Wednesday, March 15, 2006

Strict Constructionism, My Ass

Why is it so hard for Right Whingers to actually understand their own Constitution?

This case, wherein a law banning the sale of sex toys was upheld, includes this choice quote:

A Hinds County judge ruled in 2003 that state law does not extend the right to privacy to the commercial sale of sexual devices.

The Mississippi high court said there is no fundamental right of access to buy sexual devices.

Who the hell says there has to be a fundamental right to something before people get to do it? Where the hell are the libertarian Republicans (all two of them left uncastrated)?

Haven't these people read the Ninth and Tenth amendments?

  • Ninth Amendment:
    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
  • Tenth 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.

How much clearer can you get? There are rights that aren't listed in the Constitution, which people nevertheless retain.

Strict constructionism is bullshit.


Hyperlexic said...

Not that I'm an expert or anything - but though the 9th is pretty clear that there are other rights, doesn't the 10th amendment say basically that the States have other powers, e.g., other abilities to impinge on rights?

rantingnerd said...

Yes, it does say that the states (and the people) have powers. This is an argument that a lot of gun-control advocates use: states can impose gun-control laws, even where Congress might be limited by the Second Amendment....

Hyperlexic said...

Ok - so, do you agree with this view or not?

rantingnerd said...

Which view? That states can impose more limitations on rights, or that that idea can/should be used to justify gun control laws?

I'm not a lawyer, so I certainly wouldn't take anything I say without a mound of salt, but I think it's quite clear that there are areas of responsibility (e.g. zoning laws) where states should definitely have more power than the federal government. There are other areas (e.g. restrictions on who can vote) that have been explicitly placed under control (or at least supervision) of the federal government, by the 13/14/15/24/26th amendments and by acts of the US Congress and Supreme Court Decisions stemming from them.

It's complicated and messy, and that's why we have courts. (There are a bunch of people, like Tom DeLay, who think -- or claim to think -- that the courts should exist to rubberstamp the actions of the other branches of government. But that's a separate story.)