From: Valence (valence10@hotmail.com)
Date: Thu Jul 10 2003 - 23:57:43 BST
Hey Johnny,
J
> 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.
R
Well, as I said way back at the beginning of all this, if you want to see it
that way, you're entitled to and you're in plenty of good company. I
myself, started law school as one of those who saw the reasoning behind
almost all judicial opinions as "ends oriented" rationalizing used as a
front for the judge or justices to do whatever they felt was right. That's
a perfectly coherent point of view and many brilliant professionals and
brilliant laymen alike feel that way (don't even get me started on Bush v.
Gore, it was such a horrible and arbitrary opinion that my heartrate
increases just thinking about it). But in my mind, the substantive due
process scheme makes alot of sense and seems to flow quite naturally from
the words of the Constitution itself. We have the right to due process of
law before being deprived of life, liberty or property. "Liberty" has to
mean something.
> >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
> I'm afraid I do confuse these, because everyone calls the liberty
interests
> "privacy rights".
R
Well, don't let them fool you. Privacy is but one of our liberty interests
(others exist in the areas of voting, travel, religion and some other
areas).
J
> 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?
R
I'm afraid I don't see your point. Your rights under the 4th amendment are
against "unreasonable" searches of your person, house, papers, or effects
and against the issuance of a warrant to search you on less than probable
cause. It doesn't matter what the crime is.
> >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
> 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.
R
Okay, let's say you are right and the purpose of the statute is to prevent
prostitution. But your archenemy Johnny Immoral thinks taverns should be
able to have private rooms (for whatever reason). He challenges the statute
as violative of his right to privacy and rides the case all the way up to
the Supreme Court. Here's what they'll almost certainly tell him: You have
no reasonable expectation of privacy in a public tavern and so all the state
needs to support this law it to show that it is rationally related to a
legitimate interest. Preventing prostitution is a legitimate state interest
because of the overwhelming evidence of its association with violent crime
and the spread of disease. It is not unreasonable to believe that if the
public taverns were allowed to build private rooms that they might become
frequented by prostitutes and their clients. Therefore, the law is
rationally related to a legitimate state interest and constitutional. Have
a nice day.
J
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.
R
Well, good luck with your efforts. But at least you see how the Giant can
be tyrannical even through a majority.
> >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?
J
> No, that law applies to all equally.
R
Maybe I should've updated the language in the joke a bit. In this case,
"the poor" are meant to be the homeless who have no place better to sleep at
night than on the park benches, "the rich" are those who go home to their
warm beds every night and never even have to consider sleeping in a park.
While the law is neutral on its face, it can hardly be said that it "applies
to all equally" because the two groups involved aren't similarly situated to
begin with. It means that equal protection doesn't prevent the political
majority from being tyrannical about anything the political majority itself
doesn't care about. Imagine a law that says neither jews nor christians can
celebrate Hannukah; or, no person shall be allowed to speak spanish; or,
neither men nor women shall be entitled to maternity leave; or, neither
supporters nor critics of the government shall be allowed to burn the flag;
etc. There was a time when Jim Crow laws and segregation laws were thought
not to violate equal protection because they applied to every one ("separate
but
equal"). The point is, without a substantive component, equal protection
(like due process) is a hollow guarantee. This is why the court uses pretty
much the same tests it uses in the due process cases for equal protection
cases as well. A law accused of an equal protection basis must be shown to
a rational relationship to legitimate state interest. If it divides on the
basis of a "suspect class" or a fundamental right or liberty interest, it
faces the strict scrutiny test (there is an intermediate level test, but
mostly it's only used for cases involving gender discrimination).
J
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.
R
Right. But why do you reserve the privilege of equal protection to racial
minorities alone?
J
Murder laws do not apply only to murderers.
R
Huh? What do you mean by this? Murder laws are laws of general
applicability, they apply to everyone. A "Murderer" is what we call someone
who has been convicted of violating that law.
take care
rick
Truth always rests with the minority, and the minority is always stronger
than the majority, because the minority is generally formed by those who
really have an opinion, while the strength of a majority is illusory, formed
by the gangs who have no opinion-and who, therefore, in the next instant
(when it is evident that the minority is the stronger) assume its opinion
... while Truth again reverts to a new minority. - Soren Kierkegaard
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