From: Valence (valence10@hotmail.com)
Date: Wed Jul 09 2003 - 07:01:04 BST
Hey Johnny,
J
> Hi Rick, Yeah, I never responded to this one, is that why you reposted
it?
>
> OK, I welcome the second chance...
R
Actually I didn't repost it (as far as I know). I honestly have no clue why
this post came through twice. Just for future reference though, I would
never repost a message just for the purpose of pressing you (or anyone) into
a response, that's not my style. I understand that there are a multitude of
reasons that someone might not respond to a given post (too busy, nothing to
say, said it all in another post, think i'm an ignorant ass, etc). I don't
take it personally :-) I hope nobody else does either.
J
> Yes, pretty much. I was under the impression that the "due process"
> referred to the process of enforcing a law.
R
Well it does. It applies to making law, enforcing law, interpreting law and
administrating law.
J
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.
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. 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).
J
> 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?
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".
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 ;-)
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.
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.
J
> I think "tyranny of the majority" is an oxymoron.
R
It's not if you're in the minority.
J
A tyrant is a single
> ruler.
R
Tyranny is the PRODUCT of a government. Any government can be tyrannical.
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?
take care
rick
The majority, oppressing an individual, is guilty of a crime, abuses its
strength, and by acting on the law of the strongest breaks up the
foundations of society. - Thomas Jefferson
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