NetNews Usenet Archive 1992 #27/NN_1992_27.iso/spool/alt/activism/18921

Internet Message Format | 1992-11-17 | 6.2 KB

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From: mfriedma@uucp (Michael Friedman)
Subject: Re: What conservatives really mean when they talk about "original intent"
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References: <[e-mail]>
Date: Tue, 17 Nov 1992 23:14:26 GMT
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In article <[e-mail]> [e-mail] (Karl Kluge) writes:
>> From: mfriedma@uucp (Michael Friedman)
>> Subject: Re: What conservatives really mean when they talk abou...
>> Date: Mon, 16 Nov 1992 02:57:14 GMT

>> In this post, Karl is either incredibly stupid or deliberately
>> misleading.  Take your choice...

>Don't project your own intellectual inadequacies onto the rest of us.

I'm not.  I'm quickly summarizing the key point of my post.  There is
a big difference between honest differences of opinion and people who
deliberately use verbosity and persiflage to hide gross mistatement
and attempt to mislead their readers.  I call them as I see them.

>> In article <[e-mail]> [e-mail] (Karl Kluge) writes:

>> >try reading Chief Justic Rehnquist's dissent in Planned
>> >Parenthood vs. Casey:

>> >"We have held that a liberty interest protected under the Due Process Clause
>> >of the Fourteenth Amendment will be deemed fundamental if it is -implicit in
>> >the concept of ordered liberty.-  Palko v. Connecticut, 302 U. S. 319, 325
>> >(1937).  Three years earlier, in Snyder v. Massachusetts, 291 U. S. 97
>> >(1934), we referred to a -principle of justice so rooted in the traditions
>> >and conscience of our people as to be ranked as fundamental.-  Id., at 105;
>> >see also Michael H.  v. Gerald D., 491 U. S. 110, 122 (1989) (plurality
>> >opinion) (citing the language from Snyder).  These expressions are
>> >admittedly not precise, but our decisions implementing this notion of
>> >-fundamental- rights do not afford any more elaborate basis on which to base
>> >such a classification."

>> >It is difficult to imagine a right more clearly "implicit in the concept of
>> >ordered liberty" that the right to have sex with a consenting adult partner
>> >of one's choice, yet by appealing to the status of sodomy laws through
>> >history it was decided (in Bowers vs. Hardwick, a case the Chief Justice
>> >cites as precedent later in his dissent) that this was not the case.

>> Of course.  Note the phrase "principle of justice so rooted in the
>> traditions and conscience of our people as to be ranked as
>> fundamental."  Like it or not, the right to lynch homosexuals is much
>> more protected under this standard than the right to engage in
>> homosexual sex.

>The quote mentions two standards, the "implicit in the concept of order
>liberty" one and the "principle of justice..." one. Unless you want to take
>a shot at arguing that the right to lynch someone is "implicit in the
>concept of ordered liberty"

Note the strawman.  Karl once again resorts to this kind of debating
tactic because his position cannot stand on its own.  I never
suggested that the right to lynch is "implicit in the concept of
ordered liberty".

>or have evidence that lynching is a "principle
>of _justice_ so rooted in the traditions and conscience of our people as to
>be ranked fundamental" then your attempt at a counterexample is moronic at
>best.

Lynching is a venerable American tradition, like it or not.  Also,
let's note that Karl is once again distorting my argument.  The right
to lynch was not presented as a counterexample.  It was presented to
make the point that the right to engage in homosexual activities is
not a "principle of justice...".  You may want it to be, but it isn't.

I also fail to see why this is "implicit in the concept of ordered
liberty".  As this connection has also escaped the Supreme Court for
200 years it is clearly non-obvious at best and must be justified
rather than asserted.

>In any case, you miss the point, which is that the second standard is not
>always in accord with the first, and would (if followed consistently) lead
>to clearly unacceptable conclusions. Or do you wish to argue that the
>Supreme Court was wrong in its decision in Loving vs. Virginia, and that the
>states or federal government have a legitimate power to ban interracial
>marriage? If so, then on what basis?

And here we get the hook... Karl is trying to put me in a position
where I must agree with him or admit to being a racist.  Cute tactic,
but kind of pathetic.

First off, let's note that the Supreme Court is not supposed to rule
based on concepts such as "justice" and "morality".  It is supposed to
rule based on the Constitution.  If there was no 14th Amendment then
the Loving decision would have been wrong.

As it happens, there is a 14th Amendment.  The legislative history of
the 14th Amendment is totally clear.  It is supposed to prevent the
states from denying blacks (or anyone else) their rights based on
race.  The right to marry the member of the opposite sex of your
choice is clearly one of the fundamental rights of Americans.  It's so
obvious they didn't even bother to put it into the Bill of Rights.
The 14th Amendment then carries it to the states.

I don't think even the most intellectually dishones people would try
to claim that the right to engage in homosexual activities is on the
the fundamental principles of justice upon which this country was
based.  After all, the majority of the Founding Fathers would probably
have been more interested in lynching a homosexual than in letting him
have fun with one of his fellows.

>> I am not an official Oracle spokesman.  I speak for myself and no one else.

>How fortunate for the rest of us.

Oh, how cute.  Should we all try to figure out some snide replies to
each other's signatures or should we leave that to the kindergarden
set?


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I am not an official Oracle spokesman.  I speak for myself and no one else.