From: Valence (valence10@hotmail.com)
Date: Wed Jul 02 2003 - 00:12:52 BST
Hey Johnny,
J
> Hi Rick,
> I guess I have more to say.
>
> >In public, where the right is at its minimum,
> >privacy is a much more limited concept (generally extending to your
rights
> >against search and seizure at the hands of the police).
>
> So, Rick, does this mean it's LEGAL to walk around with a bag of weed
tucked
> in your pocket? And legal to take it out and smoke it or sell it when you
> get inside a friend's house?
R
No. Possession of marijuana is a federal crime and a crime in all 50 states
(although Oregon, I believe, has decriminalized very small quantities
possessed for personal use, but I'm not terribly familiar with how that law
works). Anyway, to greatly oversimplify, the 4th amendment guarantees
against unreasonable search and seizure are a limitation on the government's
power to enforce the criminal laws. If you possess the weed in your own
home it's still illegal, but the government would (usually) need a warrant
to come in and look for it (which they can only get if they have probable
cause).
J
I don't see how "zones of privacy" become
> "zones of legality".
R
Under the due process clause of the 14th amendment every person has a right
against deprivations of life, liberty or property without due process of
law. The 'zones of privacy' are the starting point for the court's analysis
when determining what process is due before the government can deprive you
of your fundamental right to liberty. The right to privacy is seen a part
of this liberty interest so therefore in your home, the process due is much
more rigorous than that due when you're in public.
J
> I've never been a stickler for legal consistency, I feel that the
> legistature can make whatever laws it wants, regardless of the "logic" or
> consistency. This court is saying Texas's morals aren't the country's
> morals, and therefore we will impose the country's morals (or actually,
the
> court's elitist cosmopolitian dinner-party media-ready morals).
R
Well okay then...the legislature has made laws which empower the courts to
protect the interests of individuals and minorities against the tyranny of
the majorities, which is exactly what this court did. I agree with Oliver
Wendell Holmes (famed Justice, Pragmatist, and a personal hero of mine) who
said, "The life of the law has not been logic, but experience."
What this new pronouncement implies for public decency
> >and obscenity laws is anyone's guess (Justice O'Connor felt that most
such
> >laws will be safe, though she didn't really explain why, Justice Scalia
> >felt
> >that most such laws are now doomed, the majority didn't really say much
> >about it at all) and who will be right is up to 'history' and future
> >actions
> >by courts, legislatures and voters all over the country.
J
> You mean the courts. Apparently voters and legislatures don't have much
to
> do with it.
R
No, I meant what I wrote. Legislatures write the laws judges must interpret
and determine the scope of the court's authority. Voters choose the
legislatures and executives and in some states the judges (in others judges
are appointed by the voter's elected representatives). They choose the
president who appoints the federal judiciary. They choose the senators who
advise the president and must consent to his choice. Individuals bring the
cases that judges decide. They sit on the juries that decide the cases.
Judges are both voters and individuals. The law doesn't exist in a vacuum.
The court's are just another part of the greater eternal sociological
conversation in which we are all constantly engaged.
J
> I think they are just relying on the fact that most people probably won't
> want people looking at them. But there will be a few "nudists" and public
> sex lovers who will be emboldened by this decision (and Scalia's
invitation)
> who will question the right of a state to discriminate against them, while
> allowing straights to walk around anywhere they want. There are lots of
> people who only enjoy sex in public, for them "regular" sex is not at all
> interesting. This is a class of people.
R
To oversimplify once again, whether or not a class of people (for legal
purposes) can be defined solely on the basis on a shared behavior has yet to
be determined at the ultimate level. Moreover, even if the 'nudists' could
unite as a class of people to make an Equal Protection challenge to public
decency laws that prevent public nudity, the state would only need to show
that the laws it made is rationally related to a legitimate state end (in
Supreme Ct history, I believe only about 2 or 3 laws have ever been struck
down at this level of scrutiny... the recent Lawrence opinion representing
one of them). To get a higher level of scrutiny, the class would have to
show either how it has been politically disadvantaged somehow by the
majority and why it can't take advantage of the regular legislative
processes OR that there exists under the Constitution a fundamental liberty
interest in being nude in public which the framers intended to be protected
by judicial power.
J
> This is an example of how I think people ought to be make it judgements
> "ahistorically" and absolutely. No one should say this is "true for now",
> no one should say this is "currently just", a court should assert truths
> that stand for all time, not temporary ones. They aren't Alan Greenspan,
> adjusting the pruience rate of the nation.
R
That's pretty much what they do J. The Supreme Court interprets our laws in
accordance with the "ahistorical" principles found in the Constitution.
take care
rick
There is no statement so absurd that no philosopher will make it. - Cicero
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