Lawrence v. Texas

[Peter]

"Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress." -- Justice Kennedy, for the Court in Lawrence.

I would, of course, concur in the Court's judgement.

[Peter]

So they can't deprive them from the freedom to murder?

Libery isn't the freedom to do whatever the hell you want, it is as Justice Blackmun said in Bowers (echoing Justice Brandeis), "the right to be let alone."

Laws prohibiting sodomy in this context were outlawing consensual behaviour between adults, done in private with no commercial element. If there is no right to this contained in Liberty then there is truly nothing contained in Liberty.

[Peter]

why can't you be left alone to grow weath on your own farm to feed your own hogs

Presuming you mean wheat, then I think you should be able to do so free of state interference provided that these hogs do not become involved in acts of commerce at some later stage.

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The Right to bear arms is otherwise protected by the Constitution, so the point is moot.

[Peter]

I don't know your own view on Roe or Raich, so I can't say this refutes you but I think Justice Kennedy has some answering t do.

My own view on Roe is that it is unsound constitutional law, though if I were a legislator, I could not see myself legislating much beyond what is presently allowed under Roe. Though I don't base my view of abortion regulation on the fact of money changing hands, but on the fact that I don't consider regulating it an arbitrary removal of liberty under any reasonable standard.

Medical procedures are generally protected under the right to life clause, even though there are acts of commerce occuring. However, abortion (or other procedures) for "social" reasons is not pursuant to protecting such life and is such unprotected. Obviously abortion for a health or life reason is protected under the right to life doctrine.

When you say Raich v. Ashcroft, I think you mean Ashcroft v. Raich (later Gonzales v. Raich). In this case there is no need to explore an arbitrary denial of liberty, though I think a point was raised earlier in the case. The question presented is: Did Congress abuse the Commerce Clause in prohibiting CA from allowing persons to use their homegrown cannabis for medicinal purposes? Of course it did is my answer.

Since California wasn't attempting to regulate these people's right to use their own homegrown cannabis, then theres no need to explore a liberty interest in the case.

[Peter]

The federal government was.

I'm not sure what your point is. I already stated that I don't believe that Congress had the power to do what ultimately the Court has allowed it to do.

[Peter]

The right to be alone should include all drugs, not just marijuana for medical purposes. You're inconsistent.

How have I been inconsistent? I don't believe I've ever stated anything to the contrary to my above statements. Of course, the State may regulate any commerce that goes on involving the drugs, but the drugs in question in Raich were homegrown and were not in anyway involved in an act of commerce.

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Due process of Law seems to indicate that a rational decision is being taken on some level with discernible logic. Removing a liberty simply because the "majority doesn't like it" is not due process of Law and is simply an arbitrary grab of liberty not supported by the Constitution.

[Peter]

The fifth amendment supercedes the commerce power of Congress. Thus, Congress can not regulate commerce if it takes away liberty without due process.

I think I need to clarify what I've said because either I've been unclear or you've misinterpreted me:

The question in Raich was: Does Congress have the power under the Commerce Clause to regulate non-commercial homegrown marijuana that does not cross a State line?

My answer is simply no because its a ridiculous stretch of the Commerce Clause that statedly requires that the Commerce be going on between the States for Congress to regulate it. Clearly that isn't the case here, so Congress is miles outside of its enumerated powers.

I don't even need to look at a fundamental liberty question in this case, as the Commerce Clause is much more direct.

I know you don't like my idea of substantive due process, and we've been around this block enough times before to know that we won't convince the other, so I'll just agree to disagree with you on it.

[Peter]

I don't take a view of privacy in Raich at all because I don't need to, as stated.

Once acts of commerce come into play, the State has the power to regulate over and above the right to privacy, though not necessarily over other rights (such as the right to life).

There is an act of commerce going on in Roe, i.e. the getting somebody else to perform an abortion thing, there is not in Lawrence since we are talking about a private relationship in a private residence.

Also beyond the Commerce argument, my definition of substantive due process as above means that all the State needs to do is find a rational basis for its regulation of abortion beyond the "majority doesn't like it" and its home. The rather glaring one of protecting the potentcy of a person seems to come into play, there's no such rational reasoning available to justify the Laws struck in Lawrence.

[Peter]

They are unconstitutional, but I dare anybody to have successfully consume the stuff without having:

1. Bought or received the stuff from somebody else, thus breaking a law prohibiting the act of commerce involved, or

2. Bought or received the raw materials for making the stuff from sombody eles, thus breaking another law prohibiting the act of commerce involved.

All in all, there would be a fractional percentage of prosecutions struck. Anyway and besides, I think that most jurisdictions don't criminalise consumption.

[Peter]

But there is no interstate commerce in Raich, and that was what was in issue in the case. If there is no issue of interstate commerce, then Congress cannot regulate.

If we were to get into a question of say, the State of Nebraska, attempting to regulate a person similarly situated to that in Raich, then we have to go to the privacy argument, but that has nothing to do with Raich, since Raich was to do with the federal government, obviously, of course, yes.

[Peter]

The decision was most certainly correct, and was constitutionally sound. States, in my view, are prohibited by the Fourteenth Amendment's due process clause from arbitrarily depriving people of liberty, as was done in Texas.

I suppose that I must retract this previous statement, which I now think is completely incorrect. On reflection, it would appear that Lawrence was incorrectly decided. The notion of "due process" had always been understood as encompassing only procedural protections, until Dred Scott v. Sandford.

What are your thoughts on Justice O'Connor's concurrence.