From: Valence (valence10@hotmail.com)
Date: Mon Jul 07 2003 - 16:44:22 BST
Hey Johnny,
J
> I was also hoping you could finish explaining to me the "due process"
thing.
> It was a real question, asking if a perpetrator's due process rights
give
> him the same right to commit a crime in his bedroom. I was asking what
the
> actual crime had to do with the unconstitutionality of enforcing it on due
> process grounds.
R
I'm not sure exactly what you're asking, but see if this helps any...
The 14th amendment (and the 5th for the feds) protects you against
deprivations of life, liberty or property by the government without due
process of law. Now, the first category (life) is pretty self-explanatory,
the state can't take your life without due process (ie. a trial before a
jury of your peers who get to decide your punishment). The second category
(liberty) and the third category (property) get a little more complicated,
but in most cases, all the state need do meet this burden is show that (1)
the law was passed in accordance with the rules of the state legislature,
and that (2) that the law has at least a rational relationship to some
legitimate state interest (ie. public health, safety or welfare). This is a
very low standard and most state laws pass just fine.
But now you have to recognize a distinction between "due process" and
"substantive due process". Whereas the former is addressed to the question
of what process is due before a state can deprive you of life, liberty or
property, the latter is addressed to defining certain areas of the "liberty"
component of the clause in which states cannot legislate at all (or at least
make criminal laws). To date, these areas are almost exclusively concerned
with the most intimate and personal kinds of issues (ie. contraception,
abortion, consensual sex habits, etc). This is why substantive due process
is also popularly known as "the right to privacy". The idea is that there
are just certain issues in a person's life that they must be entitled to
decide for themselves (ie. the liberty the amendment protects) and that no
amount of process will legitimize the state's attempts to control those
issues. If an interest is perceived to be a substantive due process right,
the level of scrutiny put upon the law goes up. Now instead of having to
show a mere 'rational relationship' to a 'legitimate interest', the state
must show that the law is 'narrowly tailored' to meet a 'compelling state
interest'. Which is a virtually impossible standard to meet (although it
should be noted that the opinion in Lawrence struck down the Texas law on
the rock-bottom 'rational-basis' standard of review).
Is this what you were asking about?
> >R
...Equating
> >"the people" with individual citizens is the only possible logical
> >interpretation of the language. Unless you care to offer another
> >alternative....
J
> I think the state and the people decide for themselves how those rights
are
> distributed. Some people may live in a state that gives very few rights
to
> the people, other people live in states that have very few powers and
> rights. But it is up the the people in those states to work that out
> amongst themselves.
R
The problem is that if you do it that way, you've reduced the 10th amendment
to saying that any powers not enumerated to the federal government are
granted to the states, and if they don't want them, the people. Which is of
course just to say that those powers go to the states. In other words, if
the people themselves only get what rights the states let them have, then
they have no rights at all really. You're back to tyranny of the majority.
The only reason to grant some of the rights directly to the people in the
Constitution itself is to create a federal basis for their enforcement
against the states that may seek to usurp them (the very purpose of the 10th
and 14th amendments).
> >R
> >No you can't because I didn't say he meant "the Supreme Court" I said he
> >meant ALL the mechanisms of politics (which is what he wrote) you were
the
> >one trying whittle it down to merely "the legislature".
J
> Politics is even larger than the branches of government too, it includes
> newspaper editorials, dirty tricks, corruption, etc...
R
Totally agreed.
take care
rick
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