Well, Roe didn't, but the judicial temperment which led to Roe did in fact created a string (and a increasingly thin substanceless taffpull like string at that) of precedents which stretched the fundamentals of Roe to--until very recently--create an absolute moratorium on even the most widely supported restrictions. It was just recently that a Partial Birth Abortion ban (supported by the overwhelming majority of the american people by greater margins then Roe v. Wade as a matter of policy), and it wasn't "living" constitutionalists who finally allowed We the People to once again outlaw that horrific and barbaric practice, in fact they were dissenting opinions...ignoring the constitution, the two equal branches of government, and over 70% of We the People.

And then there was the decade plus the lawless "living constitutionalists" banned the death penalty...which only an utterly stupid or dishonest person could claim was banned by a document which clearly provides for the imposition of the death penalty.

Even Stare Decisis is used inconsistently and opportunistically by "living constitutionalists". Lawrence v. Texas ignored an absolutely clear precedent that was less than a decade old. So much for the left wing's putting precdent and stare decisis on a pedastal.

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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

So, you think that the government should be peering into your bedroom, and charge you with a crime if you receive a blowjob from your wife?

__________________
When they come a wull staun ma groon
Staun ma groon al nae be afraid
Thoughts awe hame tak awa ma fear
Sweat an bluid hide ma veil awe tears

Just demonstrating how ignorant you are. My originalist reading of the Constitution actually DOES prohibit the government from "peerin into [my] bedroom" absent probable cause. That is based on a very clear and firmly established understanding of the Fourth Amendment dating back to the founding. I don't need the constitution to "live" or "breath" to proscribe that.

But you are not arguing for "keeping government out of the bedroom", you are arguing that people have a privacy right to do anything they want "in private", even if it were otherwise perfectly reasonable for the government to ban it.

Doubt what I am saying? Is it the location or the action you are defending? Is it unconstitutional to pass laws against rape, assualt, drug use, murder, beastiality, etc. "in the bedroom".

__________________
"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

Is it Constitutional to ban drug use?

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If a neocon whines about big government wealth redistribution, just ask him what he thinks about the portion of that big government that sends aid to Israel.

Not at the Federal Level--but not because the Constitution affirmatively prohibits Federal anti-drug laws, but because it does not specifically grant such a power to the Federal Government. But the States may absolutley pass laws banning drug use.

Need that clarified, consider history. There have been state and local government bans on alcohol (aka "dry counties) since the first days of the Republic. But it required a Constitutional Amendment to ban the sale and distribution of alcohol at the Federal Level. Why do you think that was?

__________________
"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

But aren't there many anti-drug laws and agencies at the federal level? Are there amendments banning certain drugs?

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If a neocon whines about big government wealth redistribution, just ask him what he thinks about the portion of that big government that sends aid to Israel.

There are such laws and agencies, and there shouldn't be. With one caveat, Congress CAN exercise traditional police powers over territories and the District of Columbia

__________________
"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

Then why your issue with Lawrence v. Texas?

__________________
When they come a wull staun ma groon
Staun ma groon al nae be afraid
Thoughts awe hame tak awa ma fear
Sweat an bluid hide ma veil awe tears

Because Lawrence v. Texas had NOTHING to do with "bedrooms", it basically found that the Constitution prohibits laws against sodemy. This is clearly contrary to an originalist understanding of ANYTHING in the document.

Now, whether or not it SHOULD be criminalized is an ENTIRELY different, and ABSOLUTELY appropriate one, but for the court to simply declare that something which was clearly considered permissable by those who wrote and ratified the constitution and its subsquent amendments is not NOT permitted for fundamentally no reason or basis other than the fact that those ruling on it is an abuse of its power and any justice who ruled so should be impeached.

Even for those who claim to support a "living constitution" on the grounds of "times change" or "reflecting modern society and not 200 years dead white men" can't seem to explain why most of their favored rulings actually LIMIT the flexibility of our system and more often than not are in direct oppositions to the will of the majority of the people TODAY (as well as those 200 years dead white men).

So, you explain to me, other than simply substitute their personal opinions for that of the law and the people, what basis is there for judicial interpretations of the constitution that:
1. Are contradicted by the plain text and/or overwhelming evidence of contemporaneous acts by those who wrote and ratified the text
2. Actually diminishes flexibility in a democracy that was once there
3. Is opposed by a majority of the population when it is ruled upon

And most of your favored rulings actually face all three of these facts:

Roe v. Wade -
1. There is NO text in the Constitition saying one thing or another about privacy in general or abortion specifically, and no reasonable person can claim that there was anything that was understood by those who gave legitimacy and power to the Constitution through ratification that was inconsistent with proscribing abortion, given that such laws were common at the time and were not seen as inconsistent with the new Constitution or bill of rights (and this includes every subsequent amendmetn).

2. Prior to Roe v. Wade, how our society could deal with this issue was subject to FAR more flexibility. We as a people, from state to state, were free to make any and all abortions available on demand, or totally restricted (save for the physical life or safety of the mother--which is also long and firmly established affirmative defense for those charged with killing an innocent person). And the people of each state could choose from a plethora of options and compromises to suite the will of its own citizens. Are things more or less flexibile and subject to "changing times" then it was before Roe v. Wade?

3. There was a solid majority opinion AGAINST legal abortion nationwide at the time (evidenced by the overwhelmingly common fact of restrictions in states across the country)

__________________
"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

Here's my stupid question of the day: Can I go into the men's room, lock myself in a stall with a guy, and get it on? or could I take him in he ladies room? What if we went into one of those "family" restrooms...you know the one that is just one really large public restroom with one toilet and stuff...you know a large private "public" restroom?

How much privacy is really privacy? In a bathroom stall, you can still see between the edge of the door and the wall and you can see people's feet...which would be a dead give-a-way that there are two people in there who are most likely not using the facilities for the intended purpose. I've only been in one public restroom (at a bar, of all places) that had floor to ceiling walls between stalls and actually had doors with doorknobs - that was privacy. If I can hear the person next to me...that ain't privacy.

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Well, you probably wouldn't be allowed because I'm guessing private establishments would have rules that you implicitly agreed to follow when you entered said establishment that indicate that men are not allowed in women's toilets and women are not allowed in men's. Now, since I personally do not see anything harmful in having men and women use the same room as a toilet and since I do not support (see no rational reason for it) laws against having sex in a location where you are visible to others, I would assume that it would be up to the private establishment to decide if that is allowed or not. However, chances are that Americans are more or less ashamed of human sex and human nudity and have laws against it.

I'm not sure, but it sounds like your question would be answered depending on the policies of the private establishment.

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If a neocon whines about big government wealth redistribution, just ask him what he thinks about the portion of that big government that sends aid to Israel.

Speaking of stupid questions i know it seemed ridiculous at the time O'sullivan but there was a reason why i asked:

Senator Pleads Guilty After Arrest at Airport

Unfortunately it was all too predictable that the ACLU would take this up (or some other loony fringe group) but in this instance thankfully the MN SC saw sense. I guess you called it right...

Wow, you are VERY good at missing the point, aren't you?

1) By legislating the illegality of a sexual act between two consenting adults, the government must enter the bedroom in order to enforce it. So, you are saying that you are comfortable with the government monitoring your sex life.

2) The founders recognized and specifically sought to prevent the tyrrany of the majority, so majority opinion is irrelevant.

3) The Constitution is vague in its language. Why? Because the writers knew that it would have to be interpreted in context. While "privacy" is not enumerated, the Constitution SPECIFICALLY states that it does not exclude rights that aren't enumerated. Plus, given that the People have a right to be secure in their person (that would be the 4th Amendment), it is not a particular stretch to include that medical acts, including control of one's own reproductive system (that's in the person, if you've never studied anatomy) is guaranteed. Thus, Roe v. Wade makes good sense, especially since it specifically limited abortion to times before the fetus was viable.


It is a grand stretch of the imagination to believe that the founders could possibly have conceived of the issues that result from the technology we have today. The right to die? Medical care was a bit lacking back then. Science? Rudimentary.

If you want to live somewhere where the government can spy on you in your bedroom and has ultimate control over your body, you may want to look somewhere else.

__________________
When they come a wull staun ma groon
Staun ma groon al nae be afraid
Thoughts awe hame tak awa ma fear
Sweat an bluid hide ma veil awe tears

That is simply not true and only an unimaginative fool would leap to that conclusion. You need only to think of the case that started this discussion. Nobody was in Larry Craig's bedroom.

You seem to be arguing that because the Fourth Amendment makes monitoring for and enforcing a crime if it is committed in certain areas for which there are limitations on SEARCHES by government, then this is the functional equivalent of saying the constitution forbid the criminalization of the ACT itself. This is foolish.

Sure, you can ram your boyfriend up the ass in the privacy of your own bedroom, and the Fourth Amendment's search and seizures clause pretty much guarantees that the government will not affirmatively find out about your criminal conduct. BUT, if you were to VIDEOTAPE your escapades and put it on the internet, the government would have perfectly admissable evidence with which to prosecute you without ever having been in your bedroom.

You are basically arguing that any crime that the Fourth Amendment makes more difficult to enforce is precluded by the Constitution from being a crime to begin with. Well, the Fourth Amendment makes laws against beastiality and drug use in the privacy of my bedroom very difficult for the state to enforce...are the laws themselves unconstitutional?

Yes, they sought to prevent tyrrany (including but NOT LIMITED TO that of the majority). So they created a WRITTEN Constitution as a LEGAL TEXT, which was to be treated as such. As all legal texts, it says some things, it doesn't say others, and has a set reasonable meaning which is fixed and immutable unless formally changed (in this case by Amendment).

But what you are supporting is nothing less then the tyranny of the minority--in this case a minority of five sitting justices.

The ONLY claim to legitimacy the courts have in overrulling acts of the other branches is that the Supreme Law of the land supercedes and proscribes that act. If that Supreme Law is not truly a legal text with a fixed meaning, then there is NO legal justification for the courts to strike anything.


You confuse several distinct issues. First, the Founders as educated men realized that there could always be disagreement on the precise meaning of a finite text as to how its laws and principles would apply to any of an infinite set of possible situations. That is not to say that they did not believe it to HAVE a legitimate, reasonable, and FIXED meaning.

The very purpose of a Judge is to INTERPRET what that meaning is, not to CREATE IT. And even in this task, Judges are supposed to be constrained by what are known as the Canons of Construction. Rules for how judges are supposed to discern the reasonably understood meaning of the text. These include:

1. When the words are unambiguous, they are supreme (not every part of the constitution is bathed in ambiguity--in fact NONE of it is made intentionally vague--take capital punishment, there is NO ambiguity in the fact that the Constitution and the Bill of Rights clearly provides for the existence of "capital" crimes, and thus cannot be reasonably interpreted as having banned capital punishment)

2. Every part of a law must be read as having substantive meaning or purpose, if there are two possible interpretations, one which renders a part of the text without any substantive effect or purpose, one that gives each part effective meaning, the latter must be applied

3. Unless specifically indicated otherwise in the law, words are to be given their ordinary and common meaning at the time of the creation of the law.

4. No legal text should be interpreted in such a way that results in one part of the text contradicting another part. And no two legal texts should be interepreted to contradict each other if there is another reasonable interpretation of one or both which does not result in a contradiction. If there is no reasonable interpretation of two different legal texts which produces no contradiction, the more recent (if the texts in question have the same legal weight--two statutes for example) the more recent is controlling.

5. Where general words are followed by an enumeration of more specific terms, the later is to be read as qualifying the former

6. (Refering to #5) Items not on the list are not covered or included under the law (unless there is an affirmative indication that the list is illustrative rather than inclussive--such as being preceeded by "including", or "such as", etc...

7. When ambiguity exists, its meaning may be determined by looking at how similar or identical language in contemporary legal texts or documents defined those terms.

8. When a portion of a text is ambigous, its meaning can be determined by its relationship to the rest of the text

9. When a list of words has a modifying phrase at the end, the phrase only refers to the last item listed unless clearly indicated otherwise

10. Texts may not be reasonably interpreted in a manner r which conflicts with the fundamental societal values of those who wrote and gave it effect

11. In criminal matters, ambiguity should be interpreted in favor of the defendant

12. The the underlying reasoning supporting an interpretation, consistently applied would yield absurd outcomes, it is an unreasonable interpretation

13. When an interpretation would result in abridgement of long-held rights or powers of the state, or result in a substantial policy change, the court will not hold that interpretation unless clearly stated by the legislature.

There are other, more highly technical parts of the Cannon, but these are the major ones. These are ancient, some of which dating back to ancient Greece. They were known to the Founders and were assumed to be applied by the Judiciary in exercising the "judicial" power.

As I said earlier, there is no part of the Constitution was was made intentionally VAGUE. There ARE parts of the constitution that were made intentionally BROAD, leaving certain questions of public policy to the will of the people at either the Federal or State Level.

Finally, while even the founders disagreed as to what precisely was the correct meaning of the constitution, none of them believed there to be NO correct and fixed meaning. Yes, there were disagreements over whether the Neccesary and Proper clause should be read narrowly or broadly, but neither side believed that whether it should be read narrowly or broadly was subject to change merely from the passage of time. Those who believed it should be read narrowly believed that this was so until such time as the People amended the Constitution, and likewise with those who believed in a broader reading.

Finally, it is simply absurd to conclude, based on the words and deeds of the founders and the early Republic that the Judiciary was intended to be the most powerful branch, by virtue of being empowered to summarily CHANGE the the actual meaning of the text. In fact, the founders themselves dismissed such concerns and described the courts as the least powerful branch.

__________________
"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

More disingenuous nonesense. Please cite for me any part of the court's reasoning in Roe, Lawrence, or right to die cases which attached the creation of the newly created right to changes in technology? Please, explain to me what exciting new scientific advances in sodomy have occured since the founding?

In fact, where sodomy is concerned, scientific discovery could only argue for MORE power for the state to regulate and proscribe given the fact that we know that it is a highly risky activity which has resulted in tremendous economic and human suffering.


As I said, my Fourth Amendment protects against the government spying on me in my bedroom for the purpose of criminal investigation absent a probable cause. That doesn't mean that nothing I do in my bedroom is legally protected by the Constitution.

I will ask again, why don't I have a constitutional privacy right to use drugs, engage in beastiality, eat transfats, engage in prostitution, etc. etc. You still have yet to explain WHY any or all of these are not protected under you yet to be defined "right to privacy".

In fact, this country WAS living under the Constitution I understand us to have for almost the entire first 200 years of our history. How fucking hysterical that nobody seemed to realize we were living in a police state....

__________________
"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