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

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  •  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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