JDJEDTJR's basic criminal law case out-dated, over-ruled by misreasoned new precedent?
JDJEDTSR is the incarnation of alleged quality combined with quantity in law schools. His Fifth favorite topic, after civil procedure, contracts, torts, and property, is criminal law. JDJEDTJR is the incarnation of law schools regardless of alleged quality. JDJEDTJR's favorite criminal law texts are those by Dresser and the one by Kadish, Criminal Law. Since I could not find online a detailed table of contents, excerpts etc. for the Dresser casebook and outline, but could for the Kadish casebook, I here focus on the Kadish casebook ( Criminal Law and Its Processes: Cases and Materials (Casebook) by Sanford H. Kadish, Stephen J. Schulhofer (Hardcover - April 1, 2001) ( http://www.amazon.com/exec/obidos/tg/detail/-/0735519900/102-1374166-4870552?v=glance ) .
Kadish cites many cases but the most famous case he cites, is, in his section on "THE JUSTIFICATION OF PUNISHMENT-what to punish", Bowers v Hardwick, 1986 in the Supreme Court, in which the Supreme Court ruled that nothing in the constitution protects sodomy. Problem is that in the year 2003, after the Kadish casebook came out in 2001, Bowers v Hardwick was over-ruled by the Supreme Court in an opinion written by Chief Justice Kennedy.
Kennedy's Supreme Court over-ruled Bowers in Lawrence v. Texas, in a decision which gives cause for alarm (please excuse this(?) and subsequent ignorant failures in etiquette of Supreme Court cases) in the sense that it gives rise to the suspicion that economically active elements in the nation will not be able to trust that the courts of the land will show any common sense in the interpretation of written law.
Writing the majority opinion, Kennedy made the following points (paraphrased=P):
1 "We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution"
2P Kennedy cites in his favor a prior Supreme Court case, Griswold, in which a state was prohibited from banning contraception on the grounds such is an intrusion into privacy.
3 "In Eisenstadt v. Baird, 405 U. S. 438 (1972), according to Kennedy, the Court invalidated a law prohibiting the distribution of contraceptives to unmarried persons. The case was decided under the Equal Protection Clause, id., at 454"
4 "lthough the Court (Roe v Wade) held the woman’s rights were not absolute, her right to elect an abortion did have real and substantial protection as an exercise of her liberty under the Due Process Clause"
5 "In Carey v. Population Services Int’l, 431 U. S. 678 (1977), the Court confronted a New York law forbidding sale or distribution of contraceptive devices to persons under 16 years of age. Although there was no single opinion for the Court, the law was invalidated. Both Eisenstadt and Carey, as well as the holding and rationale in Roe, con-firmed that the reasoning of Griswold could not be con-fined to the protection of rights of married adults"
6P The court in Bowers failed to realize it was about liberty in privacy not sodomy specifically
7P sodomy laws have not been directed specifically vs men in this country
8P 19th century sodomy law targeted rapists not consentors
9P there was general condemnation of non procreative sex,
10P prosecutions were infrequent a willing partner's accusation insufficient
11P american laws targetting same sex couples new, did not develop till last third of 20th century
12P same-sex prohibtions ignored or abolished in states lately
13 'These considerations (pat public opinion) do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the crimi-nal law. “Our obligation is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850 (1992).'
14P Burger and white emphasized traditional historic rejection of sodomy
15 "In all events we think that our laws and traditions in the past half century are of most relevance here." (contradicts earlier disavowal of tradition)
16 "These references (?????) show an emerging awareness that liberty gives substan-tial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex."
17 "In 1955 the American Law Institute promulgated the Model Penal Code and made clear that it did not recommend or provide for “criminal penalties for consensual sexual relations conducted in private.” ALI, Model Penal Code §213.2, Comment 2, p. 372 (1980). It justified its decision on three grounds: (1) The prohibitions undermined respect for the law by penalizing conduct many people engaged in; (2) the stat-utes regulated private conduct not harmful to others; and (3) the laws were arbitrarily enforced and thus invited the danger of blackmail."
18 "The sweeping references by Chief Justice Burger to the history of Western civilization and to Judeo-Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction."
19 "The (euro) court held that the (irish) laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v. United King-dom, 45 Eur. Ct. H. R. (1981) ¶52."
20P Now there is little anti sodomite enforcement, or law in states
21 "In Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again con-firmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id., at 851. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows: “These matters, involving the most intimate and per-sonal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amend-ment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the uni-verse, and of the mystery of human life."
22 "The second post-Bowers case of principal relevance is Romer v. Evans, 517 U. S. 620 (1996). There the Court struck down class-based legislation directed at homosexu-als as a violation of the Equal Protection Clause. Romer invalidated an amendment to Colorado’s constitution which named as a solitary class persons who were homo-sexuals, lesbians, or bisexual either by “orientation, con-duct, practices or relationships,” id., at 624 (internal quotation marks omitted), and deprived them of protection under state antidiscrimination laws. We concluded that the provision was “born of animosity toward the class of persons affected” and further that it had no rational rela-tion to a legitimate governmental purpose. Id., at 634."
23P the sodomy convictions harm the convicted
24 "In the United States criticism of Bowers has been substantial and con-tinuing, disapproving of its reasoning in all respects, not just as to its historical assumptions."
25 "The courts of five different States have declined to follow it (bowers) in interpreting provisions in their own state constitutions parallel to the Due Process Clause of the Fourteenth Amendment"
26 "In his dissenting opinion in Bowers JUSTICE STEVENS came to these conclusions: “Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from con-stitutional attack"
27 "Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to pro-duce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment"
28 "The present case does not involve minors. --It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. --It does not involve public conduct or prostitution. --It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter"
29 "--The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosex-ual lifestyle. --The petitioners are entitled to respect for their private lives. --The State cannot demean their exis-tence or control their destiny by making their private sexual conduct a crime. --Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. --The Texas statute furthers no le-gitimate state interest which can justify its intrusion into the personal and private life of the individual"
30 “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Casey, supra, at 847"
Kennedy Contradicts Himself
Kennedy contradicts himself regarding whether public opinion past and present regarding sodomy, should have any bearing on the case. He states,
1 "We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution"
and,
13 'These considerations (past public opinion) do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the crimi-nal law. “Our obligation is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850 (1992).'
Yet at the same time he states,
15 In all events we think that our...traditions in the past half century are of most relevance here. (contradicts earlier disavowal of tradition)
and engages in much dispute as to whether past justices were correct in their asessment that public opinion is now or has in the past been against sodomy, Kennedy taking the position that justices of the past have exaggerated the extent to which society has opposed Sodomy.
Kennedy's main argument defective
Kennedy states,
1 "We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution"
The fourteenth amendment of the constitution states,
Aricle XIV 1868
nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The other references to life, liberty and property in the constitution and the amendments are:
Constitution:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
Amendments:
Article V 1795
nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law;
Aricle XIV 1868
nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The problem with Kennedy's opinion, is, that Kennedy is saying that his opinion is a fourteenth amendment argument; he is basically saying, that the clause that nobody shall be deprived of Liberty without Due Process, means that nobody shall be deprived of liberty, and means that nobody shall be deprived of the liberty to commit sodomy.
Kennedy states that private, consensual, "harmless" activities such as sodomy are constitutionally protected liberties, that the government may not intrude on; yet at thge same time he would not deign to rubber stamp all private consensual activities as rubber-stamped by his Supreme Court, which he uses to rubber-stamp sodomy as a protected liberty.
So, the Supreme Court in this opinion is arrogating the right to decide what liberties are protected by law, and what liberties are not.
The Supreme Court in this decision declares tht the 14th amendment gives it the right, to decide what is liberty.
According to this line of reasoning, Kennedy and his court have the right to decide what property is, and what forms of property are or are not immune to seizure even with due process, because the constitution says no person shall be deprived of property, without due process; and, according to this line of reasoning, Kennedy and his court have the right to decide what life is, and what forms of life are or are not immune to destruction even with due process, because the constitution says no person shall be deprived of life, without due process of law.
According to this line of reasoning, a person cannot be executed, because nobody can be deprived of life without due process, and Kennedy's Supreme Court decides what are the protected forms of life.
According to this line of reasoning, a person cannot be fined, because property cannot be confiscated without due process, and Justice Kennedy decides what is protected property that cannot be seized even with due process, and what is not.
According to this line of reasoning, the prohibition of the deprivation of life liberty and property minus due process, means the Supreme Court decides what is protected liberty a person cannot be deprived of, and what is not protected liberty, and also means that sodomy is a protected liberty.
In other words, it is not possible in the eyes of this court, to deprive persons of certain protected liberties, even in the presence of due process. One could say, Therefore, in the eyes of this court, anything that deprives a person of the protected liberty, is a violation, and therefore, homosexuals cannot be incarcerated, because such incarceration deprives them of the liberty to sodomy that the court has enshrined.
Kennedy Court fails to demonstrate expertise re determining which liberties should be enshrined
The court here is like a twelve year old child, legislating from the bench, twisting the law absurdly, so as to get some loveable gay man she knows off the hook.
The court has in this ruling adjudicated to itself the right to decide what liberties are protected so as to be immune from infringment even in the presence of due process; yet at the same time the court indulges in a merely cursory and flimsy attempt to justify its consecration of sodomy as a protected liberty. The court by listing its reasons for consecrating sodomy, admits that such argument is necessary, but the arguments it proceeds to deliver are merely statements of opinion unsupported by evidence.
Kennedy merely expends a couple of brief paragraphs rattling off his justifications:
28 --"The present case does not involve minors.
--It does not involve persons who might be injured or coerced or who are situated in relationships
where consent might not easily be refused.
--It does not involve public conduct or prostitution.
--It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter"
29 "--The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosex-ual lifestyle.
--The petitioners are entitled to respect for their private lives.
--The State cannot demean their exis-tence or control their destiny by making their private sexual conduct a crime.
--Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.
--The Texas statute furthers no le-gitimate state interest which can justify its intrusion into the personal and private life of the individual"
The court blythely declares that "The Texas statute furthers no le-gitimate state interest which can justify its intrusion into the personal and private life of the individual"; but it gives no evidence to warrant this essential claim. In reality the only method by which claimants such as the sodomite Lawrence in this case can find relief on a constitutional basis, is through the processes required to enact an amendment to the constitution rendering sodomy a protected federal right.
@2005 David Virgil Hobbs
This represents my opinions at the present time, which may not exactly or even remotely coincide with reality
Kadish cites many cases but the most famous case he cites, is, in his section on "THE JUSTIFICATION OF PUNISHMENT-what to punish", Bowers v Hardwick, 1986 in the Supreme Court, in which the Supreme Court ruled that nothing in the constitution protects sodomy. Problem is that in the year 2003, after the Kadish casebook came out in 2001, Bowers v Hardwick was over-ruled by the Supreme Court in an opinion written by Chief Justice Kennedy.
Kennedy's Supreme Court over-ruled Bowers in Lawrence v. Texas, in a decision which gives cause for alarm (please excuse this(?) and subsequent ignorant failures in etiquette of Supreme Court cases) in the sense that it gives rise to the suspicion that economically active elements in the nation will not be able to trust that the courts of the land will show any common sense in the interpretation of written law.
Writing the majority opinion, Kennedy made the following points (paraphrased=P):
1 "We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution"
2P Kennedy cites in his favor a prior Supreme Court case, Griswold, in which a state was prohibited from banning contraception on the grounds such is an intrusion into privacy.
3 "In Eisenstadt v. Baird, 405 U. S. 438 (1972), according to Kennedy, the Court invalidated a law prohibiting the distribution of contraceptives to unmarried persons. The case was decided under the Equal Protection Clause, id., at 454"
4 "lthough the Court (Roe v Wade) held the woman’s rights were not absolute, her right to elect an abortion did have real and substantial protection as an exercise of her liberty under the Due Process Clause"
5 "In Carey v. Population Services Int’l, 431 U. S. 678 (1977), the Court confronted a New York law forbidding sale or distribution of contraceptive devices to persons under 16 years of age. Although there was no single opinion for the Court, the law was invalidated. Both Eisenstadt and Carey, as well as the holding and rationale in Roe, con-firmed that the reasoning of Griswold could not be con-fined to the protection of rights of married adults"
6P The court in Bowers failed to realize it was about liberty in privacy not sodomy specifically
7P sodomy laws have not been directed specifically vs men in this country
8P 19th century sodomy law targeted rapists not consentors
9P there was general condemnation of non procreative sex,
10P prosecutions were infrequent a willing partner's accusation insufficient
11P american laws targetting same sex couples new, did not develop till last third of 20th century
12P same-sex prohibtions ignored or abolished in states lately
13 'These considerations (pat public opinion) do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the crimi-nal law. “Our obligation is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850 (1992).'
14P Burger and white emphasized traditional historic rejection of sodomy
15 "In all events we think that our laws and traditions in the past half century are of most relevance here." (contradicts earlier disavowal of tradition)
16 "These references (?????) show an emerging awareness that liberty gives substan-tial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex."
17 "In 1955 the American Law Institute promulgated the Model Penal Code and made clear that it did not recommend or provide for “criminal penalties for consensual sexual relations conducted in private.” ALI, Model Penal Code §213.2, Comment 2, p. 372 (1980). It justified its decision on three grounds: (1) The prohibitions undermined respect for the law by penalizing conduct many people engaged in; (2) the stat-utes regulated private conduct not harmful to others; and (3) the laws were arbitrarily enforced and thus invited the danger of blackmail."
18 "The sweeping references by Chief Justice Burger to the history of Western civilization and to Judeo-Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction."
19 "The (euro) court held that the (irish) laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v. United King-dom, 45 Eur. Ct. H. R. (1981) ¶52."
20P Now there is little anti sodomite enforcement, or law in states
21 "In Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again con-firmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id., at 851. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows: “These matters, involving the most intimate and per-sonal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amend-ment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the uni-verse, and of the mystery of human life."
22 "The second post-Bowers case of principal relevance is Romer v. Evans, 517 U. S. 620 (1996). There the Court struck down class-based legislation directed at homosexu-als as a violation of the Equal Protection Clause. Romer invalidated an amendment to Colorado’s constitution which named as a solitary class persons who were homo-sexuals, lesbians, or bisexual either by “orientation, con-duct, practices or relationships,” id., at 624 (internal quotation marks omitted), and deprived them of protection under state antidiscrimination laws. We concluded that the provision was “born of animosity toward the class of persons affected” and further that it had no rational rela-tion to a legitimate governmental purpose. Id., at 634."
23P the sodomy convictions harm the convicted
24 "In the United States criticism of Bowers has been substantial and con-tinuing, disapproving of its reasoning in all respects, not just as to its historical assumptions."
25 "The courts of five different States have declined to follow it (bowers) in interpreting provisions in their own state constitutions parallel to the Due Process Clause of the Fourteenth Amendment"
26 "In his dissenting opinion in Bowers JUSTICE STEVENS came to these conclusions: “Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from con-stitutional attack"
27 "Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to pro-duce offspring, are a form of “liberty” protected by the Due Process Clause of the Fourteenth Amendment"
28 "The present case does not involve minors. --It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. --It does not involve public conduct or prostitution. --It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter"
29 "--The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosex-ual lifestyle. --The petitioners are entitled to respect for their private lives. --The State cannot demean their exis-tence or control their destiny by making their private sexual conduct a crime. --Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. --The Texas statute furthers no le-gitimate state interest which can justify its intrusion into the personal and private life of the individual"
30 “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Casey, supra, at 847"
Kennedy Contradicts Himself
Kennedy contradicts himself regarding whether public opinion past and present regarding sodomy, should have any bearing on the case. He states,
1 "We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution"
and,
13 'These considerations (past public opinion) do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the crimi-nal law. “Our obligation is to define the liberty of all, not to mandate our own moral code.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 850 (1992).'
Yet at the same time he states,
15 In all events we think that our...traditions in the past half century are of most relevance here. (contradicts earlier disavowal of tradition)
and engages in much dispute as to whether past justices were correct in their asessment that public opinion is now or has in the past been against sodomy, Kennedy taking the position that justices of the past have exaggerated the extent to which society has opposed Sodomy.
Kennedy's main argument defective
Kennedy states,
1 "We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution"
The fourteenth amendment of the constitution states,
Aricle XIV 1868
nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The other references to life, liberty and property in the constitution and the amendments are:
Constitution:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
Amendments:
Article V 1795
nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law;
Aricle XIV 1868
nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The problem with Kennedy's opinion, is, that Kennedy is saying that his opinion is a fourteenth amendment argument; he is basically saying, that the clause that nobody shall be deprived of Liberty without Due Process, means that nobody shall be deprived of liberty, and means that nobody shall be deprived of the liberty to commit sodomy.
Kennedy states that private, consensual, "harmless" activities such as sodomy are constitutionally protected liberties, that the government may not intrude on; yet at thge same time he would not deign to rubber stamp all private consensual activities as rubber-stamped by his Supreme Court, which he uses to rubber-stamp sodomy as a protected liberty.
So, the Supreme Court in this opinion is arrogating the right to decide what liberties are protected by law, and what liberties are not.
The Supreme Court in this decision declares tht the 14th amendment gives it the right, to decide what is liberty.
According to this line of reasoning, Kennedy and his court have the right to decide what property is, and what forms of property are or are not immune to seizure even with due process, because the constitution says no person shall be deprived of property, without due process; and, according to this line of reasoning, Kennedy and his court have the right to decide what life is, and what forms of life are or are not immune to destruction even with due process, because the constitution says no person shall be deprived of life, without due process of law.
According to this line of reasoning, a person cannot be executed, because nobody can be deprived of life without due process, and Kennedy's Supreme Court decides what are the protected forms of life.
According to this line of reasoning, a person cannot be fined, because property cannot be confiscated without due process, and Justice Kennedy decides what is protected property that cannot be seized even with due process, and what is not.
According to this line of reasoning, the prohibition of the deprivation of life liberty and property minus due process, means the Supreme Court decides what is protected liberty a person cannot be deprived of, and what is not protected liberty, and also means that sodomy is a protected liberty.
In other words, it is not possible in the eyes of this court, to deprive persons of certain protected liberties, even in the presence of due process. One could say, Therefore, in the eyes of this court, anything that deprives a person of the protected liberty, is a violation, and therefore, homosexuals cannot be incarcerated, because such incarceration deprives them of the liberty to sodomy that the court has enshrined.
Kennedy Court fails to demonstrate expertise re determining which liberties should be enshrined
The court here is like a twelve year old child, legislating from the bench, twisting the law absurdly, so as to get some loveable gay man she knows off the hook.
The court has in this ruling adjudicated to itself the right to decide what liberties are protected so as to be immune from infringment even in the presence of due process; yet at the same time the court indulges in a merely cursory and flimsy attempt to justify its consecration of sodomy as a protected liberty. The court by listing its reasons for consecrating sodomy, admits that such argument is necessary, but the arguments it proceeds to deliver are merely statements of opinion unsupported by evidence.
Kennedy merely expends a couple of brief paragraphs rattling off his justifications:
28 --"The present case does not involve minors.
--It does not involve persons who might be injured or coerced or who are situated in relationships
where consent might not easily be refused.
--It does not involve public conduct or prostitution.
--It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter"
29 "--The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosex-ual lifestyle.
--The petitioners are entitled to respect for their private lives.
--The State cannot demean their exis-tence or control their destiny by making their private sexual conduct a crime.
--Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.
--The Texas statute furthers no le-gitimate state interest which can justify its intrusion into the personal and private life of the individual"
The court blythely declares that "The Texas statute furthers no le-gitimate state interest which can justify its intrusion into the personal and private life of the individual"; but it gives no evidence to warrant this essential claim. In reality the only method by which claimants such as the sodomite Lawrence in this case can find relief on a constitutional basis, is through the processes required to enact an amendment to the constitution rendering sodomy a protected federal right.
@2005 David Virgil Hobbs
This represents my opinions at the present time, which may not exactly or even remotely coincide with reality
posted by David Virgil at 11:58 AM
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