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

[DinoDoc]

Originally posted by Imran Siddiqui
Yes. Btw, how many Supreme Court cases have been overturned? It is very few. Overruling precedent is very difficult, ...

The bits of my Con Law class when the Court was working with two lines of valid precedent at the same time were always my favorite.

PS I never really understood the rationale for the concept of substantive due process. How can anyone with at least a 6th grade education understand the Due Process clauses to do anything other than procedural rights?

[Imran Siddiqui]

DD: It is because they really, really, really wanted to assert those rights, and the court had basically said that the Privileges and Immunities Clause of the 14th Amendment was basically a non-entity.

MtG: Just found something for you:

Zablocki v. Redhail

More recent decisions have established that the right to marry is part of the fundamental "right of privacy" implicit in the Fourteenth Amendment's Due Process Clause

[Rufus T. Firefly]

Just a few thoughts:

1) Sodomy is not like bigamy or polygamy; bigamy and polygamy refer to legal contracts, whereas sodomy refers to a sex act. The appropriate analogy would be to threesomes and orgies, and you DO have a right to those -- a fact for which I hope someday to be thankful.

2) I believe you have a right to adultery as well. Adultery is grounds for divorce, but it is not illegal; that is, its a civil and not criminal issue. So once again, there's no analogy here.

3) Here I'm not sure, but I think consenting adults may well have a right to incest; they are barred from marrying, but that is again a civil and not criminal issue. Anybody know for sure?

4) Though nobody talks about them this way, sodomy laws tend to ban specific sex acts rather than banning activities between persons -- and thus apply equally to heterosexuals and homosexuals. Some years back, the Democratic political machine in Rhode Island actually conducted arrests of its political enemies and charged them with engaging in sodomy -- in this case, consensual, oral, heterosexual sex -- in violation of state law. I don't know if this law works the same way.

[Berzerker]

Imran -

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.

HUH? That contradiction makes the 9th Amendment irrelevant. The Congress could say we have no right to eat ice cream, not because no right appears in the Constitution, but because ice cream is fattening. The history behind the 9th Amendment was that Thomas Jefferson et al were concerned that if a Bill of Rights was added to the Constitution, there might be future peoples who would argue that rights not enumerated in the BoR can be voided by Congress. Alexander Hamilton et al argued against the BoR pointing out that the Constitution, by limiting Congress to several defined powers, was already a Bill of Rights since we'd have all sorts of rights by virtue of Congress' limited authority over us. Madison designed the 9th Amendment based on the Jeffersonian complaint...

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.

The 14th Amendment changed that by creating a dual citizenship for Americans - state and US citizenship. The states could no longer violate our rights under the Constitution...the Congress and courts have done a terrible job applying the 14th Amendment though as a century of Jim Crow shows.

[DinoDoc]

More recent decisions have established that the right to marry is part of the part of the fundamental "right of privacy" implicit in the Fourteenth Amendment's Due Process Clause

I'd really like to know how anyone ever reads the recent SCOTUS opinions without a hefty supply of Tylenol if this is typical of the hoops they jump through to get to thier decision.

[Berzerker]

Imran -

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

It's possible he cleared that up, but the sentence quoted shows an attempt to prove his tolerance by pointing to what someone else - the SCOTUS - said.

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!

The Constitution doesn't support his position. We have equal protection under the Constitution, true? Then why do heterosexual adults have rights to consensual sex and marriage but not homosexuals, bygamists, and polygamists? Btw, pointing to the Constitution, even if he's right, doesn't prove his comments are tolerant.

Substantive Due Process didn't even exist until 1920s.

There was little or no need for it since the 14th Amendment was passed in the 1860's and Congress did a much better job of minding it's own business before that. Once the 14th Amendment was passed and gradually followed by people's attempts to limit the states from taking our rights, substantive due process became important. It's based on the proposition that if Congress cannot take away our lives, liberty, or property without due process (requiring a trial), then can Congress simply write laws to take away these rights? For example, if Congress wanted you dead, can the Congress write a law saying you can't live and then execute you for living? No, because due process presumes we have our rights after the laws are written and substantive due process deals with this problem.

WHICH framers? The framers wanted to limit FEDERAL power. They had no problem with state power.

Actually, the Congress had a very big vote in the early 1790's to decide if the same constitutional limits on federal power should limit the states too. The House voted to limit the states and the Senate rejected the proposal. The 14th Amendment accomplished what the Congress failed to do back then.

Hell Massachusettes had an established state church until the mid 1800s. Besides the entire idea of Substantive Due Process is made up!

Of course it's made up - because the 14th Amendment dramatically changed the federal/state relationship, but it stems from the 5th Amendment.

[Guynemer]

So is the Bush Administration going to address this at all, or are they hoping it will fade away?

To me, this is more concerning than the Lott affair--the best that could be said for Lott was that he just wasn't that bright, praising an old man on his birthday with an oblique reference to long-dismissed views. However, the best that could be said for Santorum is that he's a bigot when it comes to homosexuality.

If the Admin says nothing, does that mean the Bushies are against racial intolerance, but have no problem with homophobia?

[DinoDoc]

Of course it's made up - because the 14th Amendment dramatically changed the federal/state relationship, but it stems from the 5th Amendment.

No, it doesn't. The justices pulled the whole concept from thier collective arses.

[MichaeltheGreat]

Originally posted by Imran Siddiqui
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.

State has more than one meaning. Howzabout power of the state (as opposed to "powers of the states")

Besides the entire idea of Substantive Due Process is made up!

So was the concept that legislatures could do anything right up to the limits of the narrowest possible interpretation of the exact words used in the Amendments. i.e. how the Federal government and the states got around right to counsel and managed to actively restrict First Amendment rights at their convenience.

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.

Statism comes into it when the state determines it is the arbiter of what groups have what rights, and that the state can regulate any activity it wants, regardless of how far removed that activity is from the public or from the intended purposes for which the state is formed.

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 .

That's why it took six decades to overrule Plessy, which is another example of made up law. Most people agreed with keeping coloreds in their place back then too. At least in their public place.

[GePap]

I am with Rufus here.

The state has no more power to regulate homosexual sex acts than heterosexual sex acts (wich means I think most Sodomy laws are crap). The most they can do is create a definition for the age of legal consent, then its over.

As Rufus said polygamy is a contract much like monogamous marriage. Interestingly enough, Snatorum didn't mention polyandry.... maybe he yearns to be a multiple husband.

As for incest, I think, as rufus said, to fall in the category of sexual acts: I fail to see what rationale the courts could have to ban incest between consentual parties without religious or eugenic reasons.

[Lincoln]

Another mountain out of a mole hill. I wonder why gays are siding with the Christian right here? They are now opposing the so called right to incest, adultry and bigamy. It seems like they would support Santorum and gladly extend the "right" of unlimited sex between anyone or anything anytime. They again single out themselves for special treatment under the law. Santorum made a valid argument (even though he exaggerated the case).

[Imran Siddiqui]

The Congress could say we have no right to eat ice cream, not because no right appears in the Constitution, but because ice cream is fattening.

Congress can probably ban ice cream using the commerce clause, as long as it has a rational basis for that claim (btw, it would be a similar reason as to why Congress can ban drugs).

The history behind the 9th Amendment was that Thomas Jefferson et al were concerned that if a Bill of Rights was added to the Constitution, there might be future peoples who would argue that rights not enumerated in the BoR can be voided by Congress

This really isn't different from what I said, berz. The Ninth says Congress can void other rights (such as those granted by state consitutions) simply because it isn't in the federal Constitution. It has never been used as a positive grant of rights.

It's based on the proposition that if Congress cannot take away our lives, liberty, or property without due process (requiring a trial), then can Congress simply write laws to take away these rights?

No, it was based on the proposition that SC Justices wanted to expand the 'rights' that people had and wanted to severly limit states rights, so they basically decided to make something up that is no where in the Constitution.

As DD said, they pulled it out of their collective asses.

Btw, the court CAN take away your life, liberty and property. Life: Death Penalty, Liberty: Name a regulation, Property: Eminent Domain.

There is no 'right' to privacy, abortion, marriage, family, etc. as the Framers wrote the document. Those things were to be decided by the states (they were big states rights people, you know).

Ask any law professor, and they will tell you how weak the textual support is for Substantive Due Process is, no matter what their political beliefs.

For example, if Congress wanted you dead, can the Congress write a law saying you can't live and then execute you for living?

It's a Bill of Attainder, so no.

Statism comes into it when the state determines it is the arbiter of what groups have what rights

So, you are saying the entire concept of Substantive Due Process is statism? After all the state is determining that it is arbiter of what groups have what rights.

[korn469]

MtG

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.

is either adultery or incest actually illegal in the same way that sodomy is? I mean can you goto prison for having sex with someone other than your spouse? If so is that law enforced at all? Can two blood related adults actually goto prison for having consensual sex or does it just bar them from marriage?

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

agreed

Imran

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).

wrong

taking out the dependent leaves you with this

To suggest that my comments are somehow intolerant, I would just argue that it is not

which doesn't give any reasons as to why his comments aren't intolerant, and i found his entire first comment

We have laws in states, like the one at the Supreme Court right now, that has sodomy laws and they were there for a purpose. Because, again, I would argue, they undermine the basic tenets of our society and the family. And if the Supreme Court says that you have the right to consensual 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. Does that undermine the fabric of our society? I would argue yes, it does. It all comes from, I would argue, this right to privacy that doesn't exist in my opinion in the United States Constitution, this right that was created, it was created in Griswold — Griswold was the contraceptive case — and abortion. And now we're just extending it out. And the further you extend it out, the more you — this freedom actually intervenes and affects the family. You say, well, it's my individual freedom. Yes, but it destroys the basic unit of our society because it condones behavior that's antithetical to strong, healthy families. Whether it's polygamy, whether it's adultery, where it's sodomy, all of those things, are antithetical to a healthy, stable, traditional family.

Every society in the history of man has upheld the institution of marriage as a bond between a man and a woman. Why? Because society is based on one thing: that society is based on the future of the society. And that's what? Children. Monogamous relationships. In every society, the definition of marriage has not ever to my knowledge included homosexuality. That's not to pick on homosexuality. It's not, you know, man on child, man on dog, or whatever the case may be. It is one thing. And when you destroy that you have a dramatic impact on the quality

http://story.news.yahoo.com/news?tmpl=story&u=/ap/20030422/ap_on_go_co/santorum_gays_excerpts_2

certainly when one says that engaging in gay acts destroys the fabric of society, then that is implying it is fundamentally bad, also that undermines his "i hate the sin, not the sinner" line of argument intended to shield him from being intolerant

I have no problem with homosexuality. I have a problem with homosexual acts. As I would with acts of other, what I would consider to be, acts outside of traditional heterosexual relationships. And that includes a variety of different acts, not just homosexual. I have nothing, absolutely nothing against anyone who's homosexual. If that's their orientation, then I accept that. And I have no problem with someone who has other orientations. The question is, do you act upon those orientations? So it's not the person, it's the person's actions. And you have to separate the person from their actions.

yet when he says

Because society is based on one thing: that society is based on the future of the society. And that's what? Children. Monogamous relationships. In every society, the definition of marriage has not ever to my knowledge included homosexuality

that means even those who don't act on their orientation, but reject the concept of the heterosexual marriage and indirectly undermining society

plus how does two guys getting it on really undermine the basis of society any more than two guys taking a vow of chastity and becoming monks? both have rejected the Santorum's basis of a functional society, how does gay sex really compound this? i don't get his line of reasoning at all, except that he is intolerant of gays in particular, instead of any person who rejects marriage and having children, which makes him intolerant

intolerance is freedom of speech, and if he took that position i'd have less of a problem with him, but the only argument he offers in his defense is that since it is the law of the land, he can't be intolerant for approving of that law, because laws are never intolerant, either that is what he suggests or he has no argument at all in his defense

you mentioned he said more, if you can find it please give me a link

GePap

The state has no more power to regulate homosexual sex acts than heterosexual sex acts

agreed

Lincoln

I wonder why gays are siding with the Christian right here? They are now opposing the so called right to incest, adultry and bigamy. It seems like they would support Santorum and gladly extend the "right" of unlimited sex between anyone or anything anytime.

this looks like a strawman to me, being gay has no connection to incest, and incest has inherent risks to any offspring, so maybe that is why gay groups don't support incest, why should they lobby for things that don't have any bearing on them? the sodomy laws have a direct impact on their life, and why wouldn't they want them repealed?

They again single out themselves for special treatment under the law.

actually the government is the one who singled them out for "special" treatment when it passed laws that only applies to gays

[Lincoln]

The issue is the so called right to privacy. There is no such absolute right. You cannot privately abuse your children for example. "Getting the government out of our bedroom" is a great idea for a pep ralley but after the emotion wears off we are left with the real world where people do a lot of things illegal in their bedrooms (such as conspiring to commit a felony or having unprotected sex if you are an aids victim).

Unfortunately Santorum made the mistake of saying anything at all against a "gay" lifestyle. That makes him an automatic "homophobe". Funny that there is no such thing as a conservativeaphobe. Maybe we should just call the people who hate anyone who has strongly held religious beliefs a bigot.

[Guynemer]

News flash Lincoln--some strongly held religious beliefs are bigoted. Some aren't. This one, most assuredly, is.