Comments on: #OccupyWallSt, Then #OccupyKSt, Then #OccupyMainSt Blog, news, books Thu, 12 Oct 2017 08:56:00 +0000 hourly 1 By: Karl Mon, 14 Jul 2003 19:09:55 +0000 “Courts should not be censoring what people see or read in the name of morality, religion, or squeamishness.”

It seems the Court agrees with you, Hank. I’m not arguing this point, however. I believe the major problem with the Court’s opinion that you’re sidestepping is their failure to discuss the fact that until Lawrence preserving morality and public decency was a legitimate state interest, and the Court overturned hundreds of legal precedents without a word regarding Stare Decisis.

It may be conjecture on my part to say that I believe the Court’s nearsightedness would have been laid bare if they had attempted to reconcile the methods they used in Lawrence with their precedent, but I think Justice Scalia makes many convincing points in his dissent regarding the rationale the Court employs, and how it allows for, if not necessitates, the overturning of Roe and Casey.

As an aside, the point regarding majority will and the 2000 presidential election has been raised before, and it is no less off-topic now. Our electoral system purposefully chooses to ignore the will of the majority. The electoral college was created for just that reason. The same can be said to some effect as regard our legislatures and courts. However, I don’t believe it is spelled out as firmly, nor should it be tolerated to the same degree.

Also, as has be stated above, discussion of the ninth amendment is misplaced, as the Court does not reference it once, and your analysis of the Due Process Clause is lacking, as the Due Process Clause does not grant any liberties; it simply states how and when liberties can be taken away.

The issue of ‘consent’ was also dealt with earlier in this discussion as regards beastiality. We don’t require consent of animals to do things to them that would be illegal if done to a human. Thus, there’s no reason to believe that any consent is necessary beside the human who wants to commit the act with the beast. The Lawrence decision creates a wall of privacy surrounding the bedroom that cannot be pierced for reasons of fostering morality. Tell me what other reason their is to prohibit bestiality.


By: John Tue, 08 Jul 2003 18:48:27 +0000 > In the case presented, police were present because of false information. Had the
> couple been of opposite sexes, who believes there would have been a prosecution?

Also, had the couple not happened to be an interracial couple, would there have been a prosecution? Would there have even been an arrest?

Perhaps the Justices noticed the smell of old-time, rotting crow in the case, and took the opportunity to dispose of a law that was certainly being selectively enforced.

By: Karl Mon, 07 Jul 2003 16:54:57 +0000 Don,
I never claimed that the text was ‘clear’, and I’m not saying it’s an easy job to determine what the authors of the Constitution meant; I don’t envy the Court in these difficult matters.

What I’m saying is that I know language can be much more exact than we give it credit for in modern society (and, as an aside with all due respect to present company, I think lawyers are much to blame for the lack of faith we have in language). I mean to critique the theory that every word of the Constitution is open to interpretation and debate. I don’t want to dwell on specific words or phrases.

While I don’t purport to know the truths of every phrase that sprang from the founding father’s pens. I’m absolutely clear on the fact that the authors of the Constitution didn’t mean to include homosexual sodomy under the definition of liberty. I don’t need Jefferson’s notebooks to glean that from history. And, when the Equal Protection clause exists to strike down laws such as the one in Lawrence, there is no need to go into the mire and attempt to reconcile such modern mores with the obviously inconsistent feelings of the past.

I believe the court’s failure to use a fine pen in the Lawrence decision will have undesired results. The court’s Opinion instills the Constitution with much broader language than the framer’s intended, striking down language that had been carefully crafted. I find the Court to be near-sited, an conclusion that is belayed by their lack of discussion of the matter of Stare Decisis. In the span of a decade, promoting morality ceased to be a legitimate state interest, with no explanation from the Court.

I’m sure you feel otherwise, but really only time can tell.


By: Don P Mon, 07 Jul 2003 16:14:37 +0000 Then exactly WHAT does constitutional “liberty” MEAN, in your view? Exactly WHAT forms of liberty does this right protect? Freedom from physical confinement, and nothing more? Or what? You keep alluding to some alleged historical record that makes the limits of constitutional liberty clear, but I see no such record.

The same question can be asked about other terms. What, exactly, does “cruel and unusual punishment” mean? Exactly what forms of punishment by the state does this phrase prohibit? Torture? The death penalty for theft? Ditto for “keep and bear arms.” Does “arms” include machine guns? Chemical weapons? Nuclear weapons?

I don’t know how you can seriously claim that the meaning of these words and phrases is clear.

By: Karl Mon, 07 Jul 2003 04:33:51 +0000 Don,

I guess this idea of evaluation and interpretation is one of the many topics upon which I have differing opinion from most of the people who responded on this topic.

In my study of philosophy (specifically Hegel, who I believe invented more words than anyone else in the history of the written word), I’ve come to realize that language is a very specific tool, especially language that has been debated, changed, and ratified by a body as esteemed as the founding fathers.

I believe there are explainations for the beliefs you, and many others here, hold, inherent in modern conceptions of language (like…you know…whatever), which have perverted the previously more rigid nature of words. Today, many believe that every word of the Constitution is open to be interpreted, but most forget that in the majority of cases this has already been done. The historical record is there, we can see the different draft forms that different articles and amendments took, and understand why the text was written the way it was.

This belief, combined with my strict Constitutionalism, leads me to firmly believe that there is no reason to interpret any additional tenets into the fundamental document of our law (which can be equated to changing the rules of the game ex post facto) when there are existing rationale to strike down the law.


By: Don P Sat, 05 Jul 2003 21:21:33 +0000 Karl:

The Constitution is full of words and phrases whose meaning is not self-evident and that need to be interpeted by the court in its evaluation of the constitutionality of laws presented to it. These words and phrases include “speech,” “religion,” “establishment,” “free exercise,” “keep and bear arms,” “cruel and unusual punishment,” “equal protection,” and, yes, “liberty.” Unless you believe that constitutional “liberty” means only freedom from physical confinement, and does not extend to other aspects of a person’s life, you cannot just summarily declare that the liberty right protected by the Constitution does not include private consensual sex. It’s all a matter of interpretation. The fact that sex or sodomy are not explicitly mentioned in the text of the Constitution is not relevant because, as others have pointed out, the 9th Amendment makes it clear that Constitutional protection extends to rights that are not explicitly enumerated in the document.

The Court’s inclusion of private consensual sodomy in the liberty right protected by the Constitution is not some radical new constitutional doctrine; it is the natural extension of a long series of prior decisions that have upheld liberty interest rights in the areas of sex, relationships, reproduction and family life.

By: Anon Sat, 05 Jul 2003 12:52:39 +0000 Woah, Genesis analogy seemingly out of nowhere, cool.

Anyway, good breakdown of the story of Onan, but it’s a bit more complex than that. The story is really about the law of God vs. the law of man. Onan’s brother was killed by God for being ‘evil’, and according to the law of his people his entire lineage would be branded such, including any children produced by his wife even after his death, no matter who the genetic father was.

Now, God wanted Onan to take his brother’s widow as his wife, but Onan refused to treat her like a wife, preventing himself from impregnating her so that she would not bear any more ‘evil’ children. So, when God struck Onan dead for ‘spilling his seed’, it had nothing to do with masturbation, as you pointed out, and little to do with ‘potential life’ as some have chosen to interpret it. Infact, the story is about trusting the law of God above and beyond the law of man. If God says have children with this woman, you do it. You don’t care if your people will brand them as ‘evil’, you just do it.

It’s a very tricky moral, especially applied to the case we’re discussing, and one that doesn’t seem to have much credence these days.

By: John Anderson Fri, 04 Jul 2003 19:55:57 +0000 Right decision, possibly for wrong reasons.

I concur more with Justice O’Connor than the majority, unless Texas has a history of breaking in upon hetero couples so engaged and prosecuting them. It doesn’t? Sounds like those written exams that used to be the practice in certain places, with different exams given based upon how “different” (ie, non-Caucasian) you were. “Tyranny of the majority.”

And if the state has no, or insufficient, rationale for a law or regulation or rule or what-have-you it should (as most states have done with sodomy laws) repeal it, and not try to enforce it in the meantime, and most certainly not try to enforce it selectively. The police who made the arrest may have been operating correctly because they are not allowed to pick-and-choose which laws to enforce, but the DA has discretion to refuse to prosecute.

And yes, I believe some mores change with the times. Homosexuality is one example, it used to be in the interest of the state to insist that all who could procreate should do so regardless of their desires, so as to ensure a sufficiency of workers (food, shelter, etc.) and soldiers (self-defence). This is still, unfortunately, a consideration in some places – but Texas?

Consider another: masturbation. when I was a kid in the fifties, it was considered horrible. The justification given was to call it “the sin of Onan”, as he ‘spilled his seed’. But look at the actual case: his “sin” was in not trying to make his brother’s widow pregnant! If someone today raped his sister-in-law and said it was to ensure his dead brother’s line continue, would he win in court?

By: Fuzzy Wed, 02 Jul 2003 16:39:08 +0000 ARGH! Privacy is not a balloon. It is a cornerstone of freedom. If a person does not feel safe and private, then they have lost their freedoms. The right to be free in our persons, houses, papers, and effects from searches is an explicit right to privacy. You cannot have free elections without a right to privacy. If you must give up the right to an anonymous vote, you sacrifice your democracy.
Further, some people seem to also assume that unless an explicit individual right is spelled out in the Constitution or Bill of Rights that the government can control it, while in fact it is the exact opposite. This was one of the arguments against the Bill of Rights made when the document was being written – the fear that the government would treat only the enumerated rights as reserved to the citizens. All rights (including those explicitly enumerated) that were not explicitly provided to the goverment are reserved for the people. This is not some sort of constitutional constructionism – it is there in “black and white”.

By: Karl Wed, 02 Jul 2003 15:51:40 +0000 Dana,

Don’t get me started on the tax code…there are so many fundamentally unconstitutional parts that I won’t even bother.

As far as ‘empowering mobs’ is concerned, I’ve never heard the state legislatures referred to as such, but I guess you’re entitled to your opinion.

From above: “I don’t think I could find a Constitutional problem if a state chose to outlaw contraceptives across-the-board.” I think the State is within it’s rights. I’d like to see gounds…such as the fact that many contraceptives can pose significant health risks, but I’m not sure they’re required by the Constitution.

Just to clarify something for you all, I’m a recent college grad with only two law courses under my belt. I could be legally wrong on any of the above, but then again it’s all just my opinion. I appreciate the debate, and the exercise is what is most important to me.


By: Bruce M. Wed, 02 Jul 2003 15:32:24 +0000 What about a law that bans contraceptives for everyone (married, unmarried, etc)? Do you think that would be constitutional?

By: Dana Powers Wed, 02 Jul 2003 14:44:43 +0000 Karl,

Wouldn’t, then, the recent marriage tax breaks be unconstitutional? I’m not married – so what? – why do I have to pay more taxes?

There is no ‘privacy’ balloon. There are simply people who believe the Constitution is supposed to protect individuals, not empower mobs. And rightfully so.

By: Karl Wed, 02 Jul 2003 13:49:44 +0000 James,

A law that forbid sale of contraceptives to unmarried individuals would be unconsitutional on Equal Protection grounds, just as I believe the law in Lawrence was. I don’t think I could find a Constitutional problem if a state chose to outlaw contraceptives across-the-board. That said, I don’t think a democratic majority in any state would want to outlaw contraceptives totally.

I think there is adequate language within the Constitution and the democratic process to protect individuals without resorting to the inflation of the ‘privacy’ balloon.


By: James Wed, 02 Jul 2003 12:49:19 +0000 Karl –

How do you feel about the contraception cases that were precursors to Roe v. Wade? If I am not mistaken, the Supreme Court has held that the Constitutional right of privacy extends to the use of contraceptives by unmarried individuals.

But from your argument, it would seem that you disagree with privacy rights being used to protect the choice to use contraceptives — you would seem to advocate leaving this up to the democratic processes of states, and thus possibly having use of contraceptives outlawed depending on local mores.

I just want to see exactly how far your “strict Constitutionalism” extends.

By: Dana Powers Wed, 02 Jul 2003 11:56:52 +0000 For what its worth, I used to live within walking distance of Castro/Market, and the flag Dr. Lessig mentions is impressive to say the least. I dont think words can express how dramatic a statement it is to have it willfully and graciously, if only temporarily, replaced with an American Flag. I really wish I were still there to see it.

By: Bruce M. Wed, 02 Jul 2003 00:13:51 +0000 Fuzzy: Blacks, Hispanics, and Native Americans are the 3 Officially Recognized Minorities (ORMs). True, the Supreme Court did not preclude other minorities, such as Asians or Jews, from eventually gaining ORM status. But as for right now, if you are a minority not among those 3 special ones, your status is not “taken into consideration” (in other words, it doesn’t help you at all in the application process.) An Asain or an Arab is just as evil as Mr. Whitey. I suppose we all know that Asians can do just fine on the LSAT, and most of them have excellent undergrad GPAs… so they don’t need the help that the poor dumb black people apparently (and now, officially) need. No, *I* do not believe this to be true, but it’s now the law of the land.

“Race taken into account” is a euphamism for “giving them extra points.” There’s no other way to see it. The only thing that’s not allowed is to actually have a “you get x number of automatic points out of y total points for being black/hispanic/native american.” But it’s perfectly fine for the a black/hispanic/native American applicant to have his/her race “taken into account” upon application. Since it would surely be unconstitutional for race to be taken into account in a negative way, it necessarily means that race can only be used in a positive way to help the minority applicant (surely there would be major problems… riots, looting, etc… if a black person, even unqualified, were to be excluded explicitly because her race were “taken into account.”)

I have a dream. I have a dream that one day, everybody’s race can be taken into account, to their benefit, upon application to any given position.

Points, plusses, gold stars, extra credit, bonus kudoz–whatever you want to call it–they get that extra benefit solely because they belong to an ORM. As long as that extra benefit is not expressly quantifiable, it’s apparently constitutional.

One more thing to think about. For ORM members to have their races taken into account to their advantage, that means white applicants (or any non-ORM applicant for that matter) ipso facto have their race taken into account too–to their disadvantage. That means my non-ORM status actually HURTS me. I feel like rioting and looting, but it’s nearly 100 degrees outside and I’d rather sit on my ass and watch HBO. Anyway, I’ve already been to law school, what the hell do I care?

By: Karl Tue, 01 Jul 2003 23:06:35 +0000 Michael,
I agree with every word. One of the very few commentators who I’ve seen take a hard look at the meaning of Lawrence is William Safire in this insightful piece.

I know the professor is busy with ILaw, or we’d probably have already heard plenty from him on this debate. I’m sure he will lend his full voice to the matter soon enough.


By: Michael Koenecke Tue, 01 Jul 2003 22:18:19 +0000 In response to Fuzzy: what you’re saying is that racial preferences need to continue existing until we have a perfect world. I’ve got news for you: that’s never, ever going to exist.

Me, I think racial preferences *perpetuate* class distinctions and racism. The Supreme Court has given its imprimatur to the concept that what counts to differentiate people from each other is skin color. “Diversity” here does not mean differing cultural or economic backgrounds: it means differing amounts of melanin. The Ku Klux Klan would agree wholeheartedly. Until we reach Martin Luther King’s ideal, where a man is judged not by the color of his skin, but by the content of his character, we will continue to perpetuate racism on an institutional level.

Regarding the Lawrence case: I, too, agree the Texas law should have been repealed years ago. But I, too, think the majority opinion is simply bad law.

For what it’s worth, I am a lawyer. Having appreciated Professor Lessig’s work previously, I am rather disappointed at his knee-jerk approval of the recent Supreme Court decisions: like all other commentators I have seen, the reasoning really goes no farther than “laws against sodomy are *bad*, so they *should* be unconstitutional. Yay!” I agree laws against sodomy are bad, but disagree that “bad” equals “unconstitutional.”

By: Fuzzy Mon, 30 Jun 2003 22:56:46 +0000 There are some quotes I believe deserve a reply – Frederick Douglass asks for “simply justice” and few would argue with that. However, what we have found as a society is that “separate is not equal” and that institutions from banks to the police to the judicial system have not always provided simple justice. The facts in many cases are: that some neighborhoods who have large populations of people of color have been “redlined”; that some people of color who drive cars are racially profiled and improperly singled out; that people of color are more likely to be convicted and likely to be more severely punished, even when equalizing for economic levels. I think that saying “All I ask is, give him a chance to stand on his own legs! Let him alone!” ignores the last 30 years of history, where it has been shown that society can still try to cut the legs out from under a person of color. In most of our ideal worlds, being left alone to forge your own destiny is all that is necessary for success. This is not that ideal world, yet.

By: Karl Mon, 30 Jun 2003 21:58:07 +0000 I think these words are beyond rebuttal, but I’m open to hear from anyone who thinks otherwise.

Justice Thomas, dissenting in Grutter v. Bollinger, at 1:

“Frederick Douglass, speaking to a group of abolitionists almost 140 years ago, delivered a message lost on today’s majority:

‘[I]n regard to the colored people, there is always more that is benevolent, I perceive, than just, mani-fested towards us. What I ask for the negro is not be-nevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us. . . . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and dis-posed to fall, let them fall! . . . And if the negro can-not stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! . . . [Y]our interference is doing him posi-tive injury.’; What the Black Man Wants: An Address Delivered in Boston, Massachusetts, on 26 January 1865, reprinted in 4 The Frederick Douglass Papers 59, 68 (J. Blassingame & J. McKivigan eds. 1991)”

I am of the opinion, like Justices Thomas and Scalia that the decision in Adarand makes any all classifications based on race, for the purpose of positive or negative treatment unconstitutional. “Purchased at the price of immeasurable suffering, the equal protection principle reflects our Nation’s understanding that such classifications ultimately have a destructive impact on the individual and our society.” (Adarand Construction Inc. v. Pena,, 515 U.S. 200, 240 (1995)(Thomas, J. concuring in part and concurring in the judgment).

Theoretically, I believe that settles the issue, and pragmatically, any possible benefit gained by minorities through Affirmative Action is countered by the way “[t]hese programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are ‘entitled’ to preferences.” Ibid. at 241.


By: Fuzzy Mon, 30 Jun 2003 21:20:58 +0000 Bruce, in my opinion, you have two flaws in your reasoning about affirmative action. The first is that the Supreme Court did not say members of three races get extra credit. In fact, that was explicitly prohibited in the the Univerisity of Michigan undergraduate case that was decided at the same time as the law school admissions case. An applicants race may be taken into account on an individual basis but all applicants cannot simply be given extra points because of their race. The second error (in my opinion) is to assume that just because all men are created equal that they all receive the same environment or treatment. Nature and Nuture are both parts of the whole and there is more than just economics involved to the nurture side. The fact is that there are many forms of subtle (and not so subtle) discrimination against people of color in this country (the USA). Yes, it is possible for outstanding individuals to overcome these roadblocks and even to emerge stronger, but we should not depend upon all people being outstanding.

By: Bruce M. Mon, 30 Jun 2003 21:13:23 +0000 There are most certainly areas of morality and ethics that don’t have to do with religion (ever take the MPRE? hehe). Proscriptions against sodomy/homosexuality, however, are entirely religious. A secular argument cannot be made to support it being unethical/immoral, and certainly there is no secular argument for making it illegal. I live in Texas, and trust me, this whole “illegal sodomy” stuff is nothing more than a Jesus thing.

The Constitution, and more specifically the Bill of Rights, limits what the government can do. It doesn’t say “the people have the fundamental right to freedom of speech” but rather “congress shall make no law…abridging the freedom of speech….” Yeah the Court often uses what amounts to a legal fiction of saying x is a fundamental right, liberty, liberty interest, or whatever they feel like calling it. But that’s just shorthand so the Court knows what standard of review to use (strict scrutiny, rational basis, etc.) Or to be more cynical, it’s just shorthand so that we, the readers of their opinions, get the impression that their decisions are not as arbitrary as they really are. But it all comes down to limiting what the government (at the behest of the majority) can do.

Yeah, I agree re: Thomas’ dissent. How anyone can read that and, in good faith (i.e. no agenda) disagree, boggles my mind. I’d be curious how/why Professor Lessig believes the case was properly decided, as I find that I agree with him nearly all of the time and consider him to be an incredibly smart guy.

By: Scott Mon, 30 Jun 2003 21:06:42 +0000 Unlike a lot of the respondents, I an neither a lawyer, nor a law student. It seems to me that a law which can only be enforced through “unreasonable search” must be struck down. Otherwise we succumb to the excesses of (for example) the 60′s where enforcement discretion was used to persecute a class not necessarily otherwise legally identifiable.

Unenforceable laws have no place on the books; they are both anathema to equal treatment and enticement to corruption. Laws against public sodomy would be OK with me (don’t scare the horses and all that), but are subsumed by laws against public sexual behavior. In the case presented, police were present because of false information. Had the couple been of opposite sexes, who believes there would have been a prosecution?

By: Karl Mon, 30 Jun 2003 19:14:53 +0000 Bruce,

I agree with much of your argument, but I do think there are areas of morality and ethics (my degree is in Philosophy) that have nothing to do with religion. (See the argument above regarding cruelty to animals and whether laws preventing it are allowed until this new no-morality jurisprudence.)

>The result of Lawrence is not a new right granted, but rather >a clarification on that which the government cannot legally >do.

I’m having a difficult time with this. I don’t understand why the Court spent so much of their time on dicta regarding ‘fundamental rights’ and ‘liberty’ if the result is simply proscriptions against the government. It seems rather clear to me that the Court’s opinion extracts a new form of liberty from the Due Process Clause that did not previously exist, but I’d be happy to hear more about how I could be misperceiving this.

I agree wholeheartedly with your discussion of the AA case. I don’t know how anyone could read Justice Thomas’ opinion and vote to uphold AA.


I don’t think the way to get issues brought back to the fore is to ignore them. Perhaps the Justices are just that tricky, but for some reason I doubt it.


By: Fuzzy Mon, 30 Jun 2003 18:57:33 +0000 > My objection is not necessarily with this effect, but with the lack of care
> with which the court struck their own precedent, and the lack of mention
> of any of the tower of cases that were built upon it.

ROTFL. Yep, they must have just dashed off that opinion without any
thoughts at all. No siree, they are just a bunch on legal amateurs. Instead
of ascribing their opinion to lack of care, why not assume that maybe they
want to re-examine a set of issues? Why not assume that just as earlier
courts made errors with the issues of immigration and naturalization of
non-white people (Japanese, Chinese, Indian/Pakistani), that the court
has decided that a number of laws need to be re-examined in light of the
fact that we have a constitutional right to privacy that have been badly
eroded by a bunch of voyeuristic, paternalistic legislatures?