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View Diary: Scott Brown's model justice: Outlawing 'homosexual sodomy' is a no-brainer (86 comments)

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  •  Hinging, of course, on whether you think (1+ / 0-)
    Recommended by:
    Cassandra Waites

    there is a Constitutional right to privacy.  I think Scalia questions the concept.

    •  The Founders took it for granted that we did (0+ / 0-)

      and thought that they didn't have to spell it out.

      They. Were. SOOOO. WRONG!

      If it's
      Not your body,
      Then it's
      Not your choice
      And it's
      None of your damn business!

      by TheOtherMaven on Fri Oct 05, 2012 at 08:01:52 PM PDT

      [ Parent ]

      •  That's pretty dicey. The idea of a right (0+ / 0-)

        to privacy was basically invented by Louis Brandeis and Samuel Warren in 1890; previous to that the common law (in the US and everywhere else) was pretty unanimous in saying that such a right wasn't recognized by courts.  The authors themselves are really stringing together a ton of little details to give enough cover for a judge to create a new, socially-necessary (as they viewed it) cause of action (as judges in the common law do, every now and then).

        •  Fourth Amendment. (0+ / 0-)

          The Fourth is pretty damned explicit about CERTAIN rights to privacy:

          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.
          Wikipedia gives good background on this: those rights, recognized in English common law for centuries, were increasingly being violated, even more so in the Colonies than in England itself. The English put their own stop to that in England in 1765, but the Colonists had to do their own work piecemeal until the Bill of Rights.

          Also consider the Ninth Amendment:

          The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
          Nice and simple, and you'd THINK it couldn't be screwed up - but it has been, by totally ignoring it.

          If it's
          Not your body,
          Then it's
          Not your choice
          And it's
          None of your damn business!

          by TheOtherMaven on Fri Oct 05, 2012 at 09:07:22 PM PDT

          [ Parent ]

          •  "Certain" rights that could be (0+ / 0-)

            construed as implying a general right to privacy, as Brandeis and Warren did, but they hadn't been before that point.  The search/seizure provisions of the US Constitution (which have their origins in English law like "Semayne's Case" and "Entick v. Carrington")  What they did was quite clever, a good idea, and widely accepted because people liked it, but it's not something that was actually in the Constitution when it was adopted, nor was such a right recognized as one of the unspoken rights whose existence was allowed for by the 9th Amendment.

            •  How do YOU know? (0+ / 0-)

              The Ninth Amendment says what it says, and you're trying to twist it into saying the opposite: that the only rights that COUNT are the ones that ARE enumerated.

              Which is bogus bullshit.

              If it's
              Not your body,
              Then it's
              Not your choice
              And it's
              None of your damn business!

              by TheOtherMaven on Fri Oct 05, 2012 at 09:38:44 PM PDT

              [ Parent ]

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