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

[korn469]

Here's what Santorum said

If the Supreme Court says that you have the right to consensual (gay) sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything.
It all comes from, I would argue, this right to privacy that doesn't exist, in my opinion, in the United States Constitution.

then he defended himself in a public hearing on his beliefs by saying this

To suggest that my comments, which are the law of the land and were the reason the Supreme Court decided the case in 1986, are somehow intolerant, I would just argue that it is not

Ok so any law the Supreme Court says is constitutional means that it is automatically tolerant according to this line of thinking. So Dread Scott being considered property (ie a slave) instead of a person, was actually tolerant since it was the law of the land, and this changed only after the law was repelled.

I disagree wholeheartedly. I think laws can be both intolerant and unjust, while still being "constitutional." So what is everyone else's take on this issue?

[MichaeltheGreat]

Santorum's first bit is mostly correct. If you have the right to commit sodomy with a consenting adult in your own home, then you have the right to pretty much any of those other things in your own home too, at least the adultery and incest parts.

Bigamy and polygamy are specific types of relationships, so Santorum's comparison is flawed there. The legality of specific conduct, and legal sanction of specific relationships are entirely separate issues. Marital relationships involve all sorts of quasi-contract issues, such as community property, (in some states) rights of survivorship, certain legal immunities, dissolution procedures, child custody, etc. States therefore may have a legitimate interest in regulating legal relationships such as marriage, but if ten women want to shack up with some guy and they all happily do their thing, I'm not sure where in hell the state has any legitimate reach.

The notion of so-called conservatives that state power reaches into people's private actions in their own homes, where no other person is harmed, is pretty hypocritical, to say the least. Let's ***** and whine and scream about government regulating commercial activities that affect the public, but let's insist the state has the power to regulate purely private conduct between consenting, legally competent adults. Bull****.

[Ted Striker]

He's backtracking trying to cover his ass but the first quote says it all.

[Imran Siddiqui]

My take is you are making a mountain out of a molehill.

If you actually read what you quoted he doesn't say that it is impossible for a law to be intolerant. You just made that up. You have to seperate the independant and dependant clauses. He is saying his views are NOT intolerant. Also he believes his views are the law of the land and the reason for the Supreme Court decision (which he may have a good point).

And his first comment isn't really wrong, btw.

[Imran Siddiqui]

Bigamy and polygamy are specific types of relationships, so Santorum's comparison is flawed there.

Not really. He is arguing that the 'right to privacy' which is part of the Substantive Due Process framework will allow bigamy and polygamy. He is probably correct (if you follow the right to privacy all the way to its conclusion).

[DarthVeda]

My big question is why aren't the bigamists, incestors (is that even a word?), adulterers, and polygamists rasing a fuss about being lumped together with homosexuals?



That's a smiley by the way...

[MichaeltheGreat]

Originally posted by Imran Siddiqui

Bigamy and polygamy are specific types of relationships, so Santorum's comparison is flawed there.

Not really. He is arguing that the 'right to privacy' which is part of the Substantive Due Process framework will allow bigamy and polygamy. He is probably correct (if you follow the right to privacy all the way to its conclusion).

You have to really stretch a privacy argument a loooooooooong ways to come up with legal status for public relationships like marriage. If some man is masochistic enough, he can have a live-in sexual relationship with as many women as he can fit in his house (unless you want to see a return of illicit cohabitation statutes, lol), and vice-versa if some woman wanted to do the same thing. What who does to who is a private matter, but marriage (or any legal relationship) is not a private matter, it is a public one, because every state recognizes a number of commercial and other aspects to the marriage relationship, that are not recognized outside of legal relationships. The Feds, who aren't even in the relationship business, recognize husband-wife privilege in the Federal legal system, and recognize the marriage relationship (in a negative way) in the tax code.

Even if Substantive Due Process and a right to privacy did result in the state's loss of power to prohibit those types of relationships between informed and consenting adults, is that a worse result than the state having the power to regulate any and all purely personal conduct that involves no harm to others? Because if the state has the power to regulate where you put your pecker while you're in your own home, it has the power to regulate anything and everything else not explicitly prohibited under the Constitution, and that flies in the face of the plain reading of the Ninth and Tenth Amendments.

[Imran Siddiqui]

You have to really stretch a privacy argument a loooooooooong ways to come up with legal status for public relationships like marriage.

Not really. The Supreme Court in Loving v. Virginia asserted that there is a right to marriage and in Griswold the court stated that the right to privacy extends to the bedroom. It isn't a streach at all to apply the 'right to privacy' to bigamy and polygamy. The only reason it hasn't been done is because the court is morally opposed to it.

Even if Substantive Due Process and a right to privacy did result in the state's loss of power to prohibit those types of relationships between informed and consenting adults, is that a worse result than the state having the power to regulate any and all purely personal conduct that involves no harm to others?

Not really... but who said this was a policy argument .

Because if the state has the power to regulate where you put your pecker while you're in your own home, it has the power to regulate anything and everything else not explicitly prohibited under the Constitution, and that flies in the face of the plain reading of the Ninth and Tenth Amendments.

Not really. The Ninth Amendment really doesn't mean what the David Floyd's of this forum believe. The Supreme Court has said the Ninth is simply a truism. All it says is that the rights guarenteed by the states will not be invalidated by the Constitution. The federal government cannot throw out an asserted right simply because it is not in the Constitution. They CAN throw it out for any other reason. I'll have to dig up the case (it was linked as SDMB ).

[Imran Siddiqui]

Ah, here we go:

U.S. v. Darby

The amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.

Findlaw annotations of the 9th Amendment say:

is clear from its text and from Madison's statement that the Amendment states but a rule of construction, making clear that a Bill of Rights might not by implication be taken to increase the powers of the national government in areas not enumerated, and that it does not contain within itself any guarantee of a right or a proscription of an infringement.

Here is the thread:

http://boards.straightdope.com/sdmb/showthread.php?s=&threadid=172810

[MichaeltheGreat]

Originally posted by Imran Siddiqui
Not really. {snip}

By that logic of combination, one could take a right of free speech, a right to vote, and combine them to a right to campaign and electioneer at polling places on election day, invalidating most states bans on such activities within a certain distance of polling places. All sorts of nifty rights could be assembled out of thin air if you applied that logic.

Not really... but who said this was a policy argument .

It really should be.

Not really. The Ninth Amendment really doesn't mean what the David Floyd's of this forum believe. The Supreme Court has said the Ninth is simply a truism.

Even David Floyd is more or less right on occasion. The Supremes just don't like restricting the power of government unless they have no excuse not to.

[Imran Siddiqui]

By that logic of combination, one could take a right of free speech, a right to vote, and combine them to a right to campaign and electioneer at polling places on election day, invalidating most states bans on such activities within a certain distance of polling places. All sorts of nifty rights could be assembled out of thin air if you applied that logic.

What the Hell do you think Substantive Due Process is? Every right that has been asserted under due process clause from Lochner and Giswold on is simply assembled out of thin air. They have no basis in anything except 'history' and 'traditional notions of fair play and substantial justice'. Of course that depends on how much they want to limit their view. In Bowers it was the right to homosexual sex, rather than the right to privacy.

It is ALL of thin air. Don't delude yourself.

The Supremes just don't like restricting the power of government unless they have no excuse not to.

Perhaps. But all I've seen indicates the 9th Amendment was intended (and can be backed by the plain meaning) to simply guarentee rights granted by the states couldn't be invalidated because they weren't in the Constitution. Just like the 11th was intended to confer soveriegn immunity (though this really can't be backed by the plain meaning ).

Even if they were wrong, its precedent now, so they are right .

[Berzerker]

MtG -

Santorum's first bit is mostly correct. If you have the right to commit sodomy with a consenting adult in your own home, then you have the right to pretty much any of those other things in your own home too, at least the adultery and incest parts.

He screwed up by adding "anything", a right to privacy regarding consensual homosexuality does not translate into a right to do anything, but it does translate into a right to engage in other consensual relationships, e.g., bygamy or polygamy as well as drug use, gambling, and prostitution. However, he's also wrong when he added adultery since that is usually a violation of the marriage contract. That could only be avoided if the married couple agreed to an "open" marriage where adultery is allowed.

Bigamy and polygamy are specific types of relationships, so Santorum's comparison is flawed there. The legality of specific conduct, and legal sanction of specific relationships are entirely separate issues.

Homosexuality is a specific type of relationship, so why is it different? Homosexuality, bygamy and polygamy are all relationships and behaviors.

Marital relationships involve all sorts of quasi-contract issues, such as community property, (in some states) rights of survivorship, certain legal immunities, dissolution procedures, child custody, etc. States therefore may have a legitimate interest in regulating legal relationships such as marriage, but if ten women want to shack up with some guy and they all happily do their thing, I'm not sure where in hell the state has any legitimate reach.

The state doesn't have a legitimate concern in banning these, only setting up procedures for determining inheritance, etc (as you point out, just wanted to highlight the difference)...

The notion of so-called conservatives that state power reaches into people's private actions in their own homes, where no other person is harmed, is pretty hypocritical, to say the least. Let's ***** and whine and scream about government regulating commercial activities that affect the public, but let's insist the state has the power to regulate purely private conduct between consenting, legally competent adults. Bull****.

Yup.

Imran -

He is arguing that the 'right to privacy' which is part of the Substantive Due Process framework will allow bigamy and polygamy. He is probably correct (if you follow the right to privacy all the way to its conclusion).

True for bygamy and polygamy, not true for adultery or the "anything" which he illogically ended his critique. I have to wonder if he thought about what he was going to say or if he was just spouting off.

He is saying his views are NOT intolerant. Also he believes his views are the law of the land and the reason for the Supreme Court decision (which he may have a good point).

But his rationale for the former is the latter, so the previous court decision is his "proof" for claiming his views are not intolerant. If that was not his proof, what is? He defends his views as tolerant and has no reason for why other than the reference to the courts and the law.

Korn -

Ok so any law the Supreme Court says is constitutional means that it is automatically tolerant according to this line of thinking.

Yeah, that was also pretty stupid. To suggest his position was not intolerant because the law he was defending is constitutional (or even if it was not) is illogical. It was once illegal for slaves to runaway and for others to help them, that is not what I'd call a tolerant law.

[Imran Siddiqui]

True for bygamy and polygamy, not true for adultery or the "anything" which he illogically ended his critique. I have to wonder if he thought about what he was going to say or if he was just spouting off.

Oh, I totally agree. "Anything is a bit much"

But his rationale for the former is the latter, so the previous court decision is his "proof" for claiming his views are not intolerant. If that was not his proof, what is? He defends his views as tolerant and has no reason for why other than the reference to the courts and the law.

If you read the rest of the speech (and not just that quote) he talks about it.

Bringing in the law and the Court is basically saying I'm not intolerant, but if you think I am, then so is the Constitution, so nyeh! (basically) Many people don't think the Constitution is intolerant though.

[MichaeltheGreat]

Originally posted by Imran Siddiqui
What the Hell do you think Substantive Due Process is? Every right that has been asserted under due process clause from Lochner and Giswold on is simply assembled out of thin air. They have no basis in anything except 'history' and 'traditional notions of fair play and substantial justice'. Of course that depends on how much they want to limit their view. In Bowers it was the right to homosexual sex, rather than the right to privacy.

It is ALL of thin air. Don't delude yourself.

Substantive Due Process is reliance on the intent of the Framers to limit the reach of state power, rather than on the narrowest possible interpretation and dissection of the wording of the Constitution.

What is of thin air is the creeping infiltration of statism into a system created from a desire to limit the powers of government and respect the rights of the individual.

Even if they were wrong, its precedent now, so they are right .

You're in law school now, right? Or not yet? Or is it just your g/f? :confuzzled: Anyhow, go grab a Shepard's Citations, and check out what that little "o" and that little "m" stand for. Bad precendent can always be gotten around. When there's a will, there's a way.

[Imran Siddiqui]

Substantive Due Process is reliance on the intent of the Framers to limit the reach of state power, rather than on the narrowest possible interpretation and dissection of the wording of the Constitution.

Say what?

Substantive Due Process didn't even exist until 1920s. WHICH framers? The framers wanted to limit FEDERAL power. They had no problem with state power. Hell Massachusettes had an established state church until the mid 1800s. Besides the entire idea of Substantive Due Process is made up!

What is of thin air is the creeping infiltration of statism into a system created from a desire to limit the powers of government and respect the rights of the individual.

Where does statism come into legalizing bigamy and polygamy? Aren't those individual rights? Btw, that would probably be based also on an Equal Protection Claim.

You're in law school now, right?

Yes. Btw, how many Supreme Court cases have been overturned? It is very few. Overruling precedent is very difficult, especially if just about everyone agrees with it .