Lawrence v. Texas

[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.

[The Duke]

I think their point on inconsistency is that you take a narrower constitutional view of privacy in Roe than on Raich and Lawrence.

[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.

[A18]

Let's put it this way. Are laws against consumption of cocaine unconstitutional because of the right to be let alone, or are you inconsistent?

[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.

[The Duke]

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.

Here's the problem.  Let's say the President hires you as the new White House Counsel.  Then one day he decides he's tired of the New York Times being mena to him, so tired of it he will press for legislation banning the publication of negative articles about him.  He asks you about the legality of this.  Do you tell him:

A) That's fine, its a regulation of commerce and therefore Congress has the power to regulate it.

-or-

B) You chimp faced frat boy moron, the freedom of the press governs in this case and you can't pass that law.

Obviously its B.  So I think we can all agree that the government only can excercise its powers, including the commerce power, when it doesn't infringe on the rights of citizens.  You in fact do have to address the issue of privacy in Raich, because if there is a right to privacy and that right's simplest definition is "to be let alone" then the fact that money changes hands is superceded by the right of a citizen "to be let alone".  Only by addressing the issue and establishing that there is no privacy right, or that there is such a right but that medical marijuana even when privately grown is not protected for whatever reason, can you even begin to move on the the commerce power.

[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.

[The Dowager Mod]

#1

[A18]

Not surprising that 64.1% of voters in this poll are idiots.

[Speed of Sound]

Not surprising that 64.1% of voters in this poll are idiots.

now its 63.4%! (proud member of 63.4%)

[Emsworth]

Since I'm bored, I will revive this debate.

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. By definition, a law cannot deny due process of law: such an assertion would be inherently contradictory, because due process of law is defined by the law.

To use Justice Thomas' words, the Texas law was an uncommonly silly one, but still constitutional.

[Cubby]

Not surprising that 64.1% of voters in this poll are idiots.

Is this a joke, because usually you are really good at constitutional issues and you are very smart, and then other times you make these laughable statements and I never know which is the real you.

[Jake]

It's the truth. Read Emsworth's latest post for a good reason why they're idiots.

[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.

[Emsworth]

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

Certainly, the concurrence strikes me as more sound than the majority opinion. I am more sympathetic to the equal protection argument than the due process argument.

Yet, I think that I would have to disagree with the line of reasoning she has used. According to her (and according to precedent), a law that appears to discriminate is valid under the equal protection clause only if it meets the "rational basis test" or a "compelling state interest standard." In general, I am quite skeptical of the various "tests" and "standards" that the Supreme Court has applied, because they have less to do with judicial review and more to do with vetoing policy. The "rational basis" test does not, I think, have any constitutional basis; there is nothing in the Constitution prohibiting states from passing apparently silly or irrational laws. Neither do I find the "compelling state interest" argument particularly compelling; again, there is nothing in the Constitution that requires a state to have a "compelling interest" when regulating something.

I could make a very crude argument to the following effect: Homosexuals and heterosexuals are both equally prohibited from enaging in same-sex sodomy, and equally protected in engaging in different-sex sodomy. Of course, this argument might strike one as absurd, crude, and callous, but it is, I think, constitutionally valid. (The same argument applies in the case of marriage.)