Like he's going to say anything other than that.

Get real.

Yeah, I thought for sure he'd say that Bush is above the law and accountable to no one. Fuck checks and balances, etc.

Sounds like I'm really missing out by skipping this freakshow.

I mean, honestly: Do you really think that the Constitution should permit the outlawing of contraceptives? Or, for that matter, oral sex?

I think you have it backwards. Those are State territory, not Federal, and even with the Inclusion doctrine in place, I don't think you really expect to have specific guarantees of the "freedom to eat pussy" enshrined in the Constitution, do you?

Mind you, I do think you have that freedom. I just think you need to talk to the states that have the temerity to pass laws banning it, not the USSC.

Not really apropos to anything, but I've always thought that "Penumbras and Emanations" would be a great name for a blog.

Constitution Protects Right To Privacy
Is he lying?

No. The 4th Amendment prohibits unwarranted searches. Sure, the protection is qualified, but it's in the constittuion and it is a right to privacy. So, I don't see how he could be lying.

Well, some people think that the constitution gives terrorist a safe haven by having an American phone number.

No president is above the law, as long as you don't count the pardon power. Seeing as how impeachment is really a political device, it all depends on how well the media can stir up passions.

He's referring, I believe, to the 9th Amendment, which basically says that just because certain rights and powers are listed in the Constitution, that doesn't mean other rights and powers not listed don't exist.

Even a good conservative can hypothesize laws which are so nannystate, busybody, and anti-freedom that they might say could be ruled unconstitutional even lacking a clear textual reference to that subject.

I'm not sure if I'm a good conservative or not, but the way I see that which is not in the Constitution should not be read into it, even if the people doing the "reading in" are well intentioned people who feel the same way I do.

The founding fathers drew a clear line in the sand on this issue with the 10th amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

This makes things very simple. For instance, the "right" to an abortion is not specifically laid out in the Constitution nor is the power to decide the issue specifically prohibited to the states, then the issue is to be left up to the individual states and the people living in them.

So while banning oral sex seems ridiculous to people like me, it is an issue to be left to the individual states. If Arkansas wants to ban it, so be it. Of course, Arkansas is going to have one hell of a time enforcing their law while remaining in bounds on the Constitution's protections of privacy, etc. Which is where the billiance of the Consitution comes in.

Brit Hume just reported that in the run-up to the Alito hearings, NARAL asked for 500,000 signatures to protest his nomination. Their progress so far? 2,000 . . . just 498,000 to go.

Is he lying? Or has he fully embraced the liberal penumbras and emanations regarding the alleged "right to privacy" in the Conhstitution?

Actually, he is just stating a fact. The law currently recognizes a constitutional right to privacy, sometimes stated as an explicit right (as Sean points out) and sometimes emanating like a gas from the white space between the actual words.

We can debate whether this is a good thing, but Alito was simply reciting the current state of the law.

I mean, honestly: Do you really think that the Constitution should permit the outlawing of contraceptives? Or, for that matter, oral sex?

No.

My problem is that it does, if strictly construed. The solution to this should be the political process, as opposed to judicial activism.

There is no question that state controls on the sale of contraceptives would, in relatively short order, have been cured by the political process. SCOTUS just jumped the gun by intervening with Griswold v. Connecticut. So, they damaged the institution, and saved the residents of Connecticut some time and money having to drive across the border to buy condoms.

I think a lot of libertarian-leaning conservatives, myself included, would support a constitutional amendment that enshrined some kind of right to privacy, exactly because it would operate as a control on the nanny-state impulses of the legislature.

But I don't think it is the prerogative of the Supreme Court to materially amend the Constitution by judicial fiat. The institution, the authority of the judicial system, and the underlying concept of the "rule of law" all suffer when judges are perceived as being "lawless." That's what is wrong with cases like Griswold v. Connecticut or Reynolds v. Sims, even though I agree with the outcome.

The Constitution says what it says.

In fact, the right to be secure from 'unreasonable' searches and seizures was tacked on...thank goodness.

If you want a right to privacy, which is so broad as to be meaningless, you amend the document...you don't pull it out of your butt...er, see it emanating from black letter law.

A 'living constitution' is worse than no constitution at all....it can mean whatever the people in power says it does and still maintain the respect and obedience of the citizens.

The Constitution says what it says.

And, of course, it says stuff in very broad terms, so I'm happy to give the courts a lot of latitude in applying the vague and often self-contradictory terms of the Constitution to particular situations.

I draw the line when judges just start making shit up.

profligatewaste,
I've never see any such petition.

Got a link?

"applying the vague and often self-contradictory terms of the Constitution to particular situations."

Yow! broad maybe but I don't think that they are vague and I'm not sure what you mean by self-contractory terms. Can you elaborate Michael?

I think that politics should be practiced by politicians not judges.

Tob

I'm not sure what you mean by self-contractory terms.

For example, in the First Amendment, there is inherent tension between the Free Exercise Clause and the Non-Establishment Clause. The controversy about educational vouchers that are redeemable at parochial schools reflects this.

For another example, there is inherent tension between the Commerce Clause and the entire rest of the document, which wholeheartedly supports the concept of State Sovereignty. The controversy over the use of federal highway funding to blackmail states into adopting a 55 mph speed limit to conserve gas reflects this.

In real life, judges just have to make some tough decisions.

We'll have to disagree on here, the First Ammendment prevents the Federal government from establishing a National church and interferring in pivate religious practices, vouchers to parochial schools, especially by states, does neither except in penumbras land, which is why a strict constructionist pov is vital in a judge.

The commerce clause interferring with state sovereignty matter I don't get at all. Thats why its there. Otherwise a state could use its sovereignty to deny competing imports from others states.

Judges don't have to make tough decisions, thats the politicians job.

Tob

I mean, honestly: Do you really think that the Constitution should permit the outlawing of contraceptives? Or, for that matter, oral sex?

It does permit these things.

Judges don't have to make tough decisions

Well, Toby, the decisions are easy if everybody agrees with you. Judges don't work in that kind of environment.

It does permit these things.

Dumbest comment of the day (so far).

The Constitution does not "permit" or "prohibit" such activities. The issue is: does the Constitution prohibit a state legislature from criminalizing such conduct?

Under current law, the answer is yes, even though the Constitution is entirely silent on the subject.

New talking points for the left and DNC...

“Publishing pedo fantasy stories about 6 month old babies getting finger fucked is OBSCENE, is over the line, and should be prosecuted to the fullest extent of the law,” posted one user on GFY.com, although YNOT has not yet been able to verify the exact nature of the targeted stories. “I have no sympathy for this site. It should not be protected as free spreech [sic]. The entire premise is to cater to the fantasies of pedos at the most debased and perverted levels imaginable. When you are writing sexually perverse stories describing pornographic acts on infants, toddlers, and children you are generating the same effeect [sic] as if you were publishing pictures of such.”

"Well, Toby, the decisions are easy if everybody agrees with you. Judges don't work in that kind of environment."

No, I made my point poorly I guess. Judges should never make hard decisions, they should make intelligent decisions, that is, informed by case law and argument. What a judge is called to do when interpreting law is to ask if A) the law is constitutional and B) whether the law as executed comports with the intent of the legislature. Any judge who is unwilling to say that a law is bad and stupid but when correctly legisated and executed must be enforced isn't worthy to hold the trust. I don't need a mandarin to decide justice, I need a humble servant of the law.

Hard cases are for the branch of government that I can hold accountable.

Tob

Article is here.

http://www.ynot.com/modules.php?op=modload&name=News&file=news_article&sid=9839&mode=thread&order=0&thold=0

Dumbest comment of the day (so far).

Ace said (emphasis added): "I mean, honestly: Do you really think that the Constitution should permit the outlawing of contraceptives? Or, for that matter, oral sex?"

I said: "It does permit these things."

You, of course, followed up by showing that you're a retard. Retard.

Any judge who is unwilling to say that a law is bad and stupid but when correctly legisated and executed must be enforced isn't worthy to hold the trust. I don't need a mandarin to decide justice, I need a humble servant of the law.

We are on the same page.

I'm just saying that a "bad and stupid" law will inevitably be confronted with a constitutional challenge, and the Constitution is vague enough that some smart lawyer is going to come up with an argument, and a judge is going to have to make a tough decision.

Hence, my preference for literalist judges, because these tough decisions (abortion, redistricting, etc.) really should be thrashed out in the political process.

"Hence, my preference for literalist judges, because these tough decisions (abortion, redistricting, etc.) really should be thrashed out in the political process."

Okay, then we do agree. I'm relieved.

Tob

I said: "It does permit these things."

You're right, someone. I misconstrued your comment and I apologize. You have correctly identified me as the dumbest commenter of the day (for now -- I'm sure I will lose this distinction soon).

"You have correctly identified me as the dumbest commenter of the day"

The night is young.

See, I try to be fair-minded about stuff other than Brewfan being a girly little whore.

From what I saw, Alito did an admirable job of dancing aroud the questions - answering each one, but not giving the Senators the answers they really wanted.

For example, Alito said that he believed in the concept of precedents but that precedent was not an iron-clad lock. He also said, regarding Senator Specter's precious "super precedents" and "super-duper precedents" that he didn't believe in them, thinking that they made the law sound like laundry detergent. He also said there was a right to privacy in the Constitution, but he didn't outline what he thought that right should encompass.

Yeah, he did walk away from his job application statements, but not as far, I think, as some believe he did. He left a great amount of maneuvering room while staking out a pretty solid position.

See, I try to be fair-minded about stuff other than Brewfan being a girly little whore.

You've just added some padding to your lead in 'dumbest comment of the day'

"I mean, honestly: Do you really think that the Constitution should permit the outlawing of contraceptives? Or, for that matter, oral sex?"

Honestly? Yeah. Yeah I do.

I think there shouldn't be very any things at all that the Constitution puts out of the reach of the people. If the people want something put out of their reach, then there's an amendment process to do that very thing. Otherwise, we let the democratic process decide.

That will make ALITO very unpopular with the liberals like TED KENNEDY and AL GORE or the others

"Do you really think that the Constitution should permit the outlawing of contraceptives?" etc...
You just need to outlaw it correctly - do you remember in early '93 when FDA Commissar Dr David Kessler tried to ban breast implants, even for reconstructive surgery after cancer? (He said that in the risk and benefit balance, there was no benefit to outweigh the almost nonexistant risk. Many 'freedom of choice" feminists agreed - maybe you remember the short-lived 'a woman without breasts is still a woman' movement) Or in the early 70s, right after Roe vs Wade, when advocates of Laetrile treatment for cancer asked about a patient's "right to choose" in cancer therapy, and the head of the FDA (I remember his name as Donald Kennedy) said that (in so many words), of course we believe patients should have a choice, provided it's an intelligent choice.
Many lifestyle choices can be defended under the Constitution without inventing rights - many of the rights the Supreme Court invented under 9th amendment's "enumeration" argument blatantly went against what the people had clearly expressed in referenda, etc - for example, banning birth control could be argued as an attempt to force the religious views of some people on others whose religion has long permitted it; and so on.
I think we know that the Libs and Dems are concerned about Federal judges who look at the constitution and the clearly expressed will of the majority of people before deciding a case.
Late, tired, hate my job, apologies for typos.

Ever notice the Donks go crazier when a conservative starts hijacking the language of the left, like the Donks have done with the American language in general?

More power to Alito. He's doing fine, sidestepping all the minefields of most the Dems and the cowpies of Kennedy and Chucky.

The anti-democratic tendencies of judicial review can only be justified if the Constitution means what the framers understood it to mean when adopted, no more and no less. Why is it so hard to accept the idea that the people can adopt laws outlawing things that every state had outlawed when the Constitution was adopted? You want judges to be philosopher kings fine, but that's not the government we established in 1789.