your list a personal one based on your own philosophy or a legal one?

It is based on the 9th Amendment's assertion that there are rights beyond those enumerated.

I recognize that society has a claim to debating whether XYZ is a right -- I just allign with the side that says the burden of proof is on the state.

Perhaps getting a hummer hurts society to a degree that the state must break the veil of privacy to stop it. Prove it.

Technically, RvW depends on the definition of "person". Currently, a fetus does not meet this definition.

Yes. Thus, whether you think it is a person will govern whether you think it has rights that trump the mother's right to medical privacy. Sometimes rights trump other rights. You have the right to gather wealth, but another's right to life means you can't exercise that right by killing another to take his money.

 

[rock jock]

The Constitution does not offer the community, via it's government, the power to regulate anything other than that which it has been empowered to regulate.

Wrong. The Constitution does not stipulate what a community may regulate, only that which it may not regulate. Even then, "regulate" is somewhat ambiguous since the Constitution only uses terms like "shall not abridge, infringe, prohibit".

Show where the gov't, through the constitution, has been given the power to regulate how adults have sex in their own private homes.

See the comment above. Also, show where the govt has the right to regulate speed limits, or incestuous relationships, or drinking water standards, or..........you get the point.

 

[cuchulainn]

Wrong. The Constitution does not stipulate what a community may regulate, only that which it may not regulate.

Not true, but in any event, the Constitution does stipulate that the community may not regulate the unenumerated rights "retained by the People" (9th Amendment) -- this restriction on government power was applied to the states via the 14th Amendment.

(edited text for clarity)

 

[cuchulainn]

Also, show where the govt has the right to regulate speed limits, or incestuous relationships, or drinking water standards.

Who here claimed it does?

It might have those powers, but the burden is on those who claim it does.

 

[OF]

The Constitution does not stipulate what a community may regulate, only that which it may not regulate.

With all due respect, RJ, this is simply not correct. The government derives its authority from the people via the Constitution. The Constitution, very obviously, is the design for a gov't: it lays out how the gov't functions and what it may do. The body of the Constitution does not say anything about what gov't cannot do because the purpose of the Constitution is to give a gov't specific powers, a gov't that starts with zero powers - due to the fact that power rests with the people.

Then there is the Bill of Rights, which is not a list of your rights in total, it is a final safeguard against just the kind of thought you are proposing - that the gov't, which in the body of the Constitution was given specific powers by the people, is free to do as it pleases unless specifically prohibited from an action. This is opposite of how our gov't works (or rather, is supposed to work). Originally, there was debate that the BoR should not be included into the Constitution due to the fact that it may be eventually misunderstood to be a list of the only rights the people had.

All of your other examples (with the exception of speed limits, which are debatable) can be said to be fair game for gov't intervention solely because that gov't has within it's authority (it's charge) the power to protect the rights of the citizens. Some people who know a little bit about this have said that it is 'for this purpose that governments are instituted among men.' If someone is being done harm, the gov't can intervene on their behalf to secure their rights and punish those who violated them.

To say that gov't is all-powerful except for a few restrictions on a piece of paper is incorrect.

- Gabe

 

[cuchulainn]

Easy, a community has the right to set standards of decency.

That would be standards of public decency. This was an act done in private. Copulating in your front lawn violates public decency. Doing it in the kitchen does not.

BTW, are anti-prostitution laws based on decency?

 

[tyme]

SCOTUS sets public support for gay relations back 7 years

And the backlash...

http://www.usatoday.com/news/washington/2003-07-28-poll_x.htm

48% for allowing same-sex relations, 46% against. Lowest support since 1996.

 

[Sean Smith]

It is amazing the logical contortions some allegedly pro-liberty conservatives will go through just to keep those damn dirty queers under their thumb.

 

[longeyes]

unlikely bedfellows

More freedom from government interference is good for all of us.
The intellectual source that the Court uses for ensuring our individual
freedoms isn't the issue, it's what they rule. On this one they
were right.

 

[Robert inOregon]

The majority opinion specifically stated "individual right" instead of the liberal opinion of "right to privacy" for the first time since the New Deal. Randy E. Barnett wrote an article about Lawrence vs. Texas. Conclusion is that this case was ultimately a benefit to gun rights. If I had to choose between Randy E. Barnett or the inflammatory comments of some fringe group, I choose Barnett!

 

[Glock Glockler]

Before anyone starts using the 14th Amendment as the springboard for their arguement, I'd very much like to know the details of it's ratification. It is amazing the logical contortions some allegedly pro-liberty conservatives will go through to justify the legality of a decision using a law that was illegally passed.

If there is a defect in a state's laws, it should be corrected within that state, not running to Big Daddy Fed to tell us what to do.

Jim, you bailed on me in our 14th debate on the other thread, you won't bail here will you?