abe smith

In the matter of the TEXAS sodomy law case, heard before the USSC on 26? march.... Justice Scalia offered an observation about "flagpole sitting" which observation (I infer) expressed his opinion/ attitude. Would it be just/ truthful to assume that for J. Scalia *whatever is not expressly PERMITTED (specifically in the Federal Constitution) is FORBIDDEN?* This interpretation of his remarks seems to be implicit. And, wow baby, is this what human life here in the USofA is coming to.?

(Also, by the bye, doesn't J.Scalia's choice of metaphor - (in discussing this, sodomy, case) = "flagpole sitting" have an interesting "freudian" overtone? Or am I forbidden to think such things?)

Since WHEN has this implicit position = that whatever is not expressly PERMITTED is FORBIDDEN?, been part of United States law? If you respond that that isn't what J. Scalia
MEANS, how do you know that it isn't?

And, by the bye, regarding the possible outcome of this particular case, can we guess whether J. O"CONNOR is, by now, sufficiently fed-up w/ Scalia et al's position, that she may shift her earlier stance and come down on the "liberals"'s side in this matter? Presumably it will be another 5-4 decision..

MortalWombat

The quote from him in the last sentence in this article almost seems to imply it.

Jesus Tap-Dancin' Christ

That quote does not imply that at all--it implies that we indeed do have rights that are not expressly laid out in the constitution--in fact, the majority of them are not in it.

OF course, this IS Scalia we are talking about...

MortalWombat

That's why I said "almost." Look at the second to last sentence in that article, though.

I think he's approaching it, but not quite at the point of "if it's not spelled out, it's forbidden."

Jesus Tap-Dancin' Christ

Aahh, didn't finish the article. That certainly makes it the claim far more plausible. Man, I really need go to bed earlier.

Stephen Maturin

That's pretty close, Abe. In the context of Lawrence v. Texas, it might be slightly more accurate to say that Scalia believes the state can criminalize any activity it pleases so long as the Constitution doesn't explicity protect that activity. Even Scalia doesn't believe that "not protected by the Constitution" equates to "automatically prohibited"; you still need a state law basis for the prohibition (a criminal statute, in this case).

BTW, you can find a couple of detailed and entertaining write-ups on yesterday's oral argument here and here. It looks like the lawyer who argued for the State of Texas screwed the pooch in a big way.

Bill Snedden

If that's what Scalia thinks, then he must have a reading deficiency:

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

I think it's far more likely, given his earlier statement on restricting rights during wartime, that he his position is likely to be something like one of the following:

A) no such rights exist (e.g., there is no "right" to privacy and the government thus has the ability to regulate how you conduct your personal life)

B) an unenumerated right to privacy exists, but in certain cases, the government has an overriding responsibility to restrict it.

As I see it however, position A is completely untenable from the standpoint of Constitutional law. One would have to demonstrate that the Founders had some degree of animosity toward the concept of individual privacy. Given some of their writings (including the first, fourth, and fifth amendments!), I can't see this being possible.

Position B is also untenable in the given circumstance. I don't see any possible way for the government to make a case that regulation of personal sexual practice is a necessary government activity. The very concept seems ludicrous.

Of course, that doesn't prevent the idiots from trying...

Regards,

Bill Snedden

BibleBelted

How could he not? I'm embarrassed that a case like this actually got before the Supreme Court ... and I'm mortified that it looks like there is a possibility that this gross violation of basic human rights may actually be upheld!

I just love how the fundies are always wailing about gays wanting "special rights" - the new euphemisms of right-wing bigotry.

Jesus Tap-Dancin' Christ

The lawyer for Texas said it might not have been consentual? WHAT...THE...FUCK? They were fighting this TOGETHER? Is he goddamned blind?

Anyhow, I hope the Supreme Court rules in favor of the plaintiffs (not Texas to be absolutely clear).

Stephen Maturin

I consider the fact that the Court agreed to hear this case a good thing. Lawrence presents an opportunity for the Court to overrule Bowers v. Hardwick, 478 U.S. 186 (1986), one of the Burger Court's more odious abominations. Given the way the arguments are arrayed in this new case, the Court could shoot down the Texas law while leaving Bowers intact. But hey, even a partial victory would be welcome!