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View Diary: Extremist Conservative Legal Reasoning on Abortion Rights (269 comments)

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  •  wearing latex rubber (none)

    The constition doesn't take a specific position on whether or not I'm legally allowed to wear a latex rubber superman outfit in my bedroom.  

    Therefore I can conclude some states could legally and constitutionally outlaw this?  

    I don't think so.

    Right to privacy, dickweed.

    Why do the facts, reality and objective truth hate America and the baby Jesus?

    by WinSmith on Mon Aug 08, 2005 at 10:04:47 AM PDT

    •  Once they argue away that right (none)
      Then the gov't will make bedroom web cams mandatory.

      Say, that's kinky.

      Perverts.

      •  That is the point... (none)
        the state cannot regulate personal behaviour unless there is a legitimate verifiable state interest.

        Generally, the state interest is that it can regulate personal activities that harm others. For example, I do not have the right to hit my girlfriend in the privacy of my own home.

        The right to privacy does not cover that, however I can watch cable channel HBO in my own home without someone telling me that I am violating some "community decency standard".

        Right to privacy is a very important personal freedom as it protects us from the state.

    •  same argument, different activity (none)
      The constition doesn't take a specific position on whether or not I'm legally allowed to snort cocaine in my bedroom.  

      Therefore I can conclude some states could legally and constitutionally outlaw this?

      If your answer to this case is different than your latex example, then you still have some thinking to do.

      OTOH, if government can outlaw cocaine consumption in your bedroom then obviously they can outlaw other bedroom activities.

      Courts operate on principles....or at least they should

      •  Interesting (none)
        But to equate the activities says something about you.

        The SCOTUS is Extraordinary.

        by Armando on Mon Aug 08, 2005 at 11:50:12 AM PDT

        [ Parent ]

        •  it might if i had equated them. (none)
          But my point was that they are similar in one salient aspect, they are activites that can be done in the privacy of the bedroom.

          So can government declare that snorting cocaine in the bedroom to be illegal? Or is it protected by our right to privacy?

      •  Doing drugs... (none)
        is an activity that damages the individual thus the state has a right to regulate such activity. If no one is harmed by personal activity no one has the right to prohibit that activity.

        For example, I cannot watch child pornography in my home, because a child was injured by the making of the video, therefore my action is assisting in that crime.

        I, however, do have the right to watch adult pornography because it is protected speach and a protected activity as part of my privacy rights.

        There are always grey areas, but this is the general rule when it comes to the right to privacy.

        •  how much damage (none)
          Doing drugs... is an activity that damages the individual thus the state has a right to regulate such activity. If no one is harmed by personal activity no one has the right to prohibit that activity.

          I guess we're lucky that abortion never harms an individual :)

          & damage from cocaine use is merely a possibility, not a certainty.

          I'm unaware of the damage clause in the privacy amendment. This naturally allows government to ban activities other that can cause `damages'.  Can't smoke cigarettes in your bedroom...to much damage. Gay male sex can spread the damaging aids virus....so that can also be regulated.  Alcohol kills all those brain cells and can damage the liver. Fast food...don't even start with that fast food in the bedroom.

          You sure you want to go with this premise?

          For example, I cannot watch child pornography in my home, because a child was injured by the making of the video, therefore my action is assisting in that crime.

          A 14-year old boy scoring with a porn-star is damaged by the experience?  A 5-year old girl, sure. But you're about to allow a lot more kinds of porn to be permitted.

          i guess statutory rape laws are now unconstitional.

          I, however, do have the right to watch adult pornography because it is protected speech and a protected activity as part of my privacy rights.
          There are always grey areas, but this is the general rule when it comes to the right to privacy.

          Do I have a right to skin kittens alive in my bedroom? Or are those animal cruelty laws legal? No one is getting damaged ya know.

          Without a written right to privacy....everyone may choose what they think it includes. This is not good.

        •  Your logic (none)
          By this logic it is clear that the Constitution does permit regulation, or even prohibition, or abortion.

          Abortion does, after all, hurt at least one person: the unborn baby. It also, in many cases, hurts the mother of that unborn baby.  And the father, too, can suffer emotional distress of a grave nature.

          I, of course, am not one who believes that there is any "right to choose" abortion in our Constitution. I think this is an issue that should be left up to legislatures.  The democratic process should not be feared on this issue.

          One could not reasonably argue that there is some unspecified "right" to use drugs or alcohol, or even to smoke cigarettes. Those behaviors are widely understood to be subject to legislative regulation. Abortion should be treated the same way.

      •  this isn't right (none)
        It's not the snorting in your bedroom that's illegal - it's the possession. Doesn't matter where you have have the illegal substance & indulge - it's that the stuff is a controlled substance.

        They don't charge people with snorting, they charge them with possession.

        Currently, it is not illegal to own a condom, you really can't compare the 2 situations.

        •  Yes, but why? (none)
          Why is the possession illegal? What does owning or using a line of cocaine do that is damaging to society?

          The government should not have a right to regulate the things I do to myself personally, only where my actions cause interactions with the rest of society (beyond cleaning up my corpse, which I'm sure they already bill to my theoretical estate...). The Cocaine question - while not quite like full-body latex IMHO - is a valid one in this context. When my theoretical drug use crosses over to affect society (e.g. "I think I'll slam into a family of six tonight"), then society has a right and duty to penalize me. The parent poster is right - if you have two different answers for these two questions, you probably need to keep thinking.

          Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves. - William Pitt

          by Phoenix Rising on Mon Aug 08, 2005 at 12:59:03 PM PDT

          [ Parent ]

          •  first off, thanks for the agreement (none)
            second: if the standard is as you've described, can i torture animals (that i own) in the privacy of my home?

            Are animal cruelty laws unconstitional?

            •  Hmmm.. (none)
              Funny... it seems to me animal cruelty laws are unconstitutional.  But they are not anti-cruelty laws at all.  For if I tortured a rat in the privacy of my bedroom, I expect it to be okay - not too different than feeding it to a python.  However, if I were to videotape my torture and put that on public display - then I could expect repercussions for having violated the public's sense of decency.  So in some sense, anti-cruelty laws are really just one aspect of laws enforcing public decency.  However, this logic is predicated on the idea that I can completely own an animal.  Since the state has an interest with a number of endangered or threatened animals, I would argue that this reasoning doesn't extend universally.
          •  well (none)
            When my theoretical drug use crosses over to affect society (e.g. "I think I'll slam into a family of six tonight

            I think a key point of you comment here is that it is a little late once you hae already plowed into the family of six.  We want to stop you before that happens, and one way to do that is to prevent the drug use from happening in the first place.  

            Clearly the basis for all drug use/possession laws is that (1) that are bad for you, and we know best, and (2) use hurts society through your drug-induced acts, and whatever health costs you inflict.

            How could dressing up in latex in your bedroom possibly have those same effects?  at least, no rationale argument for it could be made, and that is the difference.  Courts have to look at the rationale for the privacy restriction.

            Same for torturing kittens.  Bad because (1) it impacts your psyche, and (2) bad because it upsets other people.  Now maybe you could make the same argument for wearing latex supersuit, but a court won't buy it.

            •  ok (none)
              I think a key point of you comment here is that it is a little late once you hae already plowed into the family of six.  We want to stop you before that happens, and one way to do that is to prevent the drug use from happening in the first place.  

              That must be why alcohol is banned in the US.  hey...wait a minute, no it isn't. How odd. Apparently it is much worse to be killed by a guy on coke, then a guy on Jack Daniels.

              i think it rather clear that the threat posed to people driving is not determinative.

              Clearly the basis for all drug use/possession laws is that (1) that are bad for you, and we know best, and (2) use hurts society through your drug-induced acts, and whatever health costs you inflict.

              Starting to sound like the right to privacy is pretty limited. Sounds like these same arguments would have fit the Texas sodomy case, yet that time privacy won over public interest.

              How could dressing up in latex in your bedroom possibly have those same effects?  at least, no rationale argument for it could be made, and that is the difference.  Courts have to look at the rationale for the privacy restriction.

              Part of my problem with the idea of a right to privacy is that i can't read the statute. How do we know what the proper construction is without a decently written rule that followed public debate (& sometimes that is not enough).

              Same for torturing kittens.  Bad because (1) it impacts your psyche, and (2) bad because it upsets other people.  Now maybe you could make the same argument for wearing latex supersuit, but a court won't buy it.

              oh lord. If privacy can be shot down on those grounds, then there is no right to privacy.  just how subjective is this going to get.

              •  response (none)
                That must be why alcohol is banned in the US.  hey...wait a minute, no it isn't.

                well it is banned under a certain age, and that is exactly the reason.  And that represents the government's determination of abilities and judgement of teenagers vs. adults, and courts have upheld that.  One could argue that it is wrong, as people have argued that Roe v. Wade was wrong, but that doesn't "unmoor it" from the Constitution. It is just what courts and the legislature does.

                Sounds like these same arguments would have fit the Texas sodomy case, yet that time privacy won over public interest.

                no, again you are failing to understand the legal standard.  The restriction on privacy has to meet a test: i.e. rationally related or compelling state interest.  In the Texas sodomy case or the Massachusetts same sex marriage case (yes, state law but still can draw a conclusion from it), the court held that the government interest wasn't sufficient.

                Part of my problem with the idea of a right to privacy is that i can't read the statute. How do we know what the proper construction is without a decently written rule that followed public debate (& sometimes that is not enough).

                sorry, I can't understand your point here.  You look at the construction of the restriction on privacy, you look at the state interest, you look at whether the restriction achieves the interest, and you look at whether the interest is compelling.  Is your problem that "privacy" is not defined in the Constitution?

                oh lord. If privacy can be shot down on those grounds, then there is no right to privacy.  just how subjective is this going to get.

                first, that was a two-second, why are animal cruelty laws not unconstitutional reasoning, I would hardly expect it to hold up in court.  Further, show me a different law that would meet that standard, and then you can say that "there is no right to privacy".  
                second, all laws are subjective - look at the determination that drugs are worse than alcohol  (as you point out).  The question for constitutionality is whether the law impinges on our rights, the value of the right (right to control my body vs. right to torture kittens), the reason for the restriction and the compelling interest the state has in that reason.  

                This isn't rocket science. Why is this so hard?

              •  alright (none)
                well it is banned under a certain age, and that is exactly the reason.  And that represents the government's determination of abilities and judgement of teenagers vs. adults, and courts have upheld that.  One could argue that it is wrong, as people have argued that Roe v. Wade was wrong, but that doesn't "unmoor it" from the Constitution. It is just what courts and the legislature does.

                If the drunk driving theory was right, they would only ban those drugs for people over 16, since people under 16 can't drive. Kids could then use them in the privacy of their bedrooms.

                Of course they should be illegal and deciding that is a legislative function, not a judicial one.

                Sounds like these same arguments would have fit the Texas sodomy case, yet that time privacy won over public interest.

                no, again you are failing to understand the legal standard.  The restriction on privacy has to meet a test: i.e. rationally related or compelling state interest.  In the Texas sodomy case or the Massachusetts same sex marriage case (yes, state law but still can draw a conclusion from it), the court held that the government interest wasn't sufficient.

                But it did meet the criteria you stated. (1) bad for you and (2) hurts society with health costs (Aids, etc.).  Of course that legal standard is itself stated nowhere in the constitution and a different set of judges can choose another standard.

                sorry, I can't understand your point here.  You look at the construction of the restriction on privacy, you look at the state interest, you look at whether the restriction achieves the interest, and you look at whether the interest is compelling.  Is your problem that "privacy" is not defined in the Constitution?

                It isn't defined, heck it isn't mentioned. I have a fair idea of my free speech rights since I can read the amendment. I cannot do that for privacy since no one ever wrote the amendment. I know about search and seizure since it is enumerated.

                In fact it seems to me that if a general right to privacy existed, there would be no need to state a specific type of protection like the 4th amendment does.

                first, that was a two-second, why are animal cruelty laws not unconstitutional reasoning, I would hardly expect it to hold up in court.  Further, show me a different law that would meet that standard, and then you can say that "there is no right to privacy".  

                My porn collection could be bad for my psyche and it could upset other people...my wife for one. So it could be made illegal too.

                second, all laws are subjective - look at the determination that drugs are worse than alcohol  (as you point out).  The question for constitutionality is whether the law impinges on our rights, the value of the right (right to control my body vs. right to torture kittens), the reason for the restriction and the compelling interest the state has in that reason.  
                This isn't rocket science. Why is this so hard?

                You really need to stop making up rights. There is no right to control my body. Nor is there a right to torture kittens. It is illegal to torture kittens and there are activities that are illegal to do to with body (is prostitution constitionally protected?). A 10-year old can't get her ears pierced. Is that law unconstitutional? Or do we get extra rights as we age?

                Laws can make arbitrary distinctions to treat drugs/alcohol differently. Rights don't work that way since one case becomes precedent for other cases. A same-sex marriage decision will become the basis for the legalized polygamy lawsuit.

                Once the courts decide they can override state decisions on what products can be sold, they've ceased to be a judiciary and have become a super-legislature.

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