From: owner-fegmaniax-digest@smoe.org (fegmaniax-digest) To: fegmaniax-digest@smoe.org Subject: fegmaniax-digest V12 #251 Reply-To: fegmaniax@smoe.org Sender: owner-fegmaniax-digest@smoe.org Errors-To: owner-fegmaniax-digest@smoe.org Precedence: bulk fegmaniax-digest Friday, July 4 2003 Volume 12 : Number 251 Today's Subjects: ----------------- RE: Try Apathy [Aaron Mandel ] RE: Try Apathy [FSThomas ] RE: Try Apathy [FSThomas ] Oh, I almost forgot... [Eb ] RE: Try Apathy [Capuchin ] RE: Try Apathy [FSThomas ] Re: [Ebmaniax] Kidneys a go-go [brian@lazerlove5.com] Re: [Ebmaniax] Kidneys a go-go ["Jason R. Thornton" ] Re: [Ebmaniax] Kidneys a go-go [Eb ] Re: favourite lyrics [grutness@surf4nix.com (James Dignan)] re: Power nipples [Jeff Dwarf ] Privacy "rights" (was "Try Apathy") [Ed ] The Kuna Tree, The Kuna Tree ["The Mammal Brain" ] Ou sont les neiges de l'antan? Ici! [grutness@surf4nix.com (James Dignan)] Re: favorite lyrics [Michael R Godwin ] Re: favorite lyrics [Michael R Godwin ] Re: Privacy "rights" (was "Try Apathy") [steve ] Re: Privacy "rights" (was "Try Apathy") [Ed ] ---------------------------------------------------------------------- Date: Thu, 3 Jul 2003 16:28:17 -0400 (EDT) From: Aaron Mandel Subject: RE: Try Apathy On Thu, 3 Jul 2003, FSThomas wrote: > I did a search for the word "privacy" in both the Constitution and the > Bill of Rights. It doesn't come up once. Where's the "right to > privacy" defined in the Constitution? Is it broadly included under > protection from unlawful search? (This is a genuine question and not > sarcastic baiting...I honestly don't see it clearly defined anywhere.) Read the opinion itself! I wasn't sure about that either (though I don't find "it's not printed in the Constitution" a very compelling argument -- hundreds of years of Supreme Court precedent that aren't themselves part of the Constitution are weighed in the SC's decisions too) but on the very first page of Lawrence v. Texas it says the argument is that Texas's law deprived people of liberty without due process (amendment V). I believe this "right to privacy" stuff is just *shorthand* for referring to previous court opinions where exactly what it meant to take away "liberty" was narrowed down. a ------------------------------ Date: Thu, 03 Jul 2003 16:33:50 -0400 From: FSThomas Subject: RE: Try Apathy At 04:28 PM 7/3/2003 -0400, Aaron Mandel wrote: >... the very >first page of Lawrence v. Texas it says the argument is that Texas's law >deprived people of liberty without due process (amendment V). I believe >this "right to privacy" stuff is just *shorthand* for referring to >previous court opinions where exactly what it meant to take away "liberty" >was narrowed down. I wouldn't be surprised if that were the case; though I'm not really sure how the guarantee of due process is translated into a right to privacy. - -f. ------------------------------ Date: Thu, 03 Jul 2003 16:40:39 -0400 From: FSThomas Subject: RE: Try Apathy At 04:33 PM 7/3/2003 -0400, FSThomas wrote: >At 04:28 PM 7/3/2003 -0400, Aaron Mandel wrote: >>... the very >>first page of Lawrence v. Texas it says the argument is that Texas's law >>deprived people of liberty without due process (amendment V). I believe >>this "right to privacy" stuff is just *shorthand* for referring to >>previous court opinions where exactly what it meant to take away "liberty" >>was narrowed down. > >I wouldn't be surprised if that were the case; though I'm not really sure >how the guarantee of due process is translated into a right to privacy. Further to that point: "That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the new demands of society. Thus, in very early times, the law gave a remedy only for physical interference with life and property, for trespasses vi et armis. Then the "right to life" served only to protect the subject from battery in its various forms; liberty meant freedom from actual restraint; and the right to property secured to the individual his lands and his cattle. Later, there came a recognition of man's spiritual nature, of his feelings and his intellect. Gradually the scope of these legal rights broadened; and now the right to life has come to mean the right to enjoy life, -- the right to be let alone; the right to liberty secures the exercise of extensive civil privileges; and the term "property" has grown to comprise every form of possession -- intangible, as well as tangible." "The Right To Privacy" Warren and Brandeis Harvard Law Review 15 December, 1895 (http://www.lawrence.edu/fac/boardmaw/Privacy_brand_warr2.html) ------------------------------ Date: Thu, 3 Jul 2003 13:44:07 -0700 From: Eb Subject: Oh, I almost forgot... ...the most Robyn-esque detail of the morning's activities. I had two radiologist guys working on me -- both named Steve. If someone wants to write a song about this, that's ok with me. Eb ------------------------------ Date: Thu, 3 Jul 2003 13:46:29 -0700 (PDT) From: Capuchin Subject: RE: Try Apathy On Thu, 3 Jul 2003, FSThomas wrote: > At 12:40 PM 7/3/2003 -0700, Capuchin wrote: > >...if it weren't for more > >flexible rationale on the part of the courts, folks like Scalia would > >dominate and it would be nearly impossible for new ideas and morals to > >take their place in government. The old way would be the only way. > > Not true. The secondary opinion (equal protection) would then become > the leading opinion. Not quite. Remember that O'Connor rebuked the Texas law on equal protection grounds, but upheld the Georgia law (or was it Alabama) because it outlawed sodomy across the board, regardless of who participated. So you could still outlaw sodomy and only enforce it against homosexuals. A "selective prosecution" claim would be very difficult in such a private matter. But just as important, we wouldn't even have equal protection if it weren't for an illegal session of Congress in which the ten southern states were locked out of session and the 13th and 14th amendments were passed. Sweeping political rights could never have been guaranteed without that kind of unconstitutional action. See also the Civil Rights Act. Strict Constitutionalism is nothing more or less than social conservatism with the force of law and bureaucracy. > I did a search for the word "privacy" in both the Constitution and the > Bill of Rights. It doesn't come up once. Where's the "right to > privacy" defined in the Constitution? Is it broadly included under > protection from unlawful search? (This is a genuine question and not > sarcastic baiting...I honestly don't see it clearly defined anywhere.) Yeah, it's pretty much all 4th amendment... to be "the right of the people to be secure in their persons, houses, papers and effects". That's a great example where "strict interpretation" just isn't possible and REQUIRES an evaluation of the mores of time and situation. People have the right to be secure "against unreasonable searches and seizures". "Unreasonable" isn't an absolute. > >Do you realize what happens when you weaken the federal government and > >force the states to regulate everything themselves? > > Bliss? Freedom from, on a Federal level, ridiculous amounts of > bureaucracy, red tape, and ineffectual employees? Hmm... Freedom from the only organization in society that both wields effective force and is potentially democratic? > The idea that a team of bureaucrats in Washington DC have a flying fig's > worth of knowledge about land use policies in, say, Anchorage (or the > Keys, or Montpelier) is ridiculous. It should be regionalized on a > state level and, when the state is large enough, on a county level. Land use planning is pretty much always done regionally. The exceptions are areas considered to be national treasures or vital national resources. > The Feds should stick to what is defined in the Constitution and leave > the rest to the state governments who, on a better scale, understand > their constituents. There are areas for sure where the federal government far outsteps its Constitutional bounds [the most egregious example is the Constitution's explicit restriction on Congress agreeing to military contracts of greater than 2 year duration and then giving having five year contracts with Boeing and GE and 30 year employment contracts (not to mention pensions) - -- it's just insane]. However, I think you'll also find that locals often lack the perspective necessary to make decisions that have positive effects on the civilization as a whole (let alone the world civilization or the planet itself). Smaller scale very often means shorter sight. > >Right now, it takes a multinational behemoth like Enron or Dow or even > >Caterpillar to push around the federal regulators. > > "Push around" or "force into action?" How about "force into action that is not necessarily the will of the people or to their benefit"? Usually, though it's a force into INaction. A people have the right to regulate the businesses that impact their lives. The businesses have no commensurate right to interfere with the will of the people. > Stanley Works tried that in Connecticut not too long ago. They were > going to pull their headquarters out of New Britain, CT, and move to > Bermuda for a tax break (to the tune of $30 million a year). The AFLCIO > rang in on it, and the State's Attorney General (Tricky Dick Blumenthal) > brought litigation against Stanley Works to guarantee that the > shareholders had the opportunity to fairly participate in the vote on > whether to change its place of incorporation. It's a good example of a > large corporation and manufacturer attempting to bully the state into a > tax reduction (or face total loss of revenue) resolved *on the state > level*. It's completely possible. Was this civil litigation or criminal charges? And what did this do besides moving the decision to a vote of the company's shareholders (who cannot be assured to have the people of Connecticut's best interests in mind or even be informed of the issues)? This doesn't sound like an example of the state doing anything except stalling and hoping the company (via the shareholders) would "change its mind". J. - -- _______________________________________________ Capuchin capuchin@bitmine.net Jeme A Brelin ------------------------------ Date: Thu, 03 Jul 2003 17:01:32 -0400 From: FSThomas Subject: RE: Try Apathy >There are areas for sure where the federal government far outsteps its >Constitutional bounds [the most egregious example is the Constitution's >explicit restriction on Congress agreeing to military contracts of greater >than 2 year duration and then giving having five year contracts with >Boeing and GE and 30 year employment contracts (not to mention pensions) >-- it's just insane]. I'm curious when the 2-year limitation on military contracts was enacted. I only say this because from drafting table to test flight for something like the Joint Strike Fighter (http://www.fas.org/man/dod-101/sys/ac/jsf.htm) *could* be done in two years, but I sure as Hell wouldn't want to fly it. Or be on the ground underneath it while someone else tries. I don't think you would doubt that there are areas of either dated material (ie. 2 year military contracts) or out-right gray areas of the Constitution. Meddling with it to clear these up, however, is a dangerous proposition. > > Stanley Works tried that in Connecticut not too long ago. They were > > going to pull their headquarters out of New Britain, CT, and move to > > Bermuda for a tax break (to the tune of $30 million a year). The AFLCIO > > rang in on it, and the State's Attorney General (Tricky Dick Blumenthal) > > brought litigation against Stanley Works to guarantee that the > > shareholders had the opportunity to fairly participate in the vote on > > whether to change its place of incorporation. It's a good example of a > > large corporation and manufacturer attempting to bully the state into a > > tax reduction (or face total loss of revenue) resolved *on the state > > level*. It's completely possible. > >Was this civil litigation or criminal charges? And what did this do >besides moving the decision to a vote of the company's shareholders (who >cannot be assured to have the people of Connecticut's best interests in >mind or even be informed of the issues)? Civil or criminal, it was brought about by the SAG. A large portion of the shareholders, it turned out, were either present or former employees of the company. In light of being forced to bring it to an open vote, if memory serves, they just dropped the idea and went back to work. I don't think they wanted to face the reality of what a fair and open vote might bring. ------------------------------ Date: Thu, 03 Jul 2003 17:08:57 +0000 (GMT) From: brian@lazerlove5.com Subject: Re: [Ebmaniax] Kidneys a go-go > I was aiming to run the 10K in under 52 minutes, but considering this > health problem and my disappointing runs during the past week or so, > I've reluctantly dropped that goal to 53 minutes. The competition in > those 10Ks is hardcore, man. I'll be lucky to finish within the top > two-thirds of the field. > > Eb Good luck Eb! Run with the wind... ------------------------------ Date: Thu, 03 Jul 2003 14:31:41 -0700 From: "Jason R. Thornton" Subject: Re: [Ebmaniax] Kidneys a go-go At 05:08 PM 7/3/2003 +0000, brian@lazerlove5.com wrote: >Good luck Eb! Run with the wind... Unless of course the wind is blowing toward you, then you should run against it. Best of luck, Jason ------------------------------ Date: Thu, 3 Jul 2003 14:38:26 -0700 From: Eb Subject: Re: [Ebmaniax] Kidneys a go-go >Unless of course the wind is blowing toward you, then you should run >against it. That seems to be the way things usually work out. Eb ------------------------------ Date: Fri, 4 Jul 2003 11:07:08 +1200 From: grutness@surf4nix.com (James Dignan) Subject: Re: favourite lyrics >I was thinking about lyrics that have stayed with me... I believe >written by John Sebastian. He was the one that sang them anyway. "You >didn't have to be so nice, I would have loved you anyway" and "Hot town, >summer in the city, back of my neck getting dirty and gritty, Cool cat >looking for a kitty..." Both of these feel like compressed thoughts, >rather essential in nature, along the lines of very, very short stories. > >Anyone else have similar lyrics, that they keep recalling? other than my sig file :), there are plenty. All it takes is the right moment or situation to trigger one. Here are a selewction: "She's well acquainted with the touch of a velvet hand like a lizard on a window pane" (Beatles) "I've looked at all of the photographs, but Cindy, which one of them is you?" (Billy Bragg) "Cut my losses, grow my hair, find someone to take me there" (The Church) "She looks like Eve Marie-Saint in 'On the waterfront'" (Lloyd Cole - other lyrics from the same song also, such as "Her never-born child still haunts her as she drives down the freeway") "I was so much older then, I'm younger than that now" (Dylan) "She's wearing her 'don't talk to me' face as she makes the kids' lunches. I oblige and softly shut the front door as I leave" (Muttonbirds) The last of these is such a beautifully compact description that sets the scene for a whole domestic life. ah.. that'll do. I could list dozens more, but you're bored already. James, surrounded by the white, snow-clad hills of winter nf- well, it's got these pretty red and white stripes with a blue bit in the corner with white stars all over it... James Dignan, Dunedin, New Zealand -.-=-.-=-.-=-.-=-.-=-.-=-.-=-.-=-.-=-.-=-.-=-.-=-.-=-.-=-.-=-.- =-.-=-.-=-.- You talk to me as if from a distance .-=-.-=-.-=-. -=-. And I reply with impressions chosen from another time .-=- .-=-.-=-.-=-.-=- (Brian Eno - "By this River") -.-=-.-=-.-=-.-= ------------------------------ Date: Thu, 3 Jul 2003 16:07:51 -0700 (PDT) From: Jeff Dwarf Subject: re: Power nipples Eb wrote: > >I know way too much about Bob Crane. > > I've noticed that when Jeme weighs in with film > criticism, his complaints often seem centered on > splitting factual hairs rather than > assessing the filmmaking or acting. If you are making a biopic though, doesn't historical accuracy count? Obviously somethings have to streamlined, but the things Jeme was complaining about are rather different than combining three people into a composite character, etc -- they were far more substantial mistakes than a mere splitting of hairs. If you're making a movie about a real person's sexual appetites, and how feeding those appetites may have led to his untimely demise, making the sort of factual mistakes the makers of "Autofocus" would seemingly have made (I have no way of knowing which is more accurate, the film or Jeme, and I don't actually care that much), doesn't that negate how well a film may have been made from a technical standpoint? If you made a technically and artistically brilliant film about how Abraham Lincoln was a slaveowning crack whore and try to present that as a accurate account of Lincoln's life, does't the fact that Lincoln wasn't a slaveowning crack whore negate whatever skill may have been employed? ===== "Being accused of hating America by people like Ann Coulter or Laura Ingraham is like being accused of hating children by Michael Jackson or (Cardinal) Bernard Law." -- anonymous . __________________________________ Do you Yahoo!? SBC Yahoo! DSL - Now only $29.95 per month! http://sbc.yahoo.com ------------------------------ Date: Fri, 4 Jul 2003 02:23:50 -0400 From: Ed Subject: Privacy "rights" (was "Try Apathy") On Thursday, July 3, 2003, at 04:28 PM, Aaron Mandel wrote: > On Thu, 3 Jul 2003, FSThomas wrote: > >> I did a search for the word "privacy" in both the Constitution and the >> Bill of Rights. It doesn't come up once. Where's the "right to >> privacy" defined in the Constitution? Is it broadly included under >> protection from unlawful search? (This is a genuine question and not >> sarcastic baiting...I honestly don't see it clearly defined anywhere.) > > Read the opinion itself! I wasn't sure about that either (though I > don't > find "it's not printed in the Constitution" a very compelling argument > -- > hundreds of years of Supreme Court precedent that aren't themselves > part > of the Constitution are weighed in the SC's decisions too) but on the > very > first page of Lawrence v. Texas it says the argument is that Texas's > law > deprived people of liberty without due process (amendment V). I believe > this "right to privacy" stuff is just *shorthand* for referring to > previous court opinions where exactly what it meant to take away > "liberty" > was narrowed down. > Ferris -- I'm glad you said the thing about that being a serious question -- I was prepared to go off on a rant! Anyway, the connection between "due process" -- "liberty" -- "privacy" is basically this: in the early 20th century -- in the pre-Depression heyday of laissez faire capitalism -- the Supreme Court invented the notion of "substantive due process" (I'm fudging a bit here, because its roots were a bit older, though at the state court level). The notion was that "due process of law" was not only a restriction on the government's power to deprive citizens of liberty (or property, importantly) without certain "process" (namely, trial by one's peers, right to confront witnesses, no involuntary confessions, etc), but also implied certain "substantive" rights that the government could not abridge (no matter how "due" the "process" may have been). This doctrine was deployed to enshrine "liberty of contract" as the be-all and end-all of personal rights, ensuring capitalists legal protection from the encroaching regulatory state. For example, in the famous case Lochner v. NY, the Court held that substantive due process right of "freedom of contract" prohibited the state of NY from setting maximum weekly hours for workers in bakeries (because of documented adverse health effects from breathing flour dust 80 hours a week). In other words, the regulation in question infringed on the owner's right to bargain freely with his workers (who, obviously, had no "freedom" in making the terms of the employment contract,, as most union activity was outlawed). The substantive due process right of "freedom of contract" was later invoked to strike down, as unconstitutional, much of FDR's New Deal legislation, for similar reasons. As a result, FDR proposed his infamous "court packing plan" (that would have allowed him to appoint a new justice for each sitting justice over 65 years old who did not retire, giving FDR 7 new seats -- increasing the court's size to 16 -- and guaranteeing majorities to affirm New Deal legislation.) Even FDR couldn't make that one fly, but the Court got the message & scaled back "freedom of contract" rights as of 1937 (the so-called "switch in time that saved 9"). Justice Brandeis also used substantive due process to further progressive causes and laws, by defining a class of "fundamental rights" traditionally recognized as necessary to any system of "ordered liberty", that the State may only curtail if it has a "compelling interest." (a similar analysis also applied to explicit textual provisions, such as the Equal Protection Clause -- government may not treat different class of citizens unequally unless the law is "narrowly tailored" to serve a "compelling" state interest). Fast forward to 1967. Writing for the Court, Justice William O Douglas struck down Connecticut's ban on contraceptives on the ground that "penumbras, formed by emanations" from certain rights explicitly included in the bill of rights -- especially, as you proposed, the 4th amendment right to be free of unreasonable search and seizure -- implied the existence of a right of privacy that included the right to control reproductive choices. Now go to 1973, when Roe v. Wade was decided. Since Douglas was widely ridiculed for his "penumbras" doctrine, the Court fell back on substantive due process as an additional grounding for the "right" of "privacy," declaring (without reasoning) that such right was broad enough to cover the right to decide whether to continue a pregnancy to term (until the State's right in protecting "potential life" became "compelling," at viability). Justice Blackmun also invoked the Brandeis "fundamental right" doctrine as additional support for the right of privacy -- frankly, because he wasn't comfortable with substantive due process. Now it's 1986, and the Court hears Bowers v. Hardwick, a challenge to Georgia's sodomy law, which applies to both hetrosexual and homosexual practices. Writing for the majority (that included Rehnquist and O'Connor, by the way), Justice Stewart dismisses substantive due process (finding that the clause only guarantees certain procedures, not substantive rights) and held that a gay couple's right to engage in sexual practices prohibited by Georgia could only be protected if it qualified as a traditionally-recognized fundamental right -- the Brandeis approach. Because the Court found it absurd to even consider that gay sex would have been traditionally recognized as a fundamental right, the law was upheld. Now it's 2003, and Justice Kennedy writes the majority opinion in Lawrence v. texas -- and again revives substantive due process as the basis for the right of "privacy." Because he defines the right at issue more broadly -- essentially, as the right of self-determination and expression (which Scalia scathingly refers to as the "sweet mysteries of life" interest in his dissent), the right also fits Brandeis' conception. So, you're right -- "privacy" doesn't appear in the text of the Constitution (but then, neither does "freedom of contract"), but it has a fairly long history (though a highly contentious one). ed, esq. np: Iggy "I Got a Right" ------------------------------ Date: Fri, 04 Jul 2003 00:44:25 -0700 From: "The Mammal Brain" Subject: The Kuna Tree, The Kuna Tree is something i posted to the coen bros. mailing list years ago. actually, i had thought that i'd BCCed both yourself and miles on general principle. but perhaps i neglected to do so.... _________________________________________________________________ Help STOP SPAM with the new MSN 8 and get 2 months FREE* http://join.msn.com/?page=features/junkmail ------------------------------ Date: Fri, 4 Jul 2003 22:37:51 +1200 From: grutness@surf4nix.com (James Dignan) Subject: Ou sont les neiges de l'antan? Ici! Snow! Two inches of it outside - there's a party further down the street having snowball fights outside. Have a look! Two inches may not sound like much by NE US standards, but this is the heaviest fall in Dunedin city for over a decade (I can remember me an my then girlfriend building a snowman in the street in 1986 - that would probably be the last fall this heavy). Merry Christmas, ho ho ho! James Dignan, Dunedin, New Zealand -.-=-.-=-.-=-.-=-.-=-.-=-.-=-.-=-.-=-.-=-.-=-.-=-.-=-.-=-.-=-.- =-.-=-.-=-.- You talk to me as if from a distance .-=-.-=-.-=-. -=-. And I reply with impressions chosen from another time .-=- .-=-.-=-.-=-.-=- (Brian Eno - "By this River") -.-=-.-=-.-=-.-= ------------------------------ Date: Fri, 4 Jul 2003 12:46:22 +0100 (BST) From: Michael R Godwin Subject: Re: favorite lyrics On Wed, 2 Jul 2003, Barbara Soutar wrote: > I was thinking about lyrics that have stayed with me... I believe > written by John Sebastian. He was the one that sang them anyway. "You > didn't have to be so nice, I would have loved you anyway" and "Hot town, > summer in the city, back of my neck getting dirty and gritty, Cool cat > looking for a kitty..." Both of these feel like compressed thoughts, > rather essential in nature, along the lines of very, very short stories. > > Anyone else have similar lyrics, that they keep recalling? "There are thirteen hunderd n fifty two gitar pickers in Nashville And they can pick more notes than the number of ants on a Tennessee anthill Yes there's thirteen hunderd and fifty two gitar pickers in Nashville And any one who unpacks his gitar can place twice as better than I will" John Sebastian, Nashville Cats And what about "Four Eyes": Excellent songwriter, burned out too quickly. - - Mike Godwin ------------------------------ Date: Fri, 4 Jul 2003 13:00:53 +0100 (BST) From: Michael R Godwin Subject: Re: favorite lyrics On Fri, 4 Jul 2003, Michael R Godwin wrote: > And what about "Four Eyes": > Just noticed that this site omits the punch line from the last verse: Mister up 'n' middle classes - - > Let the Baby Choose His Glasses < - And please recall that after all He wears them on his face Odd splitting of the word 'tortoiseshell' too. - - MRG ------------------------------ Date: Fri, 4 Jul 2003 10:08:08 -0500 From: steve Subject: Re: Privacy "rights" (was "Try Apathy") On Friday, July 4, 2003, at 01:23 AM, Ed wrote: > Now it's 1986, and the Court hears Bowers v. Hardwick, a challenge to > Georgia's sodomy law, which applies to both hetrosexual and homosexual > practices. Writing for the majority (that included Rehnquist and > O'Connor, by the way), Justice Stewart dismisses substantive due > process (finding that the clause only guarantees certain procedures, > not substantive rights) and held that a gay couple's right to engage > in sexual practices prohibited by Georgia could only be protected if > it qualified as a traditionally-recognized fundamental right -- the > Brandeis approach. Because the Court found it absurd to even consider > that gay sex would have been traditionally recognized as a fundamental > right, the law was upheld. Was it Lewis Powell who said his vote with the majority was the worst mistake he ever made as a Justice? (Insert anti-federalism/anti-strict construction rant here). - - Steve __________ God told me to strike at al Qaida and I struck them, and then he instructed me to strike at Saddam, which I did, and now I am determined to solve the problem in the Middle East. If you help me I will act, and if not, the elections will come and I will have to focus on them. - George Bush, as related to Harretz by Mahmoud Abbas ------------------------------ Date: Fri, 4 Jul 2003 11:59:31 -0400 From: Ed Subject: Re: Privacy "rights" (was "Try Apathy") On Friday, July 4, 2003, at 11:08 AM, steve wrote: >> Because the Court found it absurd to even consider that gay sex would >> have been traditionally recognized as a fundamental right, the law >> was upheld. > > > Was it Lewis Powell who said his vote with the majority was the worst > mistake he ever made as a Justice? Yes. After he retired from the Court, he said that he didn't understand the stakes involved until he received many critical letters about his vote in Bowers -- in other words, he really didn't pay attention at the time. When he "realized" that the case concerned more than sex -- indeed, that it was cited as precedent in all manner of cases upholding disparate treatment based on sexual orientation (following the "logic" of: if the "defining" act of homosexuality was itself criminalized, the OF COURSE an employer could fire someone because they were gay, or a landlord refuse to rent an apartment to a lesbian couple, or a judge could award custody of a child to a known wife beater, because his divorced lesbian spouse broke the law every day with her partner...) -- then he regretted his vote. (On that last example, Barney Frank had another funny observation: "Why do people harbor this illusion that gay couples have such active sex lives? More like once a month, like most married straight couples.") That was a pretty lousy display from Justice Powell, although he also authored the opinion defining ("defining" is not really the right word here) what constitutes "obscenity" not protected by the 1st Amendment - -- he actually wrote that he couldn't define it, but he claimed to "know it when I see it." He also gave us the Baake reverse-discrimination case -- which assumed an equivalence between affirmative action and the white supremacist discrimination it was designed to compensate for (which the hypocritical Scalia-Thomas-O'Connor-Rehnquist faction continues to this day, when they talk of the "color-blind Constitution.") Quite a deep thinker, that guy was. ------------------------------ End of fegmaniax-digest V12 #251 ********************************