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Judge rules condom requirements in porn are constitutional

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  • #46
    Re: Judge rules condom requirements in porn are constitutional

    Originally posted by Marcus1124 View Post
    Wrong, the Ninth Amendment, to the extent it recognized any judicially enforceable rights, referred to those already established rights of Englishmen, and not to some nebulous body of as yet to be determined rights.

    That said, it does not actually recognize any judicially enforceable rights, it's purpose was do resolve the problem that the Federalists had with including any Bill of Rights in the Constitution, namely the believed it to be utterly unnecessary. The Federalists, who rightly viewed the strictly limited enumeration of powers as a leash on scope of federal power, believed that these limited powers did not put the Federal Government in much of a position to actually violate any of the rights concerned, and worried that a superfluous statement protecting rights which they did not believe were under any threat would allow the misinterpretation of such an enumeration to mean that the scope of the federal power was broader than it actually was limited to by the strict enumeration of powers.

    Hence the Ninth Amendment, which was viewed as nothing more or less than a prophylactic against that erroneous conclusion.
    It does not say that. It says: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." It's there because it guards against the longtime legal principle of construing written laws, contracts, etc: "Inclusio unius est exclusio alterius" (The inclusion of one is the exclusion of another). IMO it was very smart to put that in there with the Bill of Rights as, governments being as they are, most certainly some would argue such a construction. Indeed that's argued by plenty as the issue suits them, and thankfully it's there along with expressed 'biggies' they had just faced violations thereof under recent British rule (Madison was extremely naive and foolish IMO to presume the opposite concerning the Bill of Rights inclusion including the 9th, and as an attorney and a politician he ought to have known better).

    Rights exist because they do. It is not depending on whether a government chooses to recognise them. That includes the Constitution itself...it gives no rights because the people already have them but merely mentions some of them. Of course it is essential that governments do recognise them and/or people come to recognise their existence, often failing to do so blinded by bias, prejudice, self-serving convenience, nannyism, more primitive social/educational development, etc. That language does not state that it recognises only those rights then recognised..it's merely a boilerplate statement that others do exist and that the mentioning of some specifically shall not be used to disparage others.

    They were also not Englishmen. They were Americans. And although some until the Revolution still referred to themselves as Englishmen, many were even 4-6 generations American and far more commonly referred to themselves as such, and moreover, a sizable percent were not even of English extraction at all, e.g., Irish (Scotch-Irish), Scots, Welsh, French Huguenot, Sephardic Jews, Euroindian due to mixing with Native Americans, etc, who often held divergent POVs from the English if not opposed to many aspects of it. Much of the Constitution acts in direct contravention of English law/practice/beliefs, etc, such as theory of governance, form of governance, anti-nobility, repudiation of English practices such as subject matter addressed in the Bill of Rights and other prohibitions such as the treason requirements clause, prohibition against bills of attainder, etc. They were attempting to form a government with beliefs and values of Americans who were materially different from the English practices, although they obviously did share much in common too given the former colonies' history.

    One aspect of that IMO is privacy, a right that the English still to this day haven't made part of its legal tradition except in part due to EU laws. Obviously it's lack of respect for privacy and, more directly, the individual himself/herself, led to a large number of abuses that were specifically mentioned with the anti-disparagement clause of the 9th and reservation of state's powers in the 10th, all to keep government on a leash. What was commonly mentioned was the most serious violations they had just experienced, hence IMO why people were so forceful about mentioning them directly to put those bogeymen to rest most specifically. The 9th was IMO intended to keep new bogeymen from erupting due to disparagement of other rights not mentioned.
    Last edited by O'Sullivan Bere; 09-03-2013, 06:47 PM.

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    • #47
      Re: Judge rules condom requirements in porn are constitutional

      Originally posted by Marcus1124 View Post
      The problem with limiting the generalized "privacy right" Griswold created is the fact that the right was created whole cloth, and was in and of itself the beginning of the elasticity, stretching, and twisting you warn off. It too several explicitly enumerated and limited rights and stretched and twisted them into a generalized right which was based not a bit on the , and limiting the generalized right to "privacy".
      The same is often argued with decisions relating to specifically mentioned rights or other provisions. People will disagree with decisions per person, c'est la vie, and there are amendment provisions to address that and other ways to address it, e.g., judicial appointments, etc. Do I disagree with some decisions on privacy? Sure, but I feel likewise with decisions relating to enumerated ones too.

      Originally posted by Marcus1124
      It starts with the breathtakingly obvious statement (held in previous rulings) that the First Amendment freedom of speech, protects speech broadly (this is not some remarkable notion given that the very terms of the amendment are broad and unqualified "Congress shall make no law...abridging the freedom of speech". But it then goes on to draw a completely faulty analogy, suggesting that because a very broadly worded text necessarily applies broadly, that this means that two other, very specifically worded amendments, should actually be read a single, overarching wording that encompasses not just those specific privacies and spheres of protection clearly encompassed by their terms individually, but creating instead a general right (yet ultimately nowhere to be actually validated by any textual terminology).
      Pretty much no right is absolute, but the language would make it seem so. Again, things are implied, not always meant purely literally. Moreover, that kind of construction gives no value to the 9th, which expressly states the existence of others not mentioned. No provision of the Constitution should be considered mere surplus, and that's not the interpretive tradition then or now in construing written instruments.

      Originally posted by Marcus1124
      The problem is, there are no limits to be found in the text of the constitution, nor or long history of customs and traditions on the breadth, depth, and application of a right which itself is not to be found in those either.
      That's circular IMO in that it presumes as fact the argued position. Moreover, see above.

      Originally posted by Marcus1124
      The Constitution grants a specific right to for "persons, houses, papers, and effects" to be free from unreasonable searches and seizures. This was not a free-wheeling right to engage in criminal or proscribed activity in "private", merely set the standards by which the government could intrude upon the above referenced in investigating said crimes. But the court has treated it as though it is a proscription against some (but only those deemed so by the court with no textual or historical basis for the distinction between what is or is not, but rather then personal views of five of the nine from case to case) laws governing what people may do in "private". Why a right to engage in certain sexual activities, but not consumption of drugs? (for example).
      See above. No right, even expressed, is deemed absolute (apart from maybe privately held freedom of thoughts as opposed to advocacy and actions upon them). That would include privacy just like any other like speech.

      Of course, common sense should dictate that privacy cannot be a shield to general conduct that's truly the public's business or unduly affects them. Can we rape people in our homes? Of course not. But is it the proper business of the government to tell you how and how not to have consensual adult sex with your wife in the privacy of your own home? IMO no, and I think a huge consensus of Americans believe that involves a right, not a privilege or mere liberty interest that can, should they choose, government officials regulate. Drugs? It's generally not a victimless crime and most often triggers Commerce Clause powers and even in completely privatised circumstances it can and is obviously argued that compelling state interests exist to warrant regulation.

      And before we even get to that, something must in fact actually implicate privacy. Commercial porn for publication is the exact opposite of that. One cannot seriously claim a right to privacy when putting their sex on DVDs, the Internet, etc, for public view and sales, which also trigger express powers granted to the government too, e.g., Commerce Clause, etc. Do we have laws prohibiting you from banging your wife in the middle of Pratt Street in Baltimore? Absolutely, and citing the right to privacy has no relevance at all because you're doing it in open public with no reasonable expectation of privacy whatsoever.

      Originally posted by Marcus1124
      This creation of rights unsupported by the text or history of the constitution is what leads us to such congnitively dissonant views that the state may regulate under its broad police powers sex conducted for commercial purposes in a way it would not otherwise be able to regulate "private" sex, but cannot regulate abortions when they are also commercial transactions (using the same broad definition of "commerce" that underpins so many other powers granted to the government by the court). If the government can regulate or ban the SALE (as in COMMERCE) of cigarettes, alcohol, drugs, etc..., could it not also ban the SALE of contraceptives under the same constitutional principles?
      Cognitive dissonance IMO comes from broad written words too like those found in the Constitution. Hell, just look at the Strasbourg court decisions relating to ECHR...e.g., IMO "right to family life" being stretched to mandate dole and housing for illegal immigrants even terrorist gate crashers like Abu Qatada, etc.

      Article 8 – Right to respect for private and family life
      1. Everyone has the right to respect for his private and family life, his home and his correspondence.
      2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
      Article 8 of the European Convention on Human Rights - Wikipedia, the free encyclopedia

      IMO permitting baby and welfare anchoring by illegal and especially dangerous illegal aliens ought to clearly fit within section 2, but there, like here, I argue for appointment of jurists supportive of my POV and/or amendments that abrogate what I believe are poor decisions. Sometimes it's worse to write broadly like the US or ECHR chose to do rather than some kind of Prussian detailed thing. But that's the flex intended by simply stating agreements on a concept without full delineation. C'est la vie...it comes down to choices and we've long preferred that choice of draftsmanship from which we get benefits and occasionally--depending on one's POV--disagreements.
      Last edited by O'Sullivan Bere; 09-03-2013, 07:04 PM.

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