Invented Constitutional "Rights"

[Vort]

If you had your way, how would this be legislated?

I don't know. Maybe I would return to legislation of early in the previous century. Maybe I wouldn't have legislation on the topic at all.

Saying that something is "not a right" doesn't necessarily mean I want to legislate it. You have no right to a chocolate ice cream cone, but I feel no compulsion to make laws about who may or may not eat chocolate ice cream cones.

[jerome1232]

Looking forward to it.

I have a feeling my point will become fairly obvious.

Completly offtopic, everytime I read your posts, your font triggers the urge to use a tiny robotic voice in my head. I guess it looks to much like a system, terminal font to me.

[jerome1232]

--snip--

Edited April 19, 2012 by jerome1232

[Klein_Helmer]

I do not believe pornography is an inherent right as a part of free speech.

I don't know. Maybe I would return to legislation of early in the previous century. Maybe I wouldn't have legislation on the topic at all.

Saying that something is "not a right" doesn't necessarily mean I want to legislate it.

Will you please clarify your position here.

Are you saying that you believe the creation of pornography should not be considered a component of free speech, and a right, but it should also not be prohibited?

If people are not disallowed to make it, would not their making it be an exercise of their right to do so?

[Klein_Helmer]

Completly offtopic, everytime I read your posts, your font triggers the urge to use a tiny robotic voice in my head. I guess it looks to much like a system, terminal font to me.

Haha.

I actually sound more like Enrico Caruso...

I wish.

[annewandering]

The problem I see with porn is definition and acceptance. Is the statue Apollo porn? Is Venus porn? It is easy to argue that they are.

Much of porn is obvious, at least to people who dont like it. Ok maybe its obvious to those who use it since they pick it out deliberately.

Do we have the right, by the Constitution, to deny those who want it? These questions have been argued over and over for decades and still we have no answer that most people can, and will, agree on.

Gay marriage and abortion are essentially the same situation. I dont think we will ever reach an agreement on any of these issues.

[Dravin]

If people are not disallowed to make it, would not their making it be an exercise of their right to do so?

Nope. If something is a right it means it cannot/should not be restricted. That something is not restricted does not make it a right. Consider a road without a speed limit (or any other laws stipulating speed restrictions), I am not restricted from going as fast as I want down the road. This does not mean I have a right to go as fast as I want down the road, even though I am free to do so. If a law was passed that put a speed limit of 55 mph on the road my right to go down the road as fast as I want is not being violated because I had no such right. It's a little confusing because in speech people will talk about themselves having a right to do anything that isn't illegal (I have a right to park here, there isn't any laws against it!), and indeed that right does exist for my going down that road. Once it becomes illegal I can no longer freely do it and my rights are not being violated as would be the case if I did indeed have a right to go whatever speed I wanted down that road.

Vort's reasoning may differ, but the above is one way in which something can be unrestricted but not a right.

Edited April 19, 2012 by Dravin

[Klein_Helmer]

Nope. If something is a right it means it can/should not be restricted...

Consider a road without a speed limit... I am not restricted from going as fast as I want down the road. This does not mean I have a right to go as fast as I want down the road.

This example does not seem to work.

How is it you imagine you would not have the legal right to go as fast as you wanted were it not prohibited by law?

If a law was passed that put a speed limit of 55 mph on the road my right to go down the road as fast as I want is not being violated.

No, it is not being violated, it is being taken away.

[Dravin]

This example does not seem to work.

How is it you imagine you would not have the legal right to go as fast as you wanted were it not prohibited by law?

You're talking about being free to engage in behavior that is not illegal. That is different than a right to go down that road at any speed I may wish. The difference within the US between being free to do something that isn't a right and having a right to do something is that you can't pass* a law preventing the latter but you can pass a law preventing the former.

*Well technically you can but it can be challenged and overturned.

No, it is not being violated, it is being taken away.

If I have a right to do something and you pass a law telling me I can't do it, you are violating my rights (well, maybe you have to enforce it first). If passing a law meant you didn't have a right to what is being prevented it would be impossible to legislatively violate rights. Within the US system this is certainly not the case.

Edited April 19, 2012 by Dravin

[Klein_Helmer]

You're talking about the right to engage in behavior that is not illegal. That is different then a right to go down that road at any speed I may wish.

In the case of your example, what is the distinction?

If I have a right to do something and you pass a law telling me I can't do it, you are violating my rights. If passing a law meant you didn't have a right to what is being prevented it would be impossible to legislatively violate rights.

No.

If I am the state, and you are my citizen, and I enact a law prohibiting an activity to which you believe you have a right, I have not violated said right, I have taken it away.

It is impossible to legislatively violate rights, only to grant them and take them away.

e.g. I believe that women and minorities should have the right to vote, which they now do. However, in recent decades, they did not have such a right. Would you dispute that?

Edited April 19, 2012 by Klein_Helmer

[Blackmarch]

deleted

[Klein_Helmer]

Dravin, perhaps I am having a major derp moment here.

Would you consider framing your idea with another example, one that could be observed in the United States? ie, Could you describe an activity which is not legally forbidden, but is also not a right? I think the fact that no such roads exist is causing me some difficulty.

Edited April 19, 2012 by Klein_Helmer

[Dravin]

In the case of your example, what is the distinction?

The difference within the US between being free to do something that isn't a right and having a right to do something is that you can't pass* a law preventing the latter but you can pass a law preventing the former.

*Well, legislators will do what they do, but it can be struck down and voided.

If I am the state, and you are my citizen, and I enact a law prohibiting an activity to which you believe you have a right, I have not violated said right, I have taken it away.

If you are the element of the state which determines rights (if going with the practical definition) then you cannot violate rights, otherwise you can. The state of Indiana does not have to authority to make it illegal to be LDS. Elements of the state (the Federal Government in this case) have determined I have a right which Indiana cannot violate. They also have the power and authority to guarantee that right from Indiana's infringement.

It is impossible to legislatively violate rights, only to grant them and take them away.

This is demonstrable false within the US considering laws have been struck down as being unconstitutional and a violation of rights.

e.g. I believe that women and minorities should have the right to vote, which they now do. However, in recent decades, they did not have such a right. Would you dispute that?

Depends which concept of rights we are working with, if the practical no I would not dispute it. Here is the thing though, if Gary Indiana passed a law stripping all the minorities and blacks within its jurisdiction of the right to vote the law would be struck down by the US Supreme Court as a violation of their rights and unconstitutional. This according to you is not possible.

Edited April 19, 2012 by Dravin

[Klein_Helmer]

Thank you, this is interesting; and I am glad to see that the forum has been moving along at a good clip for the last few days.

Unfortunately, I have to, for the time being, take my leave (I should probably get some work done today).

I will be sure to address your response as soon as possible.

[Timpman]

Here’s my point: Throughout the history of the United State, many laws have been established based on the morals of the people. That a purely secular argument is necessary to have a law is a false perception of our time. As more and more people give in to the decayed views of the radical activists, we will get what we deserve.

“And if the time comes that the voice of the people doth choose iniquity, then is the time that the judgments of God will come upon you; yea, then is the time he will visit you with great destruction even as he has hitherto visited this land.” –Mosiah 2:27

We are not denying anyone any rights or protections by withholding the status of marriage. It is they (the activists) who seek to FORCE us (me and like-minded people) to recognize unholy unions as legitimate. I don’t seek to tell them how to act, and they can’t force me to condone how they act.

[Dravin]

Dravin, perhaps I am having a major derp moment here.

Would you consider framing your idea with another example, one that could be observed in the United States? ie, Could you describe an activity which is not legally forbidden, but is also not a right? I think the fact that no such roads exist is causing me some difficulty.

If you can forgive another automotive example consider the case of the use of engine brakes on large trucks. Where otherwise not specified as illegal one is free to use one's engine brakes, however quite a few local ordinances prevent their use within city limits because of the noise they make. So we're not even talking about one year it's cool and the next it's illegal, we're talking about you can travel a relatively short distance and go from legal to illegal and back again. Now if one had a right to use engine brakes as recognized by the elements of society which determines rights (aka the courts, most specifically the Supreme Court*) those local ordinances would be illegal, they would be a violation of the truck driver's right to use engine brakes.

Now I do see how you can see this as an artificial distinction but it has practical application. For instance in the US a set-up following from what Vort proposes would be something like engine breaks. Local governments could prohibit it, even if they do not desire to normally but just in situations they consider egregious (for example virtual child pornography) but the default status would be unrestricted.

*In the US.

Edited April 19, 2012 by Dravin

[Just_A_Guy]

A point of order:

2. Does anyone here not believe porn is protected speech?

Pornography is not constitutionally protected speech.

Now, legally speaking, you can quibble over whether something that is sexually explicit is also pornographic; and that's what happened in the simulated child "porn" case alluded to earlier where a federal statute was struck down on free expression grounds. But having conceded that something is actually pornographic, you are also conceding as a matter of law that it is not constitutionally protected.

Whether a given locality chooses to ban such depictions or not, is a separate issue.

Edited April 19, 2012 by Just_A_Guy

[skippy740]

"A Fundamental Right is a right in which all people can simultaneously claim without forcing someone to serve their needs." - Joel Skousen

[MarginOfError]

A point of order:

Pornography is not constitutionally protected speech.

Now, legally speaking, you can quibble over whether something that is sexually explicit is also pornographic; and that's what happened in the simulated child "porn" case alluded to earlier where a federal statute was struck down on free expression grounds. But having conceded that something is actually pornographic, you are also conceding as a matter of law that it is not constitutionally protected.

Whether a given locality chooses to ban such depictions or not, is a separate issue.

I'll have to yield to your expertise, but I was under the impression that the pornography itself is protected speech, but that didn't mean that a pornographer was free to exhibit that speech in any forum, any time, anywhere. (Similar to cities being able to move protests away from high traffic areas).

[PeterVenkman]

PeterVenkman wrote:

I am not a Constitutional scholar, but I understand it some. I don't know what arguments PeterVenkman made, but here's what I think:

1. Any "right to marriage under equal protection and due process" is make believe. What protections are people not getting by being unmarried? Same with due process.

2. How is marriage a form of expression? I think it's ludicrous to think the authors of the Bill of Rights intended such applications. Does anyone here also believe porn is protected speech?

3. Why must there be a purely secular justification? I reject that notion. Laws are fundamentally based on morals.

4. No thoughts on that.

We will take them one at a time shall we?

1. Right to marriage under Equal Protection and Due Process -

Most rights recognized by the United States Constitution are deemed to be "fundamental rights" under the Incorporation Doctrine of the 14th Amendment. As rights incorporated into the 14th amendment guarantee of equal protection, all fundamental rights are subject to strict scrutiny. In other words, to deny a fundamental right to a group of people based on a classification that makes them different from other people, you have to prove that such classification meets a compelling government (not religious) interest, is narrowly tailored to meet its goals, and is the least restrictive means to achieve such a goal.

Privacy is a right that derives from the 4th amendment and it has been deemed to be a fundamental right. Marriage is a part of the right to privacy...and marriage itself has been determined to be a fundamental right by the following Supreme Court cases:

Loving v. Virginia (1967)

Zablocki v. Wisconsin (1968)

Turner v. Safley (1987)

As well as a number of appellate court cases. In fact, the courts seem to side pretty heavily on marriage equality precisely because it cannot rest its justifications on religious principles.

You say marriage is not a fundamental right protected by the 14th amendment because single people are not losing out on any protections, but that misstates the law and the nature of the right. Marriage is a fundamental right in that people shall have the right to choose who they wish to marry. This was the logic of the decision in Loving v. Virginia and Turner v. Safely. Now, I'm sure someone like Vort will say this logic justifies child abuse because someone may choose to marry a 5 year old, but that totally ignores all of those other laws about the age of consent and the age at which the law determines that you are capable of choosing.

2. How is marriage a form of expression?

Well, marriage is a public declaration of one's love and commitment for another. A marriage is a form of expression because it is the legal codification of a relationship, which is a form of speech. I am going to post my original comments about this from 2008 since you have asked for them, so you can read more about the 1st amendment argument in my second post.

3. Why must there be a secular justification? Laws are based on morals!

Yes, laws are based on morals, but laws are NOT based on religious morals. This is a broader philosophical point that religion does not own ethics. It is not only possible but desirable to create an ethics out of logic, because logic is the only fair way to make sure we are not forcing each other to accept our very different beliefs. For example, if you want to make abortion illegal, you cannot stand in congress and say abortion should be illegal because god said so. Instead, you have to make arguments that can rationally relate to anyone of any religion (you know, like a fetus is a person, so killing a fetus is the equivalent of murder). If a religious ethic cannot be reduced to non-religious justifications for its existence, then it should not be codified as law pursuant to the second amendment separation of church and state. We can talk a lot more about this if you want, but it really boils down to the fact that you can have morals without religion.

4. No thoughts on heteronormativity

You should check it out. May present you with a different perspective. I can recommend some texts for you if you are interested. Below find my post from 2008 that makes some of these arguments.

By the way, pornography IS protected speech...OBSCENITY is not protected speech, but even then you would be hard pressed to find any good examples of the US Supreme Court banning speech for being obscene. It must shock the conscience on both a local and national level to meet that test, which is very hard. I think child porn is the only thing that currently fits this framework.

[PeterVenkman]

My post from 2008:

Whether you base the decision on the constitutional guarantee of due process of the law or whether you base the decision on equal protection grounds, they both come out allowing gay people to marry.

I'm even kind of persuaded by this argument:

Relationships come in all types. Some of them are secret like Romeo and Juliet. Marriage is different from a "relationship" because marriage is a public expression of love for another person, and there is no expression more public than a legal codification. The First Amendment guarantees the freedom to publicly express ourselves how we see fit. Since the institution of marriage is a public statement of love, homosexuals have the right to publicly express that love under the First Amendment. It's a unique argument, but it intruiges me.

When you get to the legal details of gay marriage, it doesn't even matter what suspect class homosexuality falls into. The laws are usually written in such an exclusive way that courts have no choice but to strike them down. In the case of Proposition 8, to vote for a constitutional amendment over the court's order is to use emotion against reason. It is akin to a national vote to amend the constitution to reinstate slavery. Legally, it defies reason. Unfortunately, emotions on gay marriage have not yet reversed like emotions on slavery. Hence, we have ballot initiatives like Prop. 8.

This is not to say that we shouldn't be careful. Some cases, such as Hernandez v. Robles, painted marriage as a way to reign in straight male tricksters who would otherwise be fleeing children. Keeping men from wandering is apparently the real reason why the institution of marriage is so important (according to these judges).

Here are some other arguments I have been kicking around:

1. Protect the Institution of Marriage - Those who oppose gay marriage argue that it erodes the institution of marriage and the heterosexual meaning it carries. I say that denying homosexuals the right to marry itself undermines the institution of marriage by refusing admittance for people who feel the same love and compassion. I will take this argument a step further to say that this problem is rooted in the difference between state marriage and religious marriage. As a religious artifact, marriage can mean whatever the particular church defines it as. But, as a state sanctioned relationship, marriage must be equal for everyone. If some people can't get married because of who they choose to form relationships with, then no one should be able to get legally married. The state should only issue civil unions, and leave the whole "marriage" business to religion.

2. Biotechnology Solves Everything - I read an article a few months ago which stated that it is now possible to implant a womb into a man, grow a fetus to maturity, and give cesarian birth. Oh wait, did I mention that the fetus is actually a human being constructed from the DNA of both men? Literally, two men (and two women) can now have babies! Ok, it's probably not ready yet, but I think this gets to one of the common concerns of critics of gay marriage. If it is now technologically possible to add more humans to the pool regardless of what each partner has under their zipper, then what's the big deal?

I suspect that critics will say, "It's not the fact that gay people can't have children, it is that the most healthy way to raise a child is in an environment with diverse genders such as a mommy and a daddy." There are so many flaws with this argument that they are hard to count. First, single parents don't have this diversity and we don't take their kids away. Second, it is empirically disproven. We live in 2008, and there are thousands of healthy adults that were raised by gay parents who lead happy productive lives. I saw the Birdcage. That guy didn't seem too imbalanced. Third, this argument plays into gender stereotypes. It implicitly sends the message that children need to be raised by a father and a mother so that they can absorb how the man acts masculine and how the woman acts feminine.

3. Post-Structuralism - I don't know who came up with this whole "protect the meaning of marriage" thing anyway. Words don't have intrinsic meanings. That is why poetry works. That is why literature excites us. That is why the game of telephone is so much fun. Words (also known as signifiers) are not intrinsically tied to what they represent (also known as the signified). Structuralists argued that we understand the meanings of words through relationality. I know what a tree is because I know what isn't a tree. Structuralists argued that there was one word that was cosmically tied to its representation and everything else fell into place from that foundational brick. I can say with confidence that the "transcendental signifier" is not "MARRIAGE". It's GOD. But even the structuralists were proved wrong and we now believe all language is relational. How does this relate to marriage?

Marriage means whatever you want it to mean. It does not undermine the meaning of marriage to allow others to interpret it differently, since the meaning of marriage is something that is internalized differently by everyone.

4. Fundamental Right - The United States Supreme Court uses different levels of scrutiny when deciding whether or not to overturn laws. The Court is toughest on laws that only relate to a suspect class (such as race), while it is much more lenient on laws of general applicability. The level of scrutiny the court uses is determined by either (1) the identity of the person challenging the law or (2) the importance of the right at issue. People challenge laws because they think those laws infringe on our rights. If a law infringes a right that is fundamental, then the court will use the highest level of scrutiny. If the law infringes a right that is not fundamental, the court will be more lenient. Many heterosexuals wouldn't even skip a heartbeat to tell you that marriage is a fundamental right. In other words, I have a fundamental right to get married. If this is true, then the court has to examine marriage laws with the highest level of scrutiny and make sure everyone has equal access. After all, if the right is fundamental, then everyone deserves it. Ultimately, marriage is a fundamental right, and therefore, it is subject to strict scrutiny. If the court examines any law restricting marriage to a heterosexual union under strict scrutiny, that law will be struck down every single time because it overtly violates equal protection.

Again, voting for a constitutional amendment against gay marriage is like saying all of this critical thought on the issue is irrelevant. It appeals to people's emotions. Unfortunately, I believe it capitalizes on the abject. People are personally grossed out by homosexual acts, and therefore they demonize them and try to get them as far away as possible. It's the same way we treat our poop (and it's a reason we don't think about converting it into electricity). For the love of our transcendental signifier, please don't vote for Proposition 8.

Ultimately, I hope it will not pass. Not only is this a general election with a lot more people voting, but the constitutional amendment requires a much larger majority to actually pass than a referendum statute. California already passed the statute, it was overturned by the court, and how California voters have to clear a very high hurdle to amend the Constitution. My hope is that it aint gonna happen.

EDIT: It happened. Although even that has been overturned by the courts.

Edited April 19, 2012 by PeterVenkman

[Timpman]

PeterVenkman, do you really believe in modern prophets?

[Timpman]

You certainly have the right to believe as you wish, but if you actively campaign for same-sex marriage, you could face church discipline.

[Timpman]

I think the current debate over same-sex marriage is much like the one over the Equal Rights Amendment:

7. Why is the ERA primarily a moral question?

Court and administrative interpretations of the ERA could endanger time-honored moral values by challenging laws that have safeguarded the family and afforded women necessary protections and exemptions.

9. What would be the impact of the ERA on homosexual marriages?

Constitutional authorities indicate that passage of the ERA could extend legal protection to same-sex lesbian and homosexual marriages, giving legal sanction to the rearing of children in such homes.

17. Does the Church’s opposition to the ERA violate the First Amendment doctrine of separation of church and state?

No. Churches have a responsibility and a right to speak out on moral issues. The Constitution neither states nor implies that churches shall not involve themselves in moral issues pertaining to government, only that government shall not establish a religion or prohibit the exercise of religion and free speech.

20. Is favoring the ERA grounds for excommunication?

No. Contrary to news reports, Church membership has neither been threatened nor denied because of agreement with the proposed amendment. However, there is a fundamental difference between speaking in favor of the ERA on the basis of its merits on the one hand, and, on the other, ridiculing the Church and its leaders and trying to harm the institution and frustrate its work.

The Church and the Proposed Equal Rights Amendment: A Moral Issue - Ensign Mar. 1980 - ensign

[PeterVenkman]

PeterVenkman, do you really believe in modern prophets?

You started this thread by quoting me from another thread. You asked for me to break down the arguments I presented 4 years ago and I have done so. I hope that you will actually think about the positions I've laid out and respond to those positions, rather than investigating my authenticity. In other words, I'm not sure why this question is relevant.

It's not that I'm unwilling to answer the question, I just don't know what you mean. Do I believe that there are some selectively chosen individuals that commune with god on a daily basis? Do I believe that there are individuals that guide and enhance spiritual understanding? Do I believe that there are people with a special access to "truth" that others don't have? These are all very different questions.

You certainly have the right to believe as you wish, but if you actively campaign for same-sex marriage, you could face church discipline.

What about all of those other people at Mormons for Marriage

The mormon church is very large, and only some actively participate on this website. It may not be easy to accept, but there is a growing portion of the LDS community that feels like I do about gay marriage. So if there is going to be discipline for reading/thinking, then I'm not going to be the only one getting it.

Other than that, I'd have to say that if I'm ever going to be subject to discipline by the church, my philosophical beliefs about homosexuality will probably take a backseat to other transgressions.

As far as your ERA post is concerned, I support an amendment that protects people from discrimination on the basis of sex. It's a good thing we have the 14th amendment and 5th amendment since the ERA didn't pass. Not sure why it relates to constitutional law about the issue of marriage though.