Clerance Thomas thinks rights to privacy is not in the constitution?

[LunarRay]

The USSC has decided it has a sort of plenipotentiary authority granted them by them through interpretation of the Constitution... makes for fewer amendments and a lazy congress..

 

[AndrewR]

Bottom line to the discussion: There is no per se right to privacy spelled out in the Constitution. That right was crafted by the Supreme Court.

It's amusing to see people who have probably never even read a judicial opinion critisizing the legal analysis of a sitting Supreme Court judge. Who has more credibility?

 

[tcsenter]

HELLO ! The people can't pass a law that violates the Constitiution. A law as you describe would therefore not be "sanctioned", it would not be a valid law.

Alright then, how does an anti-sodomy law violate the 4th Amendment's prohibition against "unreasonable searches and seizures", provided that the statute does not direct the government (law enforcement) to go peeking into people's windows or hiding in their bushes or entering their homes trying to catch people violating anti-sodomy laws?

And it's common sense, apart from the legal descriptions, that freedom from unreasonable searches is just another way of saying a right to privacy..

I am inclined to accept this, so long as this vernacular "right to privacy", as it is used in lieu of 'freedom from unreasonable searches and seizures', and as a phrase to describe the general principle of the 4th Amendment, does not take on a whole life and meaning of its own which is at odds with or completely unrelated to:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

 

[LunarRay]

Originally posted by: AndrewR
Bottom line to the discussion: There is no per se right to privacy spelled out in the Constitution. That right was crafted by the Supreme Court.

It's amusing to see people who have probably never even read a judicial opinion critisizing the legal analysis of a sitting Supreme Court judge. Who has more credibility?

The seven who voted to affirm!

 

[BaliBabyDoc]

It's amusing to see people who have probably never even read a judicial opinion critisizing the legal analysis of a sitting Supreme Court judge. Who has more credibility?

Yep . . . all you need is one pubic hair labeled Coke drinker to have a credible argument.

 

[tcsenter]

The government has no moral authority to condemn the actions of consenting adults without showing demonstarable harm to the participants or to other persons in legal proximity. Homosexual acts (among many other things) by consenting adults in private cannot be shown to be harmful and therefore should not be under the pervue of the government.

Of course the government can show that homosexual acts are harmful and contrary to the public interest, just as the government can show that polygamy is harmful, contrary to the public interest, and prohibit it. Just as the government can "deem" almost arbitrarily one certain age to be the age of consent and criminalize sexual relations with anyone under that age of consent, even if the 'underage' person in fact consented to those sexual realations.

Anal sex isn't some kind of fundamental right. The fact that every state in the union prohibited sodomy at one time proves it has always been acknowledged as a harm and certainly no matter of right. This view predates the constitution. Not even the practice of slavery was permitted in every state in the union. Even among states which permitted slavery, there was strong dissent or debate on its morality, but the states were unanimous and unequivocal on sodomy.

The Supreme Court itself found as much and upheld anti-sodomy laws only 17 years ago. The only 'change' since then has perhaps been a decrease in the public's revulsion to sodomy. Being 'popular' isn't requisite for "constitutionality". Many unpopular laws are completely constitutional, many popular laws have been struck down as unconstitutional.

Anal sex is the highest risk sexual practice known for the transmission of disease and can certainly cause harm to both parties. The harm anal sex poses to both individuals and society certainly outweighs any personal 'pleasure' interest by a minority of individuals. Typically, anal sex practitioners report far less pleasure from or preference for 'receiving' than 'giving', making anal sex less of a 'mutual' pleasure than a unilateral kind of thing.

We can debate until we're blue in the face whether or not as a matter of public policy the government 'should' criminalize sodomy, the wisdom or merit of such a policy, but there can be no serious and credible assertion that sodomy is some kind of fundamental right which the government is forbidden by the constitution to prohibit even if the people should through their elected officials find a public interest in doing so.

In this instance, the Supreme Court overstepped its authority by casting aside the exclusive province of the legislature to deal in the realm of public policy wisdom and not only inserted its own judgement in place of the legislature's on the merits of anti-sodomy laws, but did so relying upon a highly flawed if not bizarre nexus to the 4th Amendment. This issue is ripe for revisiting and overturning, in another decade or two.

The Supreme Court reversed its own ruling from 17 years ago, it can certainly do it again.

 

[jaeger66]

Originally posted by: tnitsuj
Clarence Thomas is an ultra strict constructionist. If it isn't actually literally spelled out in the actual words of the Constitution he doesn't care for it. He is also IMHO one of the most worthless Supreme Court justices ever. Ever read his book? It is basically a big long whiney rant.

He doesn't have two brain cells in his head. I'm pretty sure he just lets Scalia cast his vote for him.

 

[jackschmittusa]

tcsenter

If the Texas government had demonstrated that the practices were harmful (which included fellatio), why did it only apply to homosexual sex? It was perfectly legal for heterosexual couples.

 

[Nitemare]

As much as I agree with the ruling, I do see a point being made. The Supreme Court is making laws that are borderline constitutional and setting them in place for the entire nation. I would like decisions like this to be based statewide not at the federal level. although I agree with the ruling, it is setting a precident where the US Supreme Court is dictating law and morality and I really don't think anyone of us wants to go there.

 

[Alistar7]

Originally posted by: jackschmittusa
tcsenter

If the Texas government had demonstrated that the practices were harmful (which included fellatio), why did it only apply to homosexual sex? It was perfectly legal for heterosexual couples.

good question, what are you trying to say though??? there is hypocrisy and ignorance in American politics?????????? What a loon.

Every time I hear the name Clarence "All booty is public" Thomas I think about that song by Clarence Carter "Stroking"......

 

[Tom]

Originally posted by: AndrewR
"Bottom line to the discussion: There is no per se right to privacy spelled out in the Constitution. That right was crafted by the Supreme Court."
____________________________________

Crafted ? I would use the word deduced, since if there was no right to privacy, there would be no need to protect it by limiting searches.

There is also nothing in the Constitution that explicitly says the Supreme Court has the authority to decide if a law conflicts with the Constitution. Where does Clarence Thomas find the authority for himself to make such a judgement ?

 

[Tom]

"I am inclined to accept this, so long as this vernacular "right to privacy", as it is used in lieu of 'freedom from unreasonable searches and seizures', and as a phrase to describe the general principle of the 4th Amendment, does not take on a whole life and meaning of its own which is at odds with or completely unrelated to.."

I would say that's a reasonable position to take. It isn't the one I would take, I agree with the notion that the right to privacy is a fundamental right, subject to strict scrutiny, and I believe that is the prevailing view on the Court.

Starting from your position the Sodomy law may not have been thrown out.

 

[rahvin]

Originally posted by: Vadatajs
There is no explicitly stated right to privacy in the constitution. Read it sometime. The closest thing is the 4th ammendment, and section 1 of the 14th, which would require a reference to the vague language of the 4th to be interprited.


That said, there should be.

The constitution does not define "rights" of citizens. It defines what the rights of government are and leaves the rest to the citizens. The problem with the bill of rights is that the defined some "rights" and thereby gives the interpretation that the constitution defines the citizens rights and all others are reserved for government. Exactly what the framers were afraid would happen and is very common thinking among the citizenry these days.

 

[Gonad the Barbarian]

Originally posted by: rahvin

Originally posted by: Vadatajs
There is no explicitly stated right to privacy in the constitution. Read it sometime. The closest thing is the 4th ammendment, and section 1 of the 14th, which would require a reference to the vague language of the 4th to be interprited.


That said, there should be.

The constitution does not define "rights" of citizens. It defines what the rights of government are and leaves the rest to the citizens. The problem with the bill of rights is that the defined some "rights" and thereby gives the interpretation that the constitution defines the citizens rights and all others are reserved for government. Exactly what the framers were afraid would happen and is very common thinking among the citizenry these days.

Excellent point.

 

[yellowperil]

The right of privacy as a fundamental right (which is subject to strict scrutiny) only applies in a narrow range of circumstances. I think it comes primarily from the substantive due process clause in the 14th Amendment, particularly where it says "no State shall deprive any person of...liberty". It generally applies in only 3 categories: marriage, child-bearing, and child-rearing. The basic idea is that there are areas in individual life that are just too personal for the government to regulate. While homosexual sodomy has not traditionally fallen under those categories, it seems the State has no real public interest in preventing it other than 'protecting public morals' (which is arguably weak). Anti-sodomy laws selectively enforced against homosexuals is just inconsistent with the spirit of privacy as a fundamental right.

 

[jahawkin]

Then there's this little gem from the Clarence Thomas confimation hearings:
linky

Now, Judge, in your view, does the Liberty Clause of the Fourteenth Amendment protect the right of women to decide for themselves in certain instances whether or not to terminate pregnancy?

JUDGE THOMAS: Senator, first of all, let me look at that in the context other than with natural law principles.

SENATOR BIDEN: Let's forget about natural law for a minute.

JUDGE THOMAS: My view is that there is a right to privacy in the Fourteenth Amendment.

 

[Zebo]

TC, I think it's silly the court used the right to privacy to overturn the Texas law. Sodomy, or any law a state passes, unless it is expressly forbidden by the constitution, it should stand, and stay in the jurisdiction of the states or localities where the law was passed. Or else where do we stop? Any number of issues which are currently unpopular could be overturned under the guise of privacy. Prostitution, drugs ect ect etc. As much as I feel homos have the right to be this, since IMO consentual crimes should not be crimes at all, I think the SC made a mistake and it was a political decision.. Roe v wade too. We shoudl change laws by poplular vote, not some obsure interprtation of the const. by a sympathtic court. The court has been engaged in a popularity contest recently.

But it does'nt change the fact the fouth still gives us privacy by limiting the what, when and how the authorities can see anything concering you.

 

[Zebo]

Originally posted by: jahawkin
Then there's this little gem from the Clarence Thomas confimation hearings:
linky

Now, Judge, in your view, does the Liberty Clause of the Fourteenth Amendment protect the right of women to decide for themselves in certain instances whether or not to terminate pregnancy?

JUDGE THOMAS: Senator, first of all, let me look at that in the context other than with natural law principles.

SENATOR BIDEN: Let's forget about natural law for a minute.

JUDGE THOMAS: My view is that there is a right to privacy in the Fourteenth Amendment.

Well well well. Looks like he knows the law and how to read when it's to his benefit to. Disapointing though he did'nt say the fourth. I bet with enough research of his opinions you'd find that TOO>

 

[Zebo]

Again, exigent circumstances exempting the government from obtaining a warrant is already a well-settled and virtually uncontested principle of law. If someone reports that they heard gun shots and screams coming from inside your home, the police are coming in - warrant or not - and that is a legitimate exigent circumstance.

If while they are there, they happen incidentally to discover a meth lab, they just have to let you continue producing meth in the 'privacy' of your home?

"unreasonable" it's in there for this reason.

 

[Shantanu]

There is no right to privacy in the Constitution.

 

[Jened]

ummmm it's not in the Constitution, why don't you try reading it? The opinion was laughable saying there was a transcendant right of privacy. Transcendant? What the heck. Imaginary is more like it.

 

[yellowperil]

The right to privacy is inferred from the Bill of Rights and the 14th Amendment. So yes, it is not in the Constitution per se, but that doesn't mean it doesn't exist. It is not un-constitutional, either. If you look at the broad scope of the substantive due process clause, you can reasonably infer that privacy is part of the liberty that States cannot deprive from its citizens. You can argue either way but the fact is since Marbury v. Madison the Supreme Court has the final say in interpreting the constitution and they have interpreted that clause in saying there is a right to privacy. I don't know about the 'transcendant' part; some of the justices might subscribe to natural law theory but regardless the right to privacy currently does exist, if only because the majority of the Supreme Court believes it does.

 

[LunarRay]

Originally posted by: Shantanu
There is no right to privacy in the Constitution.

All the rights not granted the Federal Government are granted to the States and or the People... So if "Privacy" is not in the Constitution, I must, therefore, have it... And I don't want to share it...