From: johnny moral (johnnymoral@hotmail.com)
Date: Tue Jul 08 2003 - 18:57:28 BST
Hi Rick, Yeah, I never responded to this one, is that why you reposted it?
OK, I welcome the second chance...
>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?
Yes, pretty much. I was under the impression that the "due process"
referred to the process of enforcing a law. If enforcing it violates
privacy rights, then the law is unenforcable and therefore not valid
constitutionally. 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.
But you've explained that the "process" is also in making the law in the
first place, and is different for each law, depending on how much the
justices feel the law is justified.
But that seems to me to have nothing to do with privacy, but only with if
the justices feel the law is justifiable. Couldn't they say that a law
banning public hand-holding violated substantive due process rights, because
"no amount of process" can justify curtailing that liberty? What does
privacy have to do with it?
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. There's a law about open and gross lewdness, but
legal sexual intercourse is not lewd in and of itself, even if done in
public. If it was done in order to be lewd, in a lascivious manner designed
to raise the prurient interest of the public, then that would qualify as a
crime under the law. And I contend that a marriage license is exactly a
public display of sexual intercourse, even if we don't see the intercourse
for reasons of traditional decorum and modesty. We certainly see the newly
married couple publically enter their home together, and possibly even hear
them making love, and we all know that's what they are doing - we approve of
it.
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
>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).
How much longer do give states? What right does one state have to have
different laws than another?
I think "tyranny of the majority" is an oxymoron. A tyrant is a single
ruler. I support the 14th amendment's equal protection clause, and the
ending of legal racial segregation by the federal government. But I don't
think that it invalidates the process of a state having democratic laws that
regulate conduct for everyone. We all agree that this wasn't an equal
protection case, so I don't see how the majority can be tyrranical as long
as they make laws that apply to all equally.
take care,
Johnny
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