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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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| Should prostitution be legal?
Posted: 9/28/2009 10:12:15 PM | Ok,... I'll admit, I didn't read all of this thread, but teaching sure isn't paying the bills!!! I've been for leagalizing prostitution (and pot and regulating both) for a long time. Hmmmm... *daydreaming of working on my back instead of my feet*... It could make for a very interesting career move at my age!!!
 
Now back to reality. As you were. | |
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| Should prostitution be legal?
Posted: 9/28/2009 10:36:35 PM | ^^^lol
Gee, thanks. Sadly, that's the best offer I've had all day!
Let me SLEEP on it.
P.S. - What makes a "good " prostitute? Are there schools for prostitutes, or at least conventions where they can learn tricks of the trade??? Sheesh, now I'm kind of interested! | |
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| Should prostitution be legal?
Posted: 9/28/2009 11:01:04 PM |
That holds equally true whether those holding that position are a majority of the Court or a maority of the population.
That's true. An arbitrary law is a contradiction in terms. The difference is that the Supreme Court has the last say. If five of the Justices impose judicial fiat (now dressed up as "empathy") it's not so easy to correct.
Also, the Court has often stated that respect for separation of powers requires it to presume that legislative enactments that were duly legislated are valid. There's also the related matter of respecting the will of the majorities whose votes state laws represent. Otherwise, their fundamental right to vote will be infringed too far.
That's why rational basis review isn't very searching--the Court has always realized it shouldn't second-guess laws without some good reason. But most Americans have always thought--and I'm sure still do think--the majority has a right to make activities like incest, bestiality, adultery, bigamy, and similar illegal. If a majority of Oregon voters wants to make those things legal, that's their business. But if a majority of Arizonans wants to make them illegal, they should also have that right.
That's the problem with Lawrence. Everyone agreed that the Texas sodomy statute at issue was silly. It may even not have served any legitimate government purpose. But why write the opinion so broadly that it leaves no room for a whole array of morals laws intended to prevent activities that almost certainly are NOT victimless?
Talk about a threat to our "liberty interests"--what about an arrogant, overreaching Supreme Court? I've heard a lot about this or that way the Patriot Act, or the detention of jihadists, ignoring FISA, or some other ghastly thing supposedly has trampled our freedoms.
But the Court's decisions directly determine how we live--even our physical safety--and hardly anyone seems to notice. What about hindering our military's efforts to protect this country, as the Court has been doing for six or seven years now? Apparently infringing our right to live doesn't concern several of the Justices very much. Tyranny comes in on little padded feet, through the side door. | |
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| Should prostitution be legal?
Posted: 9/28/2009 11:29:23 PM |
or at least conventions where they can learn tricks of the trade??
Technique's a poor substitute for raw enthusiasm. Give me the woman who's motivated by lust instead of lucre, any day.
My closest encounter with a prostitute came in Tijuana, when I was about sixteen. Several of us were drinking and raising Cain, and we took a taxi out beyond the end of the paving and the street lights. We got out at a dirt clearing where there were several bungalows, with a couple trash barrel fires providing heat and light. The ladies were outside, along with a couple guys who looked way too tough for me.
We went inside to where they were showing stag films, and there were some Marines and sailors there. More bombed even than we were. A woman in a tight dress, who must have been in her forties, walked over and sat on my lap. Another one was mussing up the hair of a sailor who was half passed out--I remember she called him "Curly," asking if he didn't want to "go to the room now." He was probably far too drunk for that, but my concern was how to get away, because I was having second thoughts.
We got away all right, and no one rolled us, but then things went south. A few hours later, a friend and I ended up in the drunk tank for "fighting," which we really weren't--but that's another story. The sins of youth. | |
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| Should prostitution be legal?
Posted: 9/29/2009 1:03:53 PM | Also, the Court has often stated that respect for separation of powers requires it to presume that legislative enactments that were duly legislated are valid. There's also the related matter of respecting the will of the majorities whose votes state laws represent. Otherwise, their fundamental right to vote will be infringed too far.
The burden of proof should always be on those who want to challenge a duly enacted law.
That's why rational basis review isn't very searching--the Court has always realized it shouldn't second-guess laws without some good reason. But most Americans have always thought--and I'm sure still do think--the majority has a right to make activities like incest, bestiality, adultery, bigamy, and similar illegal. If a majority of Oregon voters wants to make those things legal, that's their business. But if a majority of Arizonans wants to make them illegal, they should also have that right.
Incest is a crime against a person. Bestiality is a crime against property, animal cruelty, or both. Adultery is a breach of contract--a tort. Bigamy is fraud. I don't see how Lawrence precludes laws against those activities. I think that you're reading in and offering a straw-man argument. There's just no substance to your claim that vigorous protection of individual rights by the Court will allow any truly criminal activity to go unpunished.
There is a difference between disgustingness and immorality. Immorality allows other people to suffer actual harm. Disgustingness is simply unappealing. So maybe we're just dancing around terms. If you accept morality as acting in a way that respects the legitimate interests of others, then legislating morality is fine with me; it's the same as legislating responsibility. But that is different than legislating preferences. Laws that hold people appropriately accountable for the consequences of their actions are fine. | |
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| Should prostitution be legal?
Posted: 9/29/2009 1:40:21 PM | Straw-man arguments are a rhetorical trick meant to mislead, and I don't knowingly make them. I never learned much of the playbook Mr. Obama and his friends use.
You don't seem to want to admit what Lawrence really did, which Justice Scalia astutely pointed out. He (and others) have also commented that the hidden agenda of the majority in that case was to pave the way for making same-sex marriage a constitutional right. The problem with what you claim is that--just to pick one example--a claim for fraud based on bigamy isn't going to be what courts call "cognizable."
They're not going to buy that legal theory--especially if the obvious reason for cooking it up is that bigamy's no longer a crime by itself. And I don't think most tort suits for damages caused by adultery would go far these days, either. When you sue, you have to present a legally cognizable claim, or the case is over before it's started.
Incestuous sex between consenting adults isn't a crime against a person, any more than sex between total strangers is. It's not like robbery, or criminal assault, or rape. It's *only* a crime because most people believe it's immoral. | |
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| Should prostitution be legal?
Posted: 9/29/2009 2:21:48 PM | | Well then, perhaps most people should mind their own business. Is there a _rational_ basis for prohibiting same-sex marriage? Or does it boil down to prejudice? | |
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| Should prostitution be legal?
Posted: 9/29/2009 6:00:33 PM | Pre-judgment or post-judgment... what's the difference? There WILL be a judgment at some point.  | |
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| Should prostitution be legal?
Posted: 9/30/2009 1:34:47 PM |
in a free society, judgment comes after the fact
That's true as far as individual defendants are concerned, when they're charged with crimes. But all criminal laws represent a majority judgment about certain acts. People make those acts crimes because they're *already* convinced they're wrong. In that sense, every criminal law represents a group's prejudgment about some behavior.
Most criminal laws are state laws, made under the states' inherent police powers. Those are the powers they never granted the United States--the ones reserved to them under the 10th Amendment. Any disadvantaged group is always free to campaign to bring the majority around to its view. That's the usual way to change laws--by persuasion.
Not that long ago, the Court wouldn't jump in to overrule a state law until it only lingered on in a couple holdout states. But recently, it doesn't hesitate even when a third or more of the states still support making something a crime. What about the 9th and 10th Amendments, the fundamental due process right to your vote? Minor details--disregard them.
The big problem with substantive due process is that it involves several judges imposing their personal views of what's fair on millions of people who disagree. And it's become more millions than ever. You can't get much more arbitrary than that. | |
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| Should prostitution be legal?
Posted: 9/30/2009 3:29:27 PM | People make those acts crimes because they're *already* convinced they're wrong. In that sense, every criminal law represents a group's prejudgment about some behavior.
Yep. This is the crux of our disagreement. It is entirely possible for a majority of people to be convinced that something is _wrong_ when it is actually _harmless._ It is also possible for the majority to err in the opposite direction.
When those errors in prejudgment unduly restrict the rights of an individual to due process or equal protection--as was the case with miscegenation laws (outlawed but harmless) and Jim Crow (harmful but legal).
You might well be OK when those injustices fall within your personal comfort zone or that of your preferred group, but I am not. I feel that it is my duty as a free, white, heterosexual man to make sure that the same freedoms and protections provided to me are provided to everyone else--whether I like the results of affording everyone that same protection or not. If the price I pay to live in a free society is the loss of my ability to impose on others, I can live with it.
What about the 9th and 10th Amendments, the fundamental due process right to your vote? Minor details--disregard them.
Correct. Well, they aren't minor details at all. Nevertheless, despite the importance of a vote by the legislature or the People, there is not a majority on Earth that is entitled to vote away any of _your_ rights--whether you choose to exercise them all or not. --even if the vote is 6 billion to 1 against you.
It is the Court's job to perform that check on your behalf. Why you would begrudge them discretion is beyond me. If the legislature has a clear Constitutional intent that does not unduly deprive you, then when the Court errs (in either of the ways mentioned above), it can always pass a new law that more clearly specifies its intent and the procedural limits that will effectively protect your rights.
I respectfully submit that if a legislature can't figure out how to do that, the Court was probably right. | |
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| Should prostitution be legal?
Posted: 9/30/2009 4:14:35 PM | Wow, are we still talking about prostitution here?
I guess we always are, no matter what we think we're talking about. ;) | |
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| Should prostitution be legal?
Posted: 10/1/2009 12:43:43 AM |
to vote away any of _your_ rights . . . It is the Court's job to perform that check on your behalf, Why you would begrudge them discretion is beyond me.
I think you may be misunderstanding what rights the Constitution guarantees. Every time a law is passed, the majority is imposing its will on everyone else in some way. It's the nature of laws to advantage some and disadvantage others. And many (if not most) laws reflect moral beliefs.
The income tax discriminates against single Americans and benefits married ones. Why doesn't it deny single people the equal protection of the laws to create an economic incentive for marriage, at their expense, just because a majority believes marriage is a social and moral good? But it doesn't.
Same with state laws. The 14th Am. acknowledges that majorities in states have the right to make laws that authorize the state (or its municipal governments) to deprive the people who violate them of their liberty, their property, or even their lives. It just prohibits them from doing the depriving unfairly. Most of the time, there's no constitutional ground for an appeal.
What due process has always meant is that everyone has the right to fair notice and fair hearing. A full record of the legislature's proceedings has to be published, and so do the laws they enact. All of us are assumed to be on notice of what those laws allow and what they don't, because we can find out.
Defendants get notified much more directly, either by being served with process, or by being arraigned and charged. And we have provisions for hearings, trials, appeals--the whole nine yards. But *substantive* due process is a doctrine the Supreme Court created on its own.
When the Court claims discretion--in ANY matter--that goes beyond its authority, it's abusing its power. In Marbury v. Madison, Chief Justice Marshall only claimed that the Court had authority to say whether a law enacted by Congress complied with the Constitution. It is a myth that Marbury stands for the proposition that the Court is the sole and final arbiter of what the Constitution means.
I don't care who or what's involved, it's a threat to the freedom of all of us to have an arrogant clique on the Court, charging around like a knight errant righting wrongs. Real, or imagined. *That's* what's outside my comfort zone. And it's insidious, because to most people it looks noble and heroic.
Just look some time at the Court's Guantanamo decisions, to see the disrespect it's shown the other two branches. It would find fault with a law, Congress would act to correct these objections, adding language that made very clear what it intended--and the Court would concoct some reason to overturn the law. And a *constitutional* right to habeas for unlawful alien combatants outside the U.S.? It's far from clear that the Constitution even gives any American that right! That's why there's a habeas *statute* in the Federal Code.
I remember how Time, Newsweek, etc. trumpeted at the time Rasul v. Bush was decided how the Court (you could almost see the cavalry riding in to restore order) had slapped President Bush's hand for overreaching. And I'm sure most Americans who heard what happened think that's how it was. Bull. People who actually read those cases carefully know it wasn't Mr. Bush, or Congress, but the *Court* itself that was very far out of line. In the whole history of the U.S., the Court had never intruded into foreign policy involving our national security nearly as far as it has, several times now, since 2002.
As propaganda, what's been put out about Guantanamo is right up there with the clip from Sen. Mc Carthy's hearings on the Army that supposedly represented the forces of decency finally giving a mean, vicious guttersnipe his comeuppance. I've never seen a program about that era that didn't include it. You've probably seen the footage--there's Joseph Welch, denouncing Mc Carthy in ringing, righteous tones: "Have you no decency, sir? Have you, at last, no decency?" And to this day, we all know the answer.
What they don't show is that earlier in the hearing, Welch had taken a very cheap shot at Roy Cohn, Mc Carthy's brilliant young assistant lawyer--as I recall, by implying he was gay. (Which he certainly was.) Mc Carthy's sin had been to defend Cohn, just before Welch's self-righteous outburst, by pointing to a newspaper article that had said Welch's own young co-counsel was a Communist. (Which he certainly was.)
All of this, of course, has to be edited out of the propaganda. And so does the fact the *second* young lawyer on Joe Mc Carthy's committee and his older brother--Bobby and Jack Kennedy--were both deep, lifelong admirers of him. A bit off point, but not completely. | |
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| Should prostitution be legal?
Posted: 10/1/2009 7:41:54 AM | I think you may be misunderstanding what rights the Constitution guarantees. Every time a law is passed, the majority is imposing its will on everyone else in some way. It's the nature of laws to advantage some and disadvantage others. And many (if not most) laws reflect moral beliefs.
There are places on this Earth where it is considered a grandmother's moral duty to cut off her granddaughter's clitoris with a sharpened rock and no anaesthetic. Your claim amounts to an assertion that morality can, in some cases, trump individual rights. Morality must be filtered by a due consideration of the rights involved, and when the two conflict, the individual's rights must prevail. The right to due process and the right to equal protection supercede all other moral considerations.
Most laws reflect moral considerations that have been tempered by due consideration of individual rights. Those that have not been so tempered are subject to challenge and will either have to be modified or tossed out once they are subjected to rational scrutiny.
That's what the development of a legal system rooted in the concept of individual rights is all about. We've only been at it for a couple of hundred years, so of course there are likely to be all sorts of nonsense laws based on a morality of superstition. Your desire to hold such laws above rational scrutiny puts you in the same camp as the Mullahs in Tehran--who hold that religious authority is a valid basis for making law. I honestly don't think you want to go there.
Think about it.
Personally, I'll take the bad results that come from an independent judiciary doing its job. I'll even take their mistakes. I'd much prefer that than living under the tyranny of biddies or crotchety old men. Wouldn't you? | |
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| Should prostitution be legal?
Posted: 10/1/2009 9:44:02 AM | Baloney. Not even in Michigan or New Jersey--or Minnesota, which supplied the Somali-Americans who recently returned to their native hellhole to help prepare it as a base for Al Qaeda. And who can doubt that it was probably one of their overwhelmingly patriotic co-religionists--some kindly Mrs. Mohammed down the block--who first suspected these miscreants and alerted the authorities?
We don't live under Sharia yet--no thanks to several members of the Supreme Court who have done so much to help Islamist savages make war on us. Their completely improper, unprecedented intrusion into defense policy has caused U.S. servicemen--probably quite a few of them--to be killed. It may lead to far worse yet. This foolish blundering, fed by moral arrogance, has set a fine example for the millions of well-meaning but badly deceived Americans who form the jihadists' fifth column.
What you dress up as an "independent judiciary" is too often a Court run amok. Judge Bork, for one, has written in detail about just how the Court has eroded the very kind of individual liberties you (and most of us) want to protect, in decision after decision. On second thought, why should we believe a Marine we all know wanted to trample women's rights and do all sorts of other mean, bad things? After all, Arlen Specter proved that with his superb analysis of Judge Bork's writings--and who'd ever compare Bork's grasp of the Constitution to Senator Specter's?
You seem to imagine that being only 200-plus years old, this country is somehow legally naive. You may want to read more about the law. Our system is built on English law, whose protections of individual liberty go back to the Magna Carta. (They never taught us when that was, but it was even before they had Big Ben.) England is the only nation on earth--and in all its history--whose law protects individual rights nearly as strongly as our own. Our Constitution is the gold standard for people in every nation that cares about individual freedoms, who know how far short of its guarantees their own fall.
You also ignore the facts states have their own constitutions, and that these usually don't differ all that much from the U.S. Constitution. Why would Congress ever have admitted them to the Union, if they allowed the kind of thing you mention? That's not to say every state's laws always protected every right guaranteed in the Bill of Rights. They don't even today.
But if all those Bible-thumping yahoos in the states didn't give a tinker's dam about individual rights before the Supreme Court forced them to, kicking and screaming--and not until late in the day--how did those rights ever survive? And how did those people and their ancestors ever come to support a U.S. Constitution that places so much emphasis on individual rights, in the first place? | |
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| Should prostitution be legal?
Posted: 10/1/2009 9:56:40 AM | The logical conclusion of your argument is that morals trump rights. That is the essence of your position.
My position is that rights trump morals.
The rest is just mechanics as far as I'm concerned. As long as you hold the position that morals trump rights, you allow for FGM and any other atrocious custom that some religious zealot can badger people into going along with in the name of "morality." Any majority that could go along with slavery for 400 years and institutionalized racism for another 100 is not worthy of our complete trust. So no, I am not willing to trust my rights, or yours, to the tender mercies of the majority--who will seemingly go along with _anything_ so long as it's legal.
The mechanism in our Constitution for preserving legal rights when laws unduly infringe upon them is judicial review. Of course judges should use restraint, but the remedy for judicial abuse is clarifying legislation, not undue restrictions on the ability of the court to do its job protecting _you._
You appear to favor such restrictions in order to safeguard the "sensibilities of the majority" a priori. Sorry, can't go there with you. And really, I don't see how you can go there either.
That's my position in a nutshell, and my understanding of yours. If I have misunderstood your position in any way, please clarify. Otherwise, I think we've done this one to death. | |
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| Should prostitution be legal?
Posted: 10/1/2009 11:29:21 AM |
If I have misunderstood your position in any way, please clarify.
I can see you don't understand it at all, although I've tried about as much as I want to explain. I've never even implied what you claim.
What you deride as the the sensibilities of the majority is usually called democracy and the rule of law.
Your comments about racism and slavery as reasons to doubt the trustworthiness of most Americans who lived before the end of the Civil War aren't very well chosen. Do you really think so little of this country?
You're grossly misrepresenting what I would tolerate, and it makes your earlier comments about setting up straw men ring pretty hollow. Why offer examples of horrors that are so obviously far beyond what any state could ever authorize? Or why imply I don't know the Constitution protects fundamental rights, when I've already discussed in detail the Court's standard for determining whether a right is "fundamental?"
There's a tone of moral superiority to what you say. If not for the heroic stand of Justices Ginsburg, Stevens, Breyer, and Kennedy and Souter/Sotomayor, I guess, all those primitives in flyover country would long since have put all the homos and Muslims in concentration camps, and who knows what--cannibalism, maybe--would have been made perfectly legal in all 50 states.
There's Manhattan, I guess, and Cambridge, Ann Arbor, Madison, Berkeley, Santa Monica, and maybe a couple other oases, and the rest is one big "shotgun-and-pickup" demographic. No? Well, I just wanted to show I know how to use exaggerated, alarmist language, too.
It's not very fair-minded to suggest that I don't want to see the Court protect individual rights. I could just as easily claim that people who favor an activist Court don't care about how its excesses harm those rights. But I am glad you've tried to enlighten me about the law, and how it allows such terrible things. I usually have to rely on Mr. Carter to tell me all the universal rights this lamentable country disregards. | |
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| Should prostitution be legal?
Posted: 10/1/2009 5:12:38 PM |
I can see you don't understand it at all, although I've tried about as much as I want to explain. I've never even implied what you claim.
It's not very fair-minded to suggest that I don't want to see the Court protect individual rights.
But that is exactly what you have _said_ you want when the majority passes a law that violates a right! You have been arguing for that repeatedly. If all that you're arguing is that the court should exercise more restraint, then I can agree with that. But you have appeared to be arguing something that goes beyond simply that.
I could just as easily claim that people who favor an activist Court don't care about how its excesses harm those rights.
That is exactly what you claim. Your additional call for restricting the power of the courts, and your assertion that morality is the basis of law, together imply that you believe morals trump rights. Perhaps you haven't considered that implication before, but if not, I think you should.
But I am glad you've tried to enlighten me about the law.
Cute. Our common law tradition allows me to weigh in with exactly as much authority as you on the fundamental philosophy of law, JD or not. My other JD friends tell me that their training included maybe half a day on the philosophical underpinnings of our legal system. So hey, no worries, I'll grant you that half-day advantage.
Since the legislature has the power to rewrite laws that achieve moral ends in ways that conform to the Constitution, there is a remedy at hand if the Court throws out a morally based law that happens to violate someone's rights. The legislature can also impeach justices who are getting out of hand. So there is simply no need for additional restrictions on the Court. If you're not making a case for such restrictions, we're done with this! | |
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