Whether or not it is "bad precedent" is subjective.

What is wrong, in your opinion, with the right to privacy?

Oh, I certainly agree. That's why I say Minnesota should've been a bit more specific when writing their laws, because the ACLU is obviously exploiting a legal loop hole here. This loophole wouldn't exist of they were more careful with their wording of laws.

Perhaps something like "One can expect complete privacy in a public restroom, as long as their actions don't disturb the privacy of others" or something along those lines. This would mean someone going to the bathroom can expect privacy, but someone having sex, yelling obscenities, smoking crack, etc., should not.

I don't think the legal loophole is going to work, because Craig deliberately called attention to himself from the stall, thus negating the expectation of privacy.

Matt

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De duobus malis, minus est semper eligendum

Yea, I don't think the ACLU's case is going to work, either. It seems to stand upon how the previous laws were worded, rather than what the intention was.

Does anyone have any information on the original case in 1970 where the court ruled that people having sex in a public bathroom should expect a level of privacy?

Besides, all of this is really moot.

The legal issue here is whether or not Craig can withdraw his plea. That the underlying act might or might not have been unlawful is moot - Craig waived that defense when he pled guilty.

The only thing at issue is whether Craig's plea was voluntary and informed.

Matt

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De duobus malis, minus est semper eligendum

In general, no. But, if I were doing it with a complete stranger or with ANYONE in a public restroom, , absolutely.

But that does not preclude rational people from evaluating the intellectual support for that position. There is a right way and a wrong way to engage in interpretation of a legal text. Scalia puts it best in saying that a legal text should be given the meaning it was reasonably understood to mean by those who give it effect. In the case of the Constitution and its amendments, those who ratified them. And while there may be some gray areas, that does not mean that EVERYTHING is gray and "subjective". While we may not be able to determine if the society who ratified the Constitution would have found some things to be protected by the constitution, we know for a FACT that based on their customs and ACTIONS that they did NOT understand anything in the bill of rights to protect ANY sexual activity, let alone sex in PUBLIC places.


Well, I am not sure precesily what you are asking me. If you are asking what, in my opinion, is wrong with the notion that the Constitution contains a general right to "privacy", that is simple, because it does not, and no interpretation that it does has any textual or historic support based on the practices and tradititions of our society.

If you are asking me what is wrong with the concept of a right to privacy, that is a much longer discussion, that starts with me asking, the right to "privacy" to do what exactly? Why isn't there a right to "privacy" to engage in prostitution, or to enter into contracts for services unencumbered by such government restrictions as the minimum wage? What about beastiality or animal sacrifice? You through a term like "right to privacy" as though it has a clear meaning and set of implications, but rarely have I found that anyone who thumps the "right to privacy" drums do so without giving much if any thought to what that actually means.

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"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane

As a procedural matter that is correct, but not as a Constitutional matter. If, as the ACLU is arguing, the very law he has been found guilty of (whether by jury or plea) is itself unconstitutional, that invalidates any and all convictions under it.

If, for example, Congress made it a crime to insult elected officials, and you did so, confessed and plead guilty, only to have the Supreme Court later find in another case that the law was unconstitutional, you would still be released from jail on that basis even though you had pleaded it out on an "informed and voluntary" basis.

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"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane

What conditions, if any, do you think people should have the right to privacy?

Again, how can I answer that unless you articulate what you mean by a "right to privacy". The right to privacy to do what exactly? So far the basic argument on the left is that "private" matters are protected by the constitution to the extent that the actions themselves may not be criminalized. Do I have a right to "privacy" to use any drugs I want in my home? Do I have a right to engage in human sacrifice if the sacrificee is willing in the "privacy" of my own home? Please define this so called "right to privacy" giving a defintion that can be objectively applied determine whether or not it applies in any given situation.

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"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane

What would be your definition of "right to privacy?"

Well, I do not have one as I do not believe in a general "right to privacy" for the very reasons I have articulated. I actually believe that the Bill of Rights, as generally undestood at the time it was ratified, actually protects those specific matters of "privacy" which I believe ought to have constitutional protection.

I do not believe that there is ANYTHING which by virtue of being "private" suddenly becomes protected from being proscribed by the Constitution. There is nothing in the Constitution that protects sodomy--as evidenced by the fact that anti-sodomy laws existed before and after the ratification of the Bill of Rights and were never understood by the people who ratified them to be prohibited by the Bill of Rights. It doesn't matter whether that sodomy is in public or "private", the act itself is clearly within the perview of the state's historic police powers.

Now, as a PRACTICAL matter, there are SPECIFIC protections in the constitution that restrict the government from discovering criminal acts committed in a truly "private" setting, but that is very different from saying that the constitution prohibits the criminilization in the first place.

Now, perhaps you could explain to me why we do not have a "right to privacy" to use drugs, engage in human sacrifice (with a willing sacrificee), engage in beastiality, etc. etc. in "private"?

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"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane

Would you be in favor of a police state?


I never claimed that there was a right to privacy for these things.

Jesus, why do liberals always scream police state when we allow government to continue to do what it has done for hundreds of years under our constitution just because some people now think we shouldn't. Does every policy disagreement have to be a matter of such dramatic overreaching?

I told you what I am in favor of. The protections that were written and ratified into the constitution by the bill of rights as they were understood by those who ratified them. Do I favor police kicking in your doors to find out if you are committing a criminal act in your home without probable cause, no, but my constitution proscribes that, that is FAR different from saying that the constitution makes an otherwise criminal act constitutionally protected just because there are protections in place that restrict the manner in which police may gathering evidence of the crime.

Would it surprise you to know that until the 1960s even "illegally" obtained evidence was admissable in court, and that the remedy to those whose fourth and fifth amendment rights were violated were civil in nature (you could sue in civil court the police for illegally entering your home, but the evidence obtained could still be used against you in a CRIMINAL proceeding, and yet nobody for the first 185 years of our nations history seemed to think that they were living in a "police state"

Then exactly what do you define the "right to privacy" to mean exactly?

That is why I have such a problem with people tossing that phrase around, it has absolutely NO thoughtful meaning. What in the phrase "right to privacy" helps anyone undestand why abortion or sodomy are constitutionally protected "rights" but not prostitution or beastiality?

I mean christ, people that believe sodomy in a PUBLIC restroom is constitutionally guaranteed right under the general "right to privacy" seem to have no problem with government banning smoking in PRIVATELY owned business which happen to invite the public to patronize on a voluntary basis. I just want a clear definition of what YOU think the "right to privacy" means so that I can determine whether or not any given situation is protected under your notion of that right

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"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane

The same reason we screamed when fire hoses were used in the south in the 1960's.

Why do conservatives always use "tradition" as a way of justifying their actions? What about one of Jefferson's favorite traditions, slavery? Just because it is a tradition doesn't make it right.

The Constitution was made amendable because the founding fathers knew that they were not perfect, and that we should be able to change our constitution with the social changes that occurred.

While I am not arguing for the right of privacy for illegal acts, especially the flagrantly horrific acts such as human sacrifice that you are so keen to bring up, I am arguing for the right to privacy of other things. In medical records, for example, I believe very strongly in a right to privacy. It is nobody's business but your own if you have, say, psoriasis or cancer.

As far as sex goes, many people still fell embarrassed talking about it openly, so I feel that the sex acts you commit in private should be private (Again, if they are legal. I am not an advocate for private pedophilia). As far as the Craig case, I am unsure as to the exact facts, given the differing stories, but I think that may fall in the gray area of "right to privacy."

As a general rule, the "right to privacy" is an individual's right to have their legal acts that they do away from others kept private. If our government ever invaded that "right to privacy," I would agree with you: I am screaming that it is a police state, and rightly so.

Why do conservatives always use "tradition"? Because when you are talking about the Constitution--or any other legal text and how to determine its reasonable meaning--that is one of the things you are SUPPOSED to use when interpreting any vagueness in a legal text. If the question is whether something in the constitution as written prohibits a certain law, one of the most ancient and accepted methods of answering that question is to look at the continuous history of the society's traditions and practices. Did those who wrote and ratify the law in question act in a manner which would contradict the understanding you are asribing to it? If so, then that is a pretty clear indiciation that the interpretation that you are trying to read into it was NOT what it was reasonably understood to mean at the time of the founding.

And yes, the Constitution can be amended, and that is EXACTLY how it should be changed, not by pretending that it "lives and breaths" and that the meaning somehow changes from what we KNEW it to be in the past (there is NO doubt that laws against sodomy and general, and ANY sexual activity in public places specifically were never understood to be proscribed by anything in the constitution evidenced by the fact that such laws were on the books and continued to be passed and enforced before, during, and after the ratification of the constituion for nearly 200 years.). If you want to change it, convinvce your fellow citizens of your view and amend it properly.

Same with gay marriage, it is fundamentally disingenuous or dishonest to suggest that anyone at the time of the passage of any part of our constitution understood it to require recognition of same-sex marriages or any other type of same-sex relationship, it does not mean that today anymore than it did when it was ratified. But some simply pretend it does and impose this view by judicial fiat against the legitimtate and stated will of the people.

Liberals always want to couch their every policy preference as though their views are simply not left to the people to decide as a matter of policy, but are mandated one way or the other by the Constitution, even to the extent of ignoring utterly unambiguous parts of the text which say exactly the opposite of what they believe (i.e., the constitution clearly and unambiguously presumes the existence of crimes punishable by death, and therefore the death penalty cannot be reasonably interpreted to be unconstitutional).

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"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane