Santorum in defense of his beliefs - It is impossible for a law to be intolerant

[Ben Kenobi]

korn:

Fodder for another thread, but good points nonetheless I'll answer them here, but after this we should take this to another thread.

For the purposes of law, it does not make sense to punish people for what they think.

Morality, Christian morality in particular takes a different tack.

While I did say that who you are is not necessarily what you do, what you do will determine what you eventually become.

Does this make any sense?

You are entirely correct that Jesus emphasises the connection between our thought and our actions, that we have to address what we are thinking about before we can ever hope to deal with our actions. The sermon on the mount is a big part of this.

What it would be more accurate for me to say that your sexuality may be a part of you, it cannot define who you are in your entirety.

Your sexuality can change, while your identity does not.

Jesus still says that they will result in going to hell,

Indeed. At least he gives us a choice, we can decide which road we want to follow.

i'm joking, but I have a question, do you believe that people are born gay, or is it something else? do you think that they are demon possesed or at least under the influence of satan when they engage in gay acts? i'm just curious about your stand on this issue, i personally believe that people are born gay, that it is something biological

Are people born gay? That's a good question. I use an analogy with alcoholism. People can be born with a predisposition to drink, but this predisposition will not completely determine whether the person becomes an alcoholic. Certain environmental factors are also required.

Suppose you have someone who is an alcoholic raised as a strict Muslim? Without exposure to alcohol, this person will never develop and alcohol problem.

Secondly, even in an environment with alcohol, you will find some people who are alcoholics and some who are not, even with the same proclivities. That is really a function of will why they choose not to become alcoholics.

The same is with homosexuality. I think people are born with a proclivity to certain sexual activity, but that they also have the capacity to disregard this proclivity.

I bet that they are already doing it, and the law won't prevent this.

That's where the first part of my hypothesis comes in. When the state approves of homosexual marriage, it is likely that more people will be encouraged to practice, if from nothing than the increase in opportunity to practice. This is a cost you have to weigh when making such substantial changes to society.

[Imran Siddiqui]

Furthermore, the Constitution says Congress can REGULATE interstate commerce, not ban it.

Banning is a regulation... duh.

I know, but you then argued the states could deny us our rights.

If you want to go on the Framers, then yah, the states CAN deny the rights. Like you said, they never extended the Bill of Rights to the states, and the states didn't have to follow them until selective incorporation.

substantive due process derives from the premise that even if Congress can take away a person's right to life or liberty via trial, Congress cannot do it prior to conviction for a crime by simply outlawing our rights.

No, you are wrong. Substantive Due Process derives from the what the justices believe to be 'traditional notions of fair play and substantial justice'. Go ahead, read Lochner v. New York.

Congress could outlaw what it wanted, as long as the Constitution gave it the power and the Bill of Rights didn't say it couldn't.

Btw, most Subtantive Due Process law is on state regulations. Why are we going to allow unenumerated rights to triumph over the will of the people?

Let's think about this. The clause says you cannot deprive a person of life, liberty, and property without due process of law. This obviously means that life, liberty, and property CAN be denied if there is due process. If a law is passed restricting privacy (banning abortion, say), the ONLY way to enforce that law is through the legal system (better known as DUE PROCESS).

Btw, which rights should be protected and which shouldn't?

Though I'm still confused why a 'strict constructionalist' would back substantive due process. You must be the first.

So you're both wrong.

Actually we are both right.

I said they couldn't write a law depriving you of your right to life and then execute you for living.

Like I said, that's a Bill of Attainder.

Where in the Constitution have you found the phrase "state's rights"? Of course the issue of our uneneumerated rights was left up to the people and the states, THAT CHANGED with the 14th Amendment. That amendment took power away from the states and gave it directly to the people with Congress as our protector against state infringement.

So what you are saying is that after the 14th Amendment, states rights and federalism does not exist anymore? So Congress, under the idea of 'right to privacy', can legalize homosexual marriage all by itself?

When the Framers said no one can be deprived of life, liberty or property without due process (5th Amendment), did they mean Congress can write laws outlawing your life, liberty and property? No, they meant Congress could not take these from you without the constitutional authority which includes trial by jury. Substantive due process deals with whether or not the Congress has the constitutional authority to take our rights by writing future laws.

Actually they did, and Congress can. Death penalty statutes are laws that outlaw life if you do something. Eminent Domain is a legislative function that outlaws private property over the condemned area.

So, yes, Congress and state legislatures could invalidate 'rights' by statute. They still can... as long as those rights aren't protected by a majority of justices.

If Congress wanted you dead, can the Congress write a law saying you can't live and then - after a trial - execute you for living?

ONCE AGAIN: That's a Bill of Attainder, so no!

However, Congress can write a law saying that all drug dealers cannot sell their wares (ie, their property) and then, provided they sold drugs after the statute was passed, after a trial, lock them up for selling drugs. That IS Constitutional, so I have no idea what you are on about.

Where in the Constitution did you find "except for a good (compelling) reason? Does the 1st Amendment begin with the words, "Congress shall make no law, except with a good reason"?

Where in the Constitution do you find 'Substantive Due Process'? Due Process to me means right to a trial, not this legal fallacy that it means you can't make any law at all dealing with certain rights.

Of course, the court realized it was making things up, so it allowed these 'rights' to be circumvented with a 'compelling reason' by the state that was 'narrowly tailored' to the classification. Once it did this though, it allowed every fundamental right to be circumvented with 'compelling reason'. Classifications on gender only require 'intermediate reason'. Everything else is rational basis.

[Imran Siddiqui]

Yes there is, the 9th Amendment

Just about every single Constitutional scholar will tell you the 9th Amendment does not assert positive rights. So there is no 'right to marry' under the 9th Amendment. That 'right' exists under the made-up-out-of-thin-air Substantive Due Process.

[korn469]

obiwan18

if you want to create another thread about the first part of your post, i'll respond to it there (but most likely it'll be in the morning)

as for your position on people being born gay I can respect that, althought I don't completely agree with it, I will give you that since no definitive evidence exists either way afaik that what you describe is quite possible

That's where the first part of my hypothesis comes in. When the state approves of homosexual marriage, it is likely that more people will be encouraged to practice, if from nothing than the increase in opportunity to practice. This is a cost you have to weigh when making such substantial changes to society

The issue isn't gay marriage, it's sodomy, and I think there is a big difference between the two.

The way I see it marriage (as recognized by the state) is closer to a legal privledge such as having a legal right to practice medicine than a right, like the right to attend peacably attend any church you want though I think it falls somewhere in between. Allowing gay marriages is to me is granting benefits to people. Enforcing sodomy laws on the other hand takes away people's liberty. Sodomy has a specific target, homosexuals, and little to no justification on how it actually protects the public welfare from the consensual actions of adults, while similar actions of heterosexuals is completely legal; it appears to me that this is a highly intolerant law. Gays receive punishment for their sexual actions while straight people don't. That to me smacks of intolerance. It's one thing to prevent a group from gaining a privledge, that is debatable ground I think, but it is quite another to make a group forfeit its rights. The right to liberty is quite possibly the most important individual right a person has. I have yet to see any convincing arguments as to why gay sex should be illegal while straight sex remains legal. Since Santorum supports sodomy laws, he obviously supports imprisoning gays for violating these laws, and therefore he supports an intolerant position. What angered me, was that it appeared that he was taking the position, "I'm not intolerant because I support the law," with the implication that laws can never be intolerant, or racist, or sexist, or any -ist you can think of. To me history proves that laws aren't always neutral, and that they can be intolerant of a group, or unfair, or even unjust.

Also, Santorum makes his own strawman when he says that by not having sodomy laws everything will suddenly because legal. As far as I know gay sex is quite legal in California, while incest, polygamy, bigamy, and beastiality are all still quite illegal, so his entire argument is just another strawman. While I agree that making beastiality or necrophilia legal would increase it, I certainly don't think either would ever become mainstream sexual practices, nor would homosexuality even if all sodomy laws were repealed. If you truly believe in your alcoholic analogy, then you know that not everybody has gay tendencies, just as everyone doesn't have alcoholic tendencies. Since from a non-moral standpoint I don't seem any harm arrising from being gay I don't think legal gay sex would damage, much less destroy our society. In fact, the expense of investigating, prosecuting, and imprisoning practictioners of gay sex seems like it has a far greater negative impact on society.

[Berzerker]

Lincoln -

Berzeker, they are trying to have him removed from his leadership position because he voiced his opinion.

And? You said they were the thought police, are they trying to have him arrested because of his thoughts? No. Is he trying to have them arrested? YES. He wants them arrested and they want him to resign his leadership role in the Senate and you complain about them?

There is no escape from that conclusion regardless of semantics about what an "office" is. They are punishing him for expressing his views. Like I said, they are playing the part of thought police here.

Semantics? And he wants them put in jail, how you can even compare the two, much less conclude he is the tolerant one and they are intolerant is silly. "Thought police" is about criminalising opinions, not calling for someone to resign their leadership position in the GOP.

[Berzerker]

Imran -

Banning is a regulation... duh.

No, regulation within the context of the interstate commerce clause meant allowing for the free flow of trade, not banning trade. The Constitution would have never been ratified if the states knew they were giving Congress the power to shut down commerce. But given how you don't understand the difference between interstate and intrastate commerce, I'm not surprised to see you butcher that definition too.

If you want to go on the Framers, then yah, the states CAN deny the rights. Like you said, they never extended the Bill of Rights to the states, and the states didn't have to follow them until selective incorporation.

But that [selective] incorporation is part of the Constitution. You keep ignoring that when you claim the states can deny us our rights.

No, you are wrong. Substantive Due Process derives from the what the justices believe to be 'traditional notions of fair play and substantial justice'. Go ahead, read Lochner v. New York.

Which derives from the notion that Congress cannot outlaw liberty and property and then prosecute us for exercising our liberty and having property without constitutional authority.

Congress could outlaw what it wanted, as long as the Constitution gave it the power and the Bill of Rights didn't say it couldn't.

True, and? The Constitution says Congress can outlaw polygamy?

Btw, most Subtantive Due Process law is on state regulations.

That's because of the 14th Amendment.

Why are we going to allow unenumerated rights to triumph over the will of the people?

Because majority rule was condemned by the Framers and they gave us a republican system with a Constitution to limit the majority.

Let's think about this. The clause says you cannot deprive a person of life, liberty, and property without due process of law. This obviously means that life, liberty, and property CAN be denied if there is due process. If a law is passed restricting privacy (banning abortion, say), the ONLY way to enforce that law is through the legal system (better known as DUE PROCESS).

Gee, you didn't say "regulating" abortion after you claimed banning an activity is regulating an activity. Due process doesn't just mean the courts and trials, it means the Constitution too. If the Constitution doesn't give Congress the power to ban abortion, then Congress doesn't have the power and a law banning abortion violates the due process clause (substantive due process). Due process begins with the Constitution and legislation and ends with the courts and prisons.

Btw, which rights should be protected and which shouldn't?

All rights should be protected.

Though I'm still confused why a 'strict constructionalist' would back substantive due process. You must be the first.

Because I know what it means and it is perfectly in keeping with the 5th Amendment.

Like I said, that's a Bill of Attainder.

Bill of Attainder only means a trial and conviction are required to deprive someone of their rights.

So what you are saying is that after the 14th Amendment, states rights and federalism does not exist anymore?

No, the balance of power shifted with the states losing power and the people gaining power. Again, state's rights is a fiction, governments have powers, people have rights.

So Congress, under the idea of 'right to privacy', can legalize homosexual marriage all by itself?

Congress has no power to be involved at all, nor do the states (except with laws regarding inheritance, transfer of property, etc...

Actually they did, and Congress can. Death penalty statutes are laws that outlaw life if you do something. Eminent Domain is a legislative function that outlaws private property over the condemned area.

You aren't reading what I typed. The powers you mention are IN the Constitution, substantive due process deals with laws that are NOT authorised by the Constitution.

So, yes, Congress and state legislatures could invalidate 'rights' by statute.

Only if the Constitution(s) allows for the statutes.

They still can... as long as those rights aren't protected by a majority of justices.

Yes, but that doesn't mean the statutes are constitutional. If a majority of the SCOTUS said tomorrow that a law banning people from going to church was constitutional, that wouldn't mean they were right.

ONCE AGAIN: That's a Bill of Attainder, so no!

After a trial. What is your answer? According to the arguments you've made in this thread, Congress could execute you for violating a law that prohibited you from living as long as you were convicted in a court of law first. That's where substantive due process enters the picture...

Bill of Attainder means: A legislative act that singles out an individual or group for punishment without a trial.

So, what's your answer?

However, Congress can write a law saying that all drug dealers cannot sell their wares (ie, their property) and then, provided they sold drugs after the statute was passed, after a trial, lock them up for selling drugs. That IS Constitutional, so I have no idea what you are on about.

Aside from the fact Congress has no such power in the Constitution to ban the selling of drugs, what if Congress didn't like you and they passed a law that says you cannot live? Can Congress have you executed after you're tried and convicted of living in violation of the law?

Where in the Constitution do you find 'Substantive Due Process'? Due Process to me means right to a trial, not this legal fallacy that it means you can't make any law at all dealing with certain rights.

You didn't answer my question. But I'll answer yours, substantive due process is based on the 5th Amendment (and the 10th) and says that Congress cannot legislatively deprive us of life, liberty, or property without constitutional authority and then physically deprive us of life, liberty, or property after we are convicted in court. The laws Congress writes MUST have backing by the Constitution...

Of course, the court realized it was making things up, so it allowed these 'rights' to be circumvented with a 'compelling reason' by the state that was 'narrowly tailored' to the classification.

Lol, so the court that sought to reduce state power in favor of our rights created a loophole for the states to regain that lost power and take away our rights? Wrong, judges didn't create do this, the 14th Amendment did it by creating dual citizenship for the citizenry.

Once it did this though, it allowed every fundamental right to be circumvented with 'compelling reason'.

So you've cited a power that doesn't appear in the Constitution and complain about substantive due process which IS based on the 5th Amendment?

[DinoDoc]

I thought that you were a strict textualist when it came to interpreting the Constitution, Berz.

[Berzerker]

Obiwan -

I'll see if I can't find out some more about the current law against polygamy. I do believe the defense is rooted in the Constitution.

It isn't, the federal law was challenged by Mormons and the SCOTUS re-wrote the 1st Amendment to allow the law. The court said the phrase, "Congress shall make no law prohibiting the free exercise thereof (religion)" now meant only the freedom to have religious thoughts, not act in accordance with one's religion. Think about that! Congress could, according to the SCOTUS, prohibit churches and reading the Bible because those are actions. Many Christians claim the attack on religion is a rather recent phenomenon, they're wrong, "Christians" began using government to attack other people's religions more than a century ago. The irony is that what the SCOTUS said is no different than communism. You can have religious thoughts under communism too, just not the freedom to practice your religion.

We dealt with this already. How is encouraging slaves to leave their masters an endorsement of slavery?

Paul didn't encourage slaves to leave their masters. Can you answer my question now? If allowing polygamy means approving of polygamy, then did Paul approve of slavery when he allowed it?

Paul had a mission to build up the church, no sense in allowing the church to be crushed with actively freeing the slaves.

He didn't have to free any slaves, only condemn slavery instead of condoning it. Paul condemned all sorts of behaviors, but not slavery.

If he were to free the slaves, the slaveowners would simply get more. If he can convert the slaveowners, then slavery will end.

It won't by telling slaveowners that slavery is allowed by "Christianity", just treat the slaves well.

You quote the ninth amendment?

I can, but I'll paraphrase it instead. It says the enumeration of a handful of rights in the preceding amendments should not be used to deny or disparage the multitude of unenumerated rights retained by the people.

One of the defenses of monogamy is that it ensures equality for women. Most bigamous and polygamous relationships exist to the detriment of the woman.

That's up to the women to decide, not you or me. Btw, monogamy doesn't ensure equality. Ever hear the phrases, "barefoot and pregnant" or "a woman's place is in the kitchen"?

"The government, on the other hand, focused directly on polygamy. Attorney General Charles Devens stressed the individual and social inequities he claimed were inherent in a form of marriage that sacrificed the sensibilities of women at the behest of priests."

Interesting that the argument has not changed.

So you accept the opinion of the guy charged with enforcing the law banning polygamy and charged with convincing the SCOTUS to uphold the law? Would you also dismiss the opinions of the Mormon women who wanted their marriages kept legal? Btw, nothing there explains why the ban on polygamy was constitutional. I've known polygamists and this AG's opinion is BS, there is no inherent social or individual inequity in either polygamy or monogamy. I don't even know why you quoted him, that quote doesn't even try to identify the constitutional authority for banning the practice.

[Berzerker]

I thought that you were a strict textualist when it came to interpreting the Constitution, Berz.

I am, it's called the 5th Amendment which requires an understanding of "due process". Due process doesn't just mean getting a trial, it also means the Constitution must be followed by Congress when writing laws, and that's what substantive (the substance of) due process means.

[DinoDoc]

Originally posted by Berzerker
I am, it's called the 5th Amendment which requires an understanding of "due process".

Again, I fail to see how anyone with a reasonable grasp of grammar can interpret "Due Process" Clause of either the 5th or 14th amendment to assure anything but procedural rights.

it also means the Constitution must be followed by Congress when writing laws

I believe that's called judicial review and not Substantive Due Process.

[Sikander]

Originally posted by Imran Siddiqui
'Honorable' Senator, Guy?

Right.

[Sikander]

Originally posted by obiwan18

MtG:

I think your analysis is less than honest for Imran's point. Just because you disagree with Santorium in one thing, it does not mean that he is wrong on everything, particularly in the capacity of the law.

So please show me why this right to privacy cannot encompass polygamy as well as bigamy?

Because marriage is a public institution as well as a religious and personal one. The state already has a long stated interest in marriage, whatever its makeup. Thus all laws related to marriage including those that ban polygamy / polyandry can't be challenged (successfully) on privacy grounds as these are considered public contracts. You would be correct IMO if you were merely talking about relationships rather than marriages. I can live with as many women as I want, and in some states I can sleep with those women as well, and it's nobody's business but mine. But if I want to enter into marriage I have to play by the states rules in order to obtain those rights, privileges and responsiblitities guaranteed by the state for married people.

[Sikander]

Originally posted by Lawrence of Arabia
Thanks for the definition. And I agree, polygamy falls outside the traditional christian definition of marriage, but our government is supposed to be secular, meaning that they should accept all types of tradition and when it comes to marriage and that means mormon, muslim, raelian etc.

You assume that our (U.S.) traditions are based upon religion rather than on culture, which I think is a mistake. There's a fair deal of polygamy in the Bible, but it wasn't the way that the Western Europeans who founded this country did things, and this has remained the case thus far. Some Muslims think that it is their duty to kill Americans, but I doubt that you'd try to make the argument that we have to keep our hands off of them in order to allow them the free practice of their religion. The same is true with marriage, albeit in a less dramatic sense. Pairing people up is good for the economy and public order and for children. There's more than enough there for even a libertarian like me to see a compelling state interest in the subject.

[Sikander]

Originally posted by Imran Siddiqui

Not really. Government has power over you. It has power over giving you or denying you rights. If it decides to deny you rights it doesn't have to justify jack. YOU, on the other hand, have to justify to the government why it should give you certain rights.

And you have to justify to me exactly why I should let you live long enough to pass the bar!

[Imran Siddiqui]

No, regulation within the context of the interstate commerce clause meant allowing for the free flow of trade, not banning trade.

If they wanted free flow of trade they easily could have written that states are not allowed to interfer in interstate commerce (which the court found under the 'dormant commerce clause'). HOWEVER, they gave the federal government the power to regulate! Regulation means barriers. It's simple as that.

But that [selective] incorporation is part of the Constitution. You keep ignoring that when you claim the states can deny us our rights.

I know it is difficult for you to read, but I never said the states can take away enumerated rights. I said the states can take away unenumerated rights, which the founders would probably agree with.

Substantive Due Process includes these unenumerated rights and basically makes them as powerful as enumerated rights. This is a bastard reading of the 9th Amendment.... Hell, it really isn't a reading of the 9th. It's the 'penumbra' of rights argument.

Which derives from the notion that Congress cannot outlaw liberty and property and then prosecute us for exercising our liberty and having property without constitutional authority.

No it doesn't. I DARE you to find that line of reasoning in Lochner or Griswold, which created substantive due process.

And btw, you can easily do things without constitutional authority. Doing things AGAINST constitutional authority is the problem. Silence does not restrict the states or people.

Due process doesn't just mean the courts and trials, it means the Constitution too. If the Constitution doesn't give Congress the power to ban abortion, then Congress doesn't have the power and a law banning abortion violates the due process clause (substantive due process).

Congress can ban abortion by preventing hospitals or other institution from doing the act (commerce clause). Hospitals engage in interstate commerce.

A law against abortion violates substantive due process because 5 justices decided there was a right to abortion somewhere in the Constitution. If one majority justice went the other way, then it would be declared that there IS no right to abortion.

I'm glad you are in favor of legislating by the judiciary, but I'm not, and I'm sure most of your libertarian friends aren't either.

All rights should be protected.

REALLY?! So the court can decide tomorrow there is a 'right to healthcare' and thus the court must provide for it? After all, that is a 'right' recognized by plenty of countries (and the UN).

If not, then why not?

Because I know what it means and it is perfectly in keeping with the 5th Amendment.

Hmmm, an amendment that deals with the right to full procedure in a trial allows the Imperial Judiciary to declare that there are certain 'fundamental' rights that the states or congress can't touch?!

Sorry, can't see it... and neither did the court for almost 150 years (and after the 14th for about 50 years).

Bill of Attainder only means a trial and conviction are required to deprive someone of their rights.

Bill of Attainder means: A legislative act that singles out an individual or group for punishment without a trial.

ZZZZT! Wrong!

Bill of Attainders are bills that declare someone is guilty. You'd probably still go through a trial. You know, this why before the court invented substantive due process, the government could say, oh, being Thomas Jefferson from Virginia is a crime.

No, the balance of power shifted with the states losing power and the people gaining power. Again, state's rights is a fiction, governments have powers, people have rights.

People have no rights that the government does see fit to give them. The states sure didn't purposely want to give up all their rights and power, and neither did their represenatives in Congress.

The powers you mention are IN the Constitution, substantive due process deals with laws that are NOT authorised by the Constitution.

No it doesn't. Substantive due process deals with laws that some justices considered to be against the Constitution. Just because they believed it to be true, it doesn't mean they are. Of course, it is next to impossible to invalidate precedent these days.

If a majority of the SCOTUS said tomorrow that a law banning people from going to church was constitutional, that wouldn't mean they were right.

Exactly! And when a majority of SCOTUS says that a law against a made up 'right to privacy' was constitutional doesn't mean they are right.

Their decisions may always be constitutional, but they may not be correct.

Aside from the fact Congress has no such power in the Constitution to ban the selling of drugs, what if Congress didn't like you and they passed a law that says you cannot live? Can Congress have you executed after you're tried and convicted of living in violation of the law?

In addition to Bill of Attainder concerns, it would violate Equal Protection.

You may say that Congress has no power regulating drugs (ignoring the Commerce Clause, of course), but what about the states? What prevents them from doing so? A substantive due process right to property? Funny how the court hasn't said that's a protected right, ya?

Hmmm... maybe it is because the court simply makes up protected rights as it goes along?

substantive due process is based on the 5th Amendment (and the 10th) and says that Congress cannot legislatively deprive us of life, liberty, or property without constitutional authority and then physically deprive us of life, liberty, or property after we are convicted in court. The laws Congress writes MUST have backing by the Constitution...

a. No it doesn't. Due process simply means a fair trial.

b. Most of substantive due process applies to the states, who do NOT have to backing by the Constitution to pass a law. If they want, the states can do things (zoning laws) that the federal government cannot.

so the court that sought to reduce state power in favor of our rights created a loophole for the states to regain that lost power and take away our rights? Wrong, judges didn't create do this, the 14th Amendment did it by creating dual citizenship for the citizenry.

The 14th Amendment didn't create anything known as substantive due process. The court did by making it up to protect right to contract. Of course a few years later, the court said that was silly... but then a few decades later it brought it back up to protect personal rights. Yeah, I'm sure you know that the court says substantive due process doesn't apply to property rights (right to contract, etc).

And great loophole . Compelling reasons are soooo often found by the courts... didn't think so. Sometimes though, there just may be a really, really good reason for the state restrict a right, you know such as not stating that men have the right to abortion.

So you've cited a power that doesn't appear in the Constitution and complain about substantive due process which IS based on the 5th Amendment?

And 'strict scrutiny' IS based on the Equal Protection Clause. You want a total equal protection clause? I'm sure you'd love it when laws were struck down because men weren't covered under a state law requiring private hospitals to perform abortions.