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| Should prostitution be legal?
Posted: 9/25/2009 1:40:18 PM |
What I want to protect are the sensibilities of the majority ...
The majority can use their freedom of association to protect their own sensibilities. They can also place reasonable limits on public discourse. They can certainly limit open solicitation on the streets, for example, especially if it impedes traffic or other forms of commerce.
If public sensibilities called for all women to go around with bags over their heads, would you still feel so compelled to protect them? | |
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| Should prostitution be legal?
Posted: 9/25/2009 1:45:35 PM |
If the people of a state want to make incest or bigamy illegal, I can't see how a Supreme Court Justice can claim they're just being arbitrary. What business does the Court have forcing several Justices' personal views of social virtue on all of us?
Is this the best argument you've got? Straw man/slippery slope/false analogy. We've already discussed many times that there is a state interest involved in preventing marriage fraud (given inheritance laws) and incest (with risks to children that might be conceived and the cost to the taxpayers of those preventable conditions).
MD, would you please bang that gavel?
Asked and answered for the umpteenth time! | |
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jbogie
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Joined: 9/30/2008
Msg: 529 | |
| Should prostitution be legal?
Posted: 9/25/2009 1:52:38 PM | | you simply don't get it ace. we were born with every right. depending on which government you chose to live under, that government restricts certain rights. a woman in america has the right to drive a car provided she complies with the law. she loses that right if she moves to saudi arabia. this bullshit of "driving is a priviledge, not a right" is something we bullshit adolescents with to make them behave. even your right to drive can be deprived if you drive drunk. or is that not likewise a right that you are deprived of? society enacts laws because if every body excercised all their rights then that in itself would be stepping on other's rights. if everybody had the same morals and everybody were to always coordinate the excercise of their rights so as not to infringe upon others there would be little need for laws. | |
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| Should prostitution be legal?
Posted: 9/25/2009 6:22:05 PM |
Asked and answered for the umpteenth time!
There's just one minor detail--you keep drifting onto other issues, and then pretending you've answered my points. You haven't.
I'll just say this about the religious underpinnings of U.S. law, and leave it. A lot has been written about that subject, including, I heard today, a new book by Newt Gingrich. Saying the ultimate foundation of American criminal laws is Christian beliefs about right and wrong behavior is about as controversial as saying water's wet.
American criminal laws are based on English common law. You may think judges in England several hundred years ago had no right to start punishing certain intentional acts as crimes because Christian doctrine taught that those acts, if done with intent, were sins. But it's no less true because you disapprove of it.
You keep inserting your own opinions of what the rational basis for this or that law should be. Suppose inheritance laws or cost to taxpayers really are consequences of bigamy and incest. So what? Preventing those practical consequences isn't the purpose of morals laws--they're to discourage behaviors the majority views as immoral and unacceptable. The Court knows that, and a majority of the Justices are determined to get rid of all those laws. You seem to think some can survive, but they can't.
The Court's not about to buy state laws against bigamy, incest, or whatever, just because the states rewrite them to explain their real purpose is to prevent the kinds of harm you mentioned. I think Justice Scalia was exactly right that Lawrence "effectively decrees the end of all morals legislation. If . . . the promotion of majoritarian sexual morality is not even a legitimate state interest, none of [our laws criminalizing sexual activities] can survive rational-basis review." | |
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| Should prostitution be legal?
Posted: 9/26/2009 1:17:00 AM |
or is that not likewise a right that you are deprived of?
You really need to do a little homework on the difference between a right and a privilege. You're very sharp about many things, but in this case I'm not the one who's not getting it. | |
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| Should prostitution be legal?
Posted: 9/26/2009 1:20:01 AM | Saying the ultimate foundation of American criminal laws is Christian beliefs about right and wrong behavior is about as controversial as saying water's wet.
The social-contract theorists on whose work the Constittution was based refined those Christian notions into the concept of rights. In the process, they took those notions from a collection of irrational preferences and constructed a rational system of governance that derives from the consent of the governed.
But hey, if ya'' want to throw it all away so that some influential clergymen can lord it over us once again, God help us. | |
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| Should prostitution be legal?
Posted: 9/26/2009 7:27:41 AM | | Hey, once prostitution is legal, maybe they will develop some courses in school and in their senior year of HS require all girls to learn that craft as part of a well rounded education. | |
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| Should prostitution be legal?
Posted: 9/26/2009 2:37:12 PM |
It is the court's role to protect the rights of unpopular minorities against a tyranny of the majority.
One need only look at California's Prop 8 to demonstrate this is not always so. For history buffs, check out Plessy v. Ferguson. | |
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| Should prostitution be legal?
Posted: 9/26/2009 6:13:10 PM |
The social-contract theorists on whose work the Constittution was based refined those Christian notions into the concept of rights. In the process, they took those notions from a collection of irrational preferences and constructed a rational system of governance that derives from the consent of the governed.
You're right, as far as the Constitution's concerned. The Framers were influenced a lot by Locke, Rousseau, Montesquieu, and Smith. But the common law, which is almost entirely state law, was taken directly from England. It *still* hasn't changed that much. And when a court issues an injunction, or a write of mandate, or requires specific performance as a remedy, it's acting "in equity." That's a vestige of the chancery courts, or "equity courts," that the Church administered for the King in England.
To me, it's just interesting history, like Harvard and other universities starting as divinity schools. I think a lot of times the unreasonable concerns about religion in the public sphere are a ruse to justify intolerance toward religion. Nothing prevents any American from voting on the basis of his religious beliefs. Nothing about any of that threatens the Constitution, or ever has. And I'm the last one who'd want clergymen to lord it over me. I wouldn't live in a state where their moral beliefs were reflected in various blue laws. | |
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| Should prostitution be legal?
Posted: 9/26/2009 6:39:03 PM |
The social-contract theorists on whose work the Constittution was based refined those Christian notions into the concept of rights. In the process, they took those notions from a collection of irrational preferences and constructed a rational system of governance that derives from the consent of the governed.
1) I thought the social-contract stuff originated from Greece?
2) The framers of the constitution were not Christian, and were adimant about not having Christian policies influencing the Constitution.
the phrase separation of church and state is generally traced to the letter written by Thomas Jefferson in 1802 to the Danbury Baptists, in which he referred to the First Amendment to the United States Constitution as creating a "wall of separation" between church and state.
http://en.wikipedia.org/wiki/Separation_of_church_and_state
Jefferson was a Deist, not a Christian. So much so....
The Jefferson Bible, or The Life and Morals of Jesus of Nazareth as it is formally titled, was Thomas Jefferson's effort to extract the doctrine of Jesus by removing sections of the New Testament containing supernatural aspects as well as perceived misinterpretations he believed had been added by the Four Evangelists.
http://en.wikipedia.org/wiki/Jefferson_Bible
According to James Madison, the author of the constitution and perhaps one of the most important modern proponents of the separation of church and state, Luther's doctrine of the two kingdoms marked the beginning of the modern conception of separation of church and state.
http://books.google.com/books?id=I6tLmjLqRfAC&pg=PA242&lpg=PA242&dq=madison+luther+%22led+the+way%22&source=web&ots=ndGIJRRB-h&sig=46eyaJhyh-XpAOUFbaoyWIzaUH4&hl=en#v=onepage&q=&f=false | |
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| Should prostitution be legal?
Posted: 9/26/2009 6:50:38 PM |
I think a lot of times the unreasonable concerns about religion in the public sphere are a ruse to justify intolerance toward religion. Nothing prevents any American from voting on the basis of his religious beliefs. Nothing about any of that threatens the Constitution, or ever has. And I'm the last one who'd want clergymen to lord it over me. I wouldn't live in a state where their moral beliefs were reflected in various blue laws.
If you draw the line around your comfort zone, you're missing the point. Your moral rectitude is someone else's blue law. | |
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| Should prostitution be legal?
Posted: 9/26/2009 7:10:41 PM |
check out Plessy v. Ferguson.
Not a bad example--the case that authorized racial segregation. It's usually considered a pretty sorry decision. There's always a tug-or-war between the 14th Amendment and the police powers of state governments, and Plessy came down strongly on the side of those police powers. If Louisiana wanted to segregate its train cars by race, that was Louisiana's business, and the 14th Am. didn't prohibit it.
There's a very good (and very complex) legal argument that the 14th Amendment was never meant to give blacks absolute equality in all areas of life, but rather to give them all the basic rights and leave the rest up to the states. Whether we like that or not, it's probably true. And it doesn't mean Congress couldn't pass laws to make things fully equal--which it has. | |
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| Should prostitution be legal?
Posted: 9/27/2009 12:15:36 PM |
Your moral rectitude is someone else's blue law.
And where that's the case, Americans have always been free to move to a state where more people think like they do. The important thing is that the majority of voters in a state should have a right to enact the laws they want, provided those laws don't violate the U.S. Constitution.
Almost any law imaginable burdens some group of people more than others. Only under certain limited conditions, which the Court has described, does that mean a law violates the Constitution's equal protection or due process guarantees.
When the Court misreads the Constitution to protect the "rights" of certain groups several of the Justices favor, it unreasonably denies Americans one right that's obviously fundamental--their right to vote. It also oversteps its authority.
The Constitution creates a U.S. Supreme Court, and it authorizes Congress to create lower federal courts. That means Congress can also limit these lower courts' powers or even dissolve them. If Congress removed federal courts' jurisdiction to hear challenges against state morals laws, who'd hear them then?
State courts still could--but voters might counter by removing the judges who'd opposed their will. And the SCUS is already taking all the cases nine Justices can handle, even assuming it had jurisdiction to hear these challenges. | |
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| Should prostitution be legal?
Posted: 9/27/2009 12:31:10 PM |
The important thing is that the majority of voters in a state should have a right to enact the laws they want, provided those laws don't violate the U.S. Constitution.
On this much we agree. Where we disagree is on what violates the Constitution. I tend to agree with recent courts that equal protection applies more broadly than you do.
Almost any law imaginable burdens some group of people more than others. Only under certain limited conditions, which the Court has described, does that mean a law violates the Constitution's equal protection or due process guarantees.
We're in agreement on the rational basis test from what I can gather. My view is that it can be applied more broadly than you seem to want to acknowledge. That's OK, the cases that are brought will set the scope.
When the Court misreads the Constitution to protect the "rights" of certain groups several of the Justices favor, it unreasonably denies Americans one right that's obviously fundamental--their right to vote. It also oversteps its authority.
And when it leans in the opposite direction, it unduly denies the protection that it has the authority to mandate to Americans.
So, it is important that we get people in there who have enough integrity to set aside their ideology and look at cases rationally--not on the basis of religious or cultural preferences, and not on the basis of political ideology, but solely on the consideration of the competing rights of the individuals involved (be they a plaintiff against the rest of us, or one plaintiff against another). If they do that, they will never confound the intent of the Founders or exceed their authority, because that is what the Founders intended and authorized them to do. | |
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| Should prostitution be legal?
Posted: 9/27/2009 1:54:18 PM |
And when it leans in the opposite direction, it unduly denies the protection that it has the authority to mandate to Americans.
In a nutshell, the Court's substituting the rule of man for the rule of law. It solemnly affirms that substantive due process (its own creation, incidentally) applies only to certain "fundamental" rights, and it's established a clear standard for what makes a right "fundamental" for SDP purposes. And then, whenever detained jihadists, homosexuals, or some other group several Justices personally sympathize with are concerned, the Court finds ways to get around its own rules. And it does the same with its equal protection and other rules.
In Cleburne, which involved a home for the mentally retarded, in Romer, where it invalidated an amendment to Colorado's constitution, and then in Lawrence, the Court claimed it was just applying rational basis review. In Lawrence, the majority dutifully acknowledged that sodomy is clearly not a fundamental right.
But then it went on to talk all about fundamental rights, and to expand its standard for rational basis review to find a state sodomy statute HAD no such basis. It's like an umpire suddenly calling all pitches above the heads of one team's batters strikes, while solemnly swearing he's being impartial. Anyone who doubts the bias should read what Justice Scalia says in his dissent in Lawrence about how the standards the Lawrence majority cites to justify overruling Bowers, if applied to Roe, would call for overruling it, too.
In Cleburne, the trick was to use all the usual rational basis review terms, but then--sub rosa--scrutinize the state law more closely than R.B.R. called for. And in Romer, the Court applied rational basis review, but used a few words from a single hearing as a ruse to find that an initiative approved by about three-fourths of Colorado voters was motivated by animosity toward homosexuals. And therefore invalid, even under R.B.R.
People who understand the law know how disingenuous all this is. They also know it's not the rule of law. | |
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| Should prostitution be legal?
Posted: 9/27/2009 3:30:26 PM | In a nutshell, the Court's substituting the rule of man for the rule of law. It solemnly affirms that substantive due process (its own creation, incidentally) applies only to certain "fundamental" rights, and it's established a clear standard for what makes a right "fundamental" for SDP purposes. And then, whenever detained jihadists, homosexuals, or some other group several Justices personally sympathize with are concerned, the Court finds ways to get around its own rules. And it does the same with its equal protection and other rules.
There is no doubt some truth to this. However, in prior eras, it did the same with the intention of preserving an unjust but popular status quo.
People who understand the law know how disingenuous all this is. They also know it's not the rule of law.
People who understand that the law is just the current understanding of how best to apply the principle of justice, as conceptualized through the framework of competing individual rights, know that the rule of law applies to the majority as well as less-popular minorities--regardless of how he majority might vote. | |
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| Should prostitution be legal?
Posted: 9/27/2009 6:01:14 PM |
People who understand that the law is just the current understanding of how best to apply the principle of justice . . . the rule of law applies to the majority
I couldn't disagree more. You're stating the concept of equity--that the law is sometimes inadequate, and when it is, it must give way to the higher principle of justice. That concept came here from England, where the Church ran Chancery courts under the King's authority.
As I mentioned earlier, the job of the Chancellors was to dispense justice (in the heavenly sense) where the earthly laws of man failed to. American courts still act in equity when they issue injunctions, writs of prohibition or mandamus, grant remedies like specific performance, etc. I'm surprised to hear you favor equity so strongly, considering how clearly it mixes religious convictions about justice into public matters.
But the only principles of justice members of the Supreme Court have authority to uphold are not those of some self-styled world court or "human rights" organization, or those conceived by foreign judges they may admire. They are the ones expressed by the words of the Constitution of the United States.
As the Court's noted many times, its business is to determine cases according to the Constitution. No Justice has any business asking, "What does my sense of fairness tell me about this issue?" What they should ask instead is, "Does this measure violate the constitutional provision the party in the case before us claims it does?"
The rule of law should apply to everyone in this country. And when it's followed, the usual result is that laws reflect the will of the majority of voters. In most situations, a simple majority is enough. The notion that the Constitution protects every unpopular minority from discrimination by the majority--however dear it may be to the hearts of radical egalitarians--is just plain false.
For example, most states deny convicted felons the right to vote, because that's the will of the (undoubtedly bigoted!) majorities in those states. When a felon has served his sentence, though, why should he still have any debt to society? Yet no felon has any constitutional claim against the state law that's disenfranchised him. | |
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| Should prostitution be legal?
Posted: 9/27/2009 11:34:59 PM | I'm surprised to hear you favor equity so strongly, considering how clearly it mixes religious convictions about justice into public matters.
You didn't parse the entire statement. We don't need divine intervention. We have the framework of competing individual rights which, as enumerated by the Constitution and subsequent intepretation, supercedes individual laws when they conflict. That is the entire point of having a Constitution and a judiciary to interpret it.
Without that underlying framework, all laws would be arbitrary--just as they were when pronounced by a king. We don't need a king, and if the majority were to elect one, his reign would still be illegitimate. Majority rule only goes so far.
But then you tell me, what exactly is the limitation on the will of the majority if not an individual's inalienable rights to due process and equal protection?
The rule of law should apply to everyone in this country.
Yes, it should. And as long as a law is in effect we are bound to follow it, unless by following it we participate in the violation of another's right. Then it is our duty to stand with those whose rights are being denied.
And when it's followed, the usual result is that laws reflect the will of the majority of voters.
As in Jim Crow. Popular, unjust, and far too belatedly overturned.
The notion that the Constitution protects every unpopular minority from discrimination by the majority--however dear it may be to the hearts of radical egalitarians--is just plain false.
Is it? Why bother having one then?
For example, most states deny convicted felons the right to vote, because that's the will of the (undoubtedly bigoted!) majorities in those states. When a felon has served his sentence, though, why should he still have any debt to society? Yet no felon has any constitutional claim against the state law that's disenfranchised him.
This is a straw-man argument. There is a rational basis for denying felons the vote. They have already demonstrated a willingness to ignore the rule of law. Letting them vote or hold political office is an open invitation to corruption. | |
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| Should prostitution be legal?
Posted: 9/27/2009 11:57:02 PM | the legality or illegality of anything is just in the mind.
As long as you don't actually hurt anybody (including yourself) or anything.
What's they call illegal is just a way of getting money from you in the way of fees, fines and penalties.  | |
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| Should prostitution be legal?
Posted: 9/28/2009 1:10:16 AM | ^^^^^^The 14th Amendment recognizes the right of states to deprive persons of liberty, property, or even life. But it forbids them to do that "without due process of law." That's why states can put people to death for murder, or condemn land to build roads or dams, or deprive people of liberty in hundreds of different ways--for example by making them wait at red traffic signals, or making them be resident for some minimum time before they can be married, or requiring them to serve on juries.
These rights obviously are NOT absolute, or we couldn't have laws that infringe them. And we have those laws because the people who live in each state, usually acting through legislators they've elected, have enacted them. And bills ordinarily become law by simple majority votes. The limitation on the will of the majority is due process.
The amount of process someone's due varies. The Court's traditionally held that aliens in the U.S. illegally, for example, aren't due more than a hearing before being deported. And aliens outside the U.S. have never been due any process at all under our Constitution, because it doesn't apply to them. Under the laws of war, as Congress has defined them in the UCMJ, unlawful alien combatants captured on foreign battlefields--especially if they're out of uniform--get only as much of a trial as conditions allow.The U.S. Army filmed the executions of quite a few English-speaking German saboteurs in U.S. uniform who were captured during the Battle of the Bulge.
The due process guarantee usually refers to procedure--in particular, fair notice and hearing. Substantive due process is a doctrine the Court developed, and it's controversial for good reason. The reasoning behind it isn't that the law was unfairly used, but that the *substance* of the law--what it *does*--is unfair.
As you mentioned, the Court applied this doctrine for thirty-plus years in the early 1900's--"the SDP Era"--to substitute its will for that of the majorities who had favored the laws it struck down. I think it's even less justifiable to apply it now to protect whatever "liberty interest" five Justices agree to favor, while ignoring the will of large majorities. Especially when the Court disingenuously denies what it's doing. When it's not dealing with laws that discriminate against blacks, or dilute some group's vote, the Court has to be creative to end up with the result it wants. | |
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| Should prostitution be legal?
Posted: 9/28/2009 1:19:55 AM |
the legality or illegality of anything is just in the mind.
Do tell. I learn something every day. I doubt you'll think illegality is all in your mind, if you're ever arrested and charged with a crime you could be imprisoned for. | |
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| Should prostitution be legal?
Posted: 9/28/2009 4:08:13 PM |
When it's not dealing with laws that discriminate against blacks, or dilute some group's vote, the Court has to be creative to end up with the result it wants.
Ah. I understand your perspective better now. I agree that due process refers to _process_ and not _outcome._ However, I doubt that you'll ever find an unjust outcome that wasn't the result of an unjust process.
By "unjust," I don't mean a situation in which one person or group winds up in a privileged position relative to another. I mean a situation in which such differences arise not from the application of their differing abilities and efforts, but despite them--such as when opportunities are arbitrarily denied. | |
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| Should prostitution be legal?
Posted: 9/28/2009 6:49:13 PM | ^^^^^^If a state law infringes a fundamental right like voting, it may violate 14th Am. due process. Laws that do that must be narrowly tailored and necessary for some compelling government purpose. This "strict scrutiny" standard of review is almost impossible to survive.
The Court has applied an "intermediate" standard when reviewing laws that discriminate by sex. And in cases where a law claimed to violate due process doesn't affect either a right it's recognized as fundamental, it uses rational basis review. There are some differences in equal protection challenges--one question then is whether the law creates a "suspect classification" by race, etc.--but the standard of review varies in a similar way.
Justice Scalia was exactly right that the majority in Lawrence applied an "unheard-of form or rational-basis review." And I agree with him that "[the proposition that] there is no rational basis for the law here under attack is . . . out of accord with our jurisprudence-indeed, with the jurisprudence of any society we know . . . ." But as a legal expert pointed out in an article I was just reading, it's right in line with the bizarre holdings in three Guantanamo decisions in which Justice Kennedy played an important role.
Pretty soon, jihadists will have the Miranda right and their day in a U.S. district court, and the servicemen who are killing them will be up on murder charges. And I'm sure the current President would think that was all to the good. It's interesting to note that when the Chief Justice told FDR in 1942 that the Court would hear the appeal from the denial of the Nazi saboteurs' habeas petition, the President told him very plainly that if it ordered them released, he would ignore that order. | |
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| Should prostitution be legal?
Posted: 9/28/2009 9:21:20 PM |
interesting to note that when the Chief Justice told FDR in 1942 that the Court would hear the appeal from the denial of the Nazi saboteurs' habeas petition, the President told him very plainly that if it ordered them released, he would ignore that order.
It is entirely possible for courts and administrations to err. That's why we have both. It is also possible for legislatures to err, which is again why we have an independent judiciary. That's also why laws are not set in stone. Because they don't derive from some divine authority, they are subject to review and rational scrutiny. When the reasons for a law that restricts a right boil down to, "because we said so," that is no basis at all. That holds equally true whether those holding that position are a majority of the Court or a maority of the population. | |
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