From: johnny moral (johnnymoral@hotmail.com)
Date: Thu Jul 10 2003 - 07:47:26 BST
>If enforcing it violates
> > privacy rights, then the law is unenforcable and therefore not valid
> > constitutionally.
>
>R
>Or more precisely, if enforcing it will violate a privacy right the
>government's purposes and methods will face a much more rigorous standard
>of
>scrutiny.
Well, sure, there are some laws that the justices feel are rational, so
those can violate privacy rights. It just seems duplicious for them to come
up with this whole substantive due process thing when they are really just
using it to say that we like this law and not that law. Seems to me it
would work for every case that comes before the court.
>J
> I was concerned that it wouldn't matter what the law was
> > that was being enforced, gambling, drug-taking, extortion or incest, and
> > even non-consensual crimes like murder. If it was broken in private,
>then
> > no one could arrest the perpetrator(s) for a crime.
>
>R
>That would be a little impractical. I'd wager that both the state
>legislatures and the Supreme Court would very quickly agree that the
>government has overwhelmingly powerful interests in enforcing all of the
>laws you named.
Well that would be very generous of the court to agree, we're very
fortunate.
>But be careful not to confuse the 14th amendments liberty
>interests (including privacy among them) with the search and seizure
>protections of the 4th amendment (which operate directly on the actions of
>law enforcement agents).
I'm afraid I do confuse these, because everyone calls the liberty interests
"privacy rights".
Did you see my point that by saying that some things are legal in private
and other things still aren't we erode fourth amendment rights? Doing that
gives them away, says "come in and look at us, we aren't doing anything
wrong." It is like the person with nothing to hide not seeing any problem
with government surveilence of the citizenry.
>R
>Privacy doesn't necessarily have anything to do with it. The bottom line is
>"liberty". There are substantive due process rights that have nothing to
>do
>with privacy at all (ie. the mysterious right to have uniform vote-counting
>standards in all counties of a state during a federal election--- see Bush
>v. Gore). It's only the general public that calls substantive due process
>"the right to privacy".
Ah.
>J
> > I still don't understand why things that happen in private could be
>legal
> > when it is illegal to do such things in public. I can't find anything
>in
> > the Massachusetts laws that say that a married couple cannot have
> > intercourse in public.
>
>R
>I'm not doing another statutory search for you, but I guarantee you it's
>illegal to have sexual intercourse in a public place in Massachusetts
>(except maybe live-sex shows, if there still are such things). If you
>doubt
>me, well... You've mentioned you are married. So I'd recommend taking your
>bride down to the old Harvard Yard and dropping down with her on the lawn
>and going for it right there. While the policemen are booking you, you can
>argue with THEM about the statutes ;-)
I'm sure we'd be arrested too, because our perverted culture has made
intercourse into an intellectually provocotive act, and it would surely be
seen as lascivious pubic behavior. But it is a natural thing. Animals
don't go off to their bedrooms, the whole heard can watch (but they aren't
interested). And people didn't used to have their own rooms, there'd be
lots of people in a tent or a cave, and the couples would copulate right
next to each other, you'd know that Og and Betty were copulating. That was
OK, as Og and Betty were married, they were expected to do that. But Og was
not expected to copulate with Wilma. Gettiing our own rooms was not
supposed to change the legality of our behavior.
>J
> > There's even a law AGAINST privacy: a restaraunt or tavern having
>private
> > booths that are enclosed so as to obstruct the view of other patrons is
> > illegal.
>
>R
>Restaurants and taverns are *public* places. You have no reasonable
>expectation of privacy in a public tavern.
The law says that the tavern can't have rooms where people can be in
private. I don't think it is because they are in a public place, it's to
keep people form prostitution, I think.
>J
> > How much longer do give states? What right does one state have to have
> > different laws than another?
>
>R
>State laws are extremely diverse in my opinion (although under the
>Constitution they all must give full faith and credit to the laws of all
>sister states). That diversity is the reason that a lawyer needs to pass a
>specific bar and ethical exam for any state in which he seeks to practice.
>Though you and Platt have expressed fear over the 9 justices constantly
>usurping a state's right to govern itself, the reality is actually quite
>different. For the past 20 years or so our Court has been mainly ruled by
>a
>5 member block known in legal circles as 'the federalism five' (Rehnquist,
>Scalia, O'Connor, Kennedy, and Thomas). These five are virtually obsessive
>about keeping the federal government out of the way of the states. In fact,
>these five justices voting as a block have STRUCK DOWN more FEDERAL
>legislation than ALL previous Supreme Court's combined! I'd say, the
>states
>are gonna be fine.
That's good.
>J
> > I think "tyranny of the majority" is an oxymoron.
>
>R
>It's not if you're in the minority.
There's lots of things I'm in the minority about. I feel banking should be
socialized, usury outlawed, medical research curtailed, the gas tax raised,
all sorts of things. I do see the Giant as a tyrannical force that works by
drawing a majority of voters to its cause. But I counter that by trying to
bring enough people back to respecting morality.
>J
>...I don't see how the majority can be tyrranical as long
> > as they make laws that apply to all equally.
>
>R
>Old legal joke: "Equal Protection is that great doctrine which states that
>the both the rich, and the poor, are equally forbidden from sleeping on the
>park benches at night." Do you see it now?
No, that law applies to all equally. I agree that if there was a law that
caused de facto segregation by race,that seemed to be for that purpose,
that would violate 14, even if it "applied to all" in terms of its actual
wording. Murder laws do not apply only to murderers.
Johnny
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