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

[Sava]

The guy's a scumbag. 'nuff said.

[Imran Siddiqui]

what rights do we have by virtue of our liberty? Only those enumerated in the BoR?

Not just the BoR.. enumerated in the Constitution.

Notice how the left would have strongly opposed the application of substantive due process then?

Yeah, and so it sunk it. If you are not aware, West Coast Hotel has declared 'Economic Due Process' (of the sort you just listed) has NO protection in the Constitution.

Can you now NOT see why I consider Substantive Due Process to simply depend on the Justice's whims? How can such a varying standard be encapsulated in the Constitution? All Substantive Due Process depends on is whether the Justices think that the 'right' being asserted is worthy of Constitutional protection.

the states have their own constitutions limiting their power and the 14th Amendment obliged them to respect the BoR.

Yes, the state Constitutions and the 14th LIMIT state power. That doesn't mean the states have to 'justify' their laws as Constitutional before passage.

Unlike the federal government, which cannot due anything unless authorized, state governments can do ANYTHING unless restricted.

Congress doesn't want people getting fat, so they write a law requiring everyone exercise 5 hours every week (even if they can't). You say that violates your liberty even though you have no right (in the BoR, excluding the 9th Amendment and substantive due process of course) to not exercise. You're convicted in court of violating the law and punished.

Let's change it to be a state law (I don't think Congress' power would extend that far). Yes, it's valid. No objections.

Why him and not her? What if he did it for free? And since when does the transfer of money between two people living in the same state constitute interstate commerce?

Because a person who is in the medical profession, engages in interstate commerce to be able to set up and run his practice, therefore everything he does in it can be regulated. There is no evidence that the woman has ever engaged in interstate commerce.

Does a law banning you from smoking pot as part of your religion violate the Constitution?

No. Freedom of relgion isn't an absolute right.

Where in the Constitution did you find that gem, specifically?

Where Judicial Review is located . If the court can decide what law is unconstitutional, then that means its rulings are constitutional, right?

You're still avoiding my question. Can life, liberty or property be taken away for no reason other than congressional whim as long as you have a fair trial?

Yes, avoiding... the post you quoted before this statement:

Life, liberty, and property can be taken away if there is a fair trial.

Does that answer your question, moron?

I'm not expanding the due process clause, I'm using the simple logic that says if the 5th Amendment...

No you aren't. You are expanding the clause. The plain meaning of 'due process' is the right to a fair trial.

Yeah, Imran "New Deal" Siddiqui.

New Deal was a good thing. Never said the opposite. Might have gone too far, but it was needed.

shows why Clarence Thomas is probably the best judge on the court

Funny, because he has a problem with many 'substantive due process' decisions, especially when the court declares there is a right to abortion and will definetly against when the court declares there is a right to homosexual sex.

And he usually votes with Scalia, who believes the substantive due process clause is made up fiction.

[Berzerker]

Imran -

Not just the BoR.. enumerated in the Constitution.

Beyond those? There are only a handful of rights enumerated in the Constitution and thousands we take for granted.

Yeah, and so it sunk it. If you are not aware, West Coast Hotel has declared 'Economic Due Process' (of the sort you just listed) has NO protection in the Constitution.

I'm not aware, but you can see by that link the origin of substantive due process and how it was originally a right wing, i.e., conservative doctrine based on the presumption that we have rights not enumerated in the Constitution that limit the states because of the 14th Amendment.

Can you now NOT see why I consider Substantive Due Process to simply depend on the Justice's whims?

I've understood that all along, but that doesn't negate the principle any more than a wrongful conviction negates justified convictions in other trials.

How can such a varying standard be encapsulated in the Constitution? All Substantive Due Process depends on is whether the Justices think that the 'right' being asserted is worthy of Constitutional protection.

That's true, but the 9th Amendment encapsulates just such a potentially varying standard. The problem is that the definition of a "right" has been perverted by the left, but we don't solve that problem by allowing government the power to do away with legitimate rights.

Yes, the state Constitutions and the 14th LIMIT state power. That doesn't mean the states have to 'justify' their laws as Constitutional before passage.

Substantive due process deals with the laws after they are passed and before we are fully punished for violating them... hopefully...

Unlike the federal government, which cannot due anything unless authorized, state governments can do ANYTHING unless restricted.

Restricted by both the federal Constitution and their respective state constitutions. You're right, the feds need constitutional authority to act, the states need only respect our rights. Where we apparently disagree is that you think the states need only respect the enumerated rights in the Constitution and I think the 9th Amendment matters.

Let's change it to be a state law (I don't think Congress' power would extend that far). Yes, it's valid. No objections.

Your definition of the ICC would give Congress the power if Congress can punish you for smoking pot. Did you know the ICC wasn't used to outlaw pot in 1937? Why not? Because Congress knew the SCOTUS was hostile to expanding the ICC beyond it's traditional bounds and pot grew in many states. Why was alcohol prohibited via amendment if Congress can ban pot via the ICC?

Because a person who is in the medical profession, engages in interstate commerce to be able to set up and run his practice, therefore everything he does in it can be regulated. There is no evidence that the woman has ever engaged in interstate commerce.

There's no evidence the doctor did either, you're just making the assumption. Engaging in ICC for one purpose is not a green light to regulate everything else we do. Buying a car made in Detroit doesn't mean Congress gets to regulate how I drive my car within my state or how often I brush my teeth.

No. Freedom of relgion isn't an absolute right.

Excluding the enumerated powers in the Constitution, Congress cannot violate our religious liberty. And since the states are beholden to the 1st Amendment, they cannot either unless allowed by their constitutions. Most, if not all the state constitutions have religious liberty clauses and I doubt you'll find enumerated powers to decide what religious "paraphenalia" we can or cannot use in our religious practices within those constitutions.

Where Judicial Review is located . If the court can decide what law is unconstitutional, then that means its rulings are constitutional, right?

Then abortion was a constitutional right in 1974 but not in 1972? Was the Constitution amended between those years?

Yes, avoiding... the post you quoted before this statement:

Life, liberty, and property can be taken away if there is a fair trial.

Having shown why your "Bill of Attainder" doesn't apply, you have nothing left except insults?

Does that answer your question, moron?

Your Hotlanta Hardmen will be thrashed this week for that.

No you aren't. You are expanding the clause. The plain meaning of 'due process' is the right to a fair trial.

I'm not expanding the clause, I'm accepting the logic that the Framers put "life, liberty, or property" in the 5th Amendment for a reason. A "fair" trial is meaningless if Congress can simply outlaw your life, liberty, or property first and then judicially punish you for living, etc. Why do you suppose the Framers would have mentioned these rights if they don't even exist?

New Deal was a good thing. Never said the opposite. Might have gone too far, but it was needed.

Then why complain when I said you were using a leftist argument?

Funny, because he has a problem with many 'substantive due process' decisions, especially when the court declares there is a right to abortion and will definetly against when the court declares there is a right to homosexual sex.

I see the caveat you put in there, "many" substantive due process decisions. That means he agrees with some, which in turn, means he agrees with the principle of substantive due process, but just has problems with some of the so-called rights other judges have identified.

And he usually votes with Scalia, who believes the substantive due process clause is made up fiction.

Whom he usually agrees with or doesn't is irrelevant as long as he occasionally supports substantive due process.

[Ben Kenobi]

Based on what?

Assuming for the point of argument, as I am trying to sort some other facts at this point.

If you believe in legislating morality, how do you explain the fact that enforcing laws require money stolen (legally of course) from others?

We all pay for laws of any kind. I never took you for an anarchist before.

Did Jesus tell his followers to go around hurting or killing people for engaging in unhealthy activities?

No. Show me where I advocate hurting and killing sodomisers?

You are an adult Imran. What about younger people and children?

Would you engage in sodomy if it's legal?

No, because I am a Christian.

"Encouraged"? Don't you mean threatened with violence, i.e., coerced?

Bank robbers are threatened with violence. Should we make things safe for bankrobbers?

[Imran Siddiqui]

There are only a handful of rights enumerated in the Constitution and thousands we take for granted.

Yep... those we take for granted go beyond the Constitution. They are granted by the generosity of the public and their representatives.

it was originally a right wing, i.e., conservative doctrine based on the presumption that we have rights not enumerated in the Constitution that limit the states because of the 14th Amendment.

Perhaps, but that era of substantive due process died in the 1930s. This era of substantive due process (personal rights due process) is almost always backed from the other side of the aisle.

I've understood that all along, but that doesn't negate the principle any more than a wrongful conviction negates justified convictions in other trials.

This is different for one main reason: What is and is not covered by Substantive Due Process is decided entirely by what the Supreme Court thinks. A wrongful conviction has a jury trial, then appeals and remands, etc.

The problem is that the definition of a "right" has been perverted by the left, but we don't solve that problem by allowing government the power to do away with legitimate rights.

I'm sure someone from the left might say the same about you. An idea that the SCOTUS can simply declare rights whenever it wants basically amounts to a political decision in the end. If you believe in seperation of powers (which I think you do), Congress is the federal body that makes the laws.

Why was alcohol prohibited via amendment if Congress can ban pot via the ICC?

What the ICC means has been vastly expanded. I don't agree with it, but it is never going to be changed now. The expansion of what the meaning of the ICC is, is similar to the expansion of the meaning of due process.

Buying a car made in Detroit doesn't mean Congress gets to regulate how I drive my car within my state

It does get to regulate how that car is made though.

Excluding the enumerated powers in the Constitution, Congress cannot violate our religious liberty. And since the states are beholden to the 1st Amendment, they cannot either unless allowed by their constitutions. Most, if not all the state constitutions have religious liberty clauses and I doubt you'll find enumerated powers to decide what religious "paraphenalia" we can or cannot use in our religious practices within those constitutions.

Most (if not all) jurisdictions have interpreted enumerated rights (as well as the unemumerated under substantive due process) are not absolute, and when the state has a compelling reason for violating it, then it can. I don't see much wrong with that, because it didn't seem like the original framers wanted to make those rights absolute (ie, prayers before the First Congress' sessions).

Then abortion was a constitutional right in 1974 but not in 1972? Was the Constitution amended between those years?

Yes, no. The court decided it would be nice if abortion was a right, making abortion constitutional in 1974. Beforehand it wasn't a right (or close to it, really).

That means he agrees with some, which in turn, means he agrees with the principle of substantive due process, but just has problems with some of the so-called rights other judges have identified.

Perhaps, but Thomas writes so few opinions, who knows? That, and we are not sure if he is simply following precedent. Justice White, for example, would write scathing dissents, and then in the next case dealing with that issue would back the (old) majority opinion, simply because he was following precedent.

[Berzerker]

Obiwan -

We all pay for laws of any kind. I never took you for an anarchist before.

That doesn't negate the fact force (or the threat thereof) is used to obtain the money you'll need for legislating morality which makes it an oxy-moron. I'm not, there are voluntary means and user fees for funding government that I can support.

No. Show me where I advocate hurting and killing sodomisers?

I thought you want people discouraged via the law from engaging in potentially unhealthy activities. Enforcing those laws requires hurting or killing people, the people targeted by the law and the people forced to pay for the enforcement.

No, because I am a Christian.

But there are homosexual Christians. Wouldn't the reason you'd abstain from sodomy be your heterosexuality? I'm not a Christian, but my heterosexuality precludes me from engaging in homosexual behavior.

Bank robbers are threatened with violence. Should we make things safe for bankrobbers?

No, I thought we were talking about encouraging people to refrain from potentially unhealthy activities such as sodomy.
Unless you are prepared to equate bank robbers with homosexuals, I don't see why both groups should be subjected to threats of violence to deter their behavior.

[Boris Godunov]

obiwan, do you seriously think that heterosexuals are refraining from participating in homosexual acts because the law in some places says not to do it?

Am I the only one who thinks this is one of the most absurd things said here?

[Ben Kenobi]

Enforcing those laws requires hurting or killing people, the people targeted by the law and the people forced to pay for the enforcement.

Not necessarily. What about my suggestion of a fine?

Wouldn't the reason you'd abstain from sodomy be your heterosexuality? I'm not a Christian, but my heterosexuality precludes me from engaging in homosexual behavior.

Interesting consequences from this question. I would argue that heterosexuals can experiment with sodomy and still be considered heterosexuals.

Therefore, it is not sexual orientation that determines sexual practice, but something else entirely.

Christianity says that sodomy is sinful, hence I refrain from sodomy.

Unless you are prepared to equate bank robbers with homosexuals, I don't see why both groups should be subjected to threats of violence to deter their behavior.

Both activities are morally wrong from the assumptions that we are working with here. I would argue that an effective deterrent will be different because of the motivations in which people will engage in both activities.

The point I'm trying to flesh out is what should be the most effective deterrent?

[Sava]

Didn't Jesus teach tolerance, forgiveness, and love for all people?

[Berzerker]

Imran -

Yep... those we take for granted go beyond the Constitution. They are granted by the generosity of the public and their representatives.

How do you square that with Madison's language in the 9th Amendment where he says unenumerated rights should not be denied or disparaged?

Perhaps, but that era of substantive due process died in the 1930s. This era of substantive due process (personal rights due process) is almost always backed from the other side of the aisle.

True, but not always to create bogus rights like a right to other people's property in the name of health care or schooling.

This is different for one main reason: What is and is not covered by Substantive Due Process is decided entirely by what the Supreme Court thinks. A wrongful conviction has a jury trial, then appeals and remands, etc.

And yet there are plenty of people who've been wrongfully punished. We want safeguards to prevent that from happening, and there should be safeguards to prevent the courts from creating false rights, but the failure of safeguards doesn't mean we scrap trial by jury or substantive due process.

I'm sure someone from the left might say the same about you.

True, so that requires an analysis of the nature of rights as envisioned by the Framers. Even a brief analysis will show they meant rights as individual claims of "ownership" based on life, liberty, or property. A right to keep and bear arms, not a right to have others buy us guns. A right to religious freedom, not a right to a government provided church and audience for our sermons, etc.

An idea that the SCOTUS can simply declare rights whenever it wants basically amounts to a political decision in the end. If you believe in seperation of powers (which I think you do), Congress is the federal body that makes the laws.

If Congress writes a law violating your right to smoke tobacco and the SCOTUS says the law is unconstitutional, did the court create a right or did it negate a law? The court has long taken the position of having the power to negate a law. The BoR is pretty clear about the origin of rights, they came before government, not from government. Congress shall make no law prohibiting religious freedom - a freedom that comes from God, not Congress. I agree the line between creating a right and negating a law is very fine.

What the ICC means has been vastly expanded. I don't agree with it, but it is never going to be changed now. The expansion of what the meaning of the ICC is, is similar to the expansion of the meaning of due process.

I agree with the first part, but not the last. I believe the Framers assumed we have life, liberty, or property before due process is exercised to remove them for committing a crime.

It does get to regulate how that car is made though.

Only under the expanded meaning of the ICC which you say you disagree with (as I do).

Most (if not all) jurisdictions have interpreted enumerated rights (as well as the unemumerated under substantive due process) are not absolute, and when the state has a compelling reason for violating it, then it can. I don't see much wrong with that, because it didn't seem like the original framers wanted to make those rights absolute (ie, prayers before the First Congress' sessions).

Then they would have added a "compelling interest" provision to the Constitution.

Yes, no. The court decided it would be nice if abortion was a right, making abortion constitutional in 1974. Beforehand it wasn't a right (or close to it, really).

Which means the Constitution changes as the composition of the court changes? I don't agree with that even though I know you're just stating the reality. Either legal abortions were constitutional before and after 1973 or they weren't.

Perhaps, but Thomas writes so few opinions, who knows?

I'm just going on your assertion he disagrees with many rights under substantive due process which means he agrees with some. Maybe he opposes substantive due process all the time.

That, and we are not sure if he is simply following precedent. Justice White, for example, would write scathing dissents, and then in the next case dealing with that issue would back the (old) majority opinion, simply because he was following precedent.

Of all the judges on the court, Thomas has shown himself to be the most willing to ignore precedent - I like that about him. In the Lopez case (gun free school zones), he practically argued in favor of doing away with the ICC as defined since the 30's.

[Imran Siddiqui]

How do you square that with Madison's language in the 9th Amendment where he says unenumerated rights should not be denied or disparaged?

Easy: Which unenumerated rights? Madison didn't mean ALL unenumerated rights. What he merely meant was that you can't deny a state's granting of rights simply because it doesn't provide for that right under the Constitution.

True, but not always to create bogus rights like a right to other people's property in the name of health care or schooling.

Who decides which rights are 'bogus'? Only the Supreme Court, whose decisions are unreviewable. They can declare a right to health care, and we can do little about it (Constitutional Amendments are VERY hard to pass). The court has already said there was a right to schooling (right to education) in Brown v. Board of Education.

Even a brief analysis will show they meant rights as individual claims of "ownership" based on life, liberty, or property.

The problem is under the view that the 9th Amendment leads to the protection of unenumerated rights, some future group can say that Madison meant the unenumerated rights they assert should not be disparaged or denied.

Then they would have added a "compelling interest" provision to the Constitution.

Not necessarily. Under judicial review (Marbury v. Madison) the SCOTUS has broad power to interpret the Constitution. And if we are going on what the framers intended, it is clear that they did not intent an absolute right to what is granted in BoR.

The Constitution might have been simply unworkable any other way.

Which means the Constitution changes as the composition of the court changes? I don't agree with that even though I know you're just stating the reality.

Well, the reality is the point. The Constitution changes as the court changes, especially with a substantive due process idea where the court determines what rights are protected.

Of all the judges on the court, Thomas has shown himself to be the most willing to ignore precedent

Which is because he follows Scalia 90% of the time.

[Sava]

OMG, these massive Imran vs. Berzerker posts are a bore to read.

[Ben Kenobi]

Didn't Jesus teach tolerance, forgiveness, and love for all people?

Forgiveness and love, but not necessarily tolerance.

One example of this is when Jesus overturns the tables of people selling in the temples. There are times when one cannot and should not tolerate sin.

[Sava]

That's not how I mean tolerance obiwan. One can preach tolerance and not tolerate murder.

[OneFootInTheGrave]

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

Originally posted by korn469

I think laws can be both intolerant and unjust, while still being "constitutional."

Can there even be an argument about a statement so obviously correct?