Not only is he apparently unsympathetic to students who are strip searched by school officials based upon flimsy evidence, he also grossed out plenty of folks with this little homespun tidbit.

Justice Breyer elaborated on what children put in their underwear. “In my experience when I was 8 or 10 or 12 years old, you know, we did take our clothes off once a day,” he said. “We changed for gym, O.K.? And in my experience, too, people did sometimes stick things in my underwear.”

Stephen, get help. Please.

And protect the right of students to not be strip searched by school officials on the basis of nothing more than the word of another student.

Posted by: Greg at 10:11 AM | Comments (2) | Add Comment
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Another court ruling to reinforce the obvious.

We therefore conclude that the right to keep and bear arms is “deeply rooted in this Nation’s history and tradition.” Colonial revolutionaries, the Founders, and a host of commentators and lawmakers living during the first one hundred years of the Republic all insisted on the fundamental nature of the right. It has long been regarded as the “true palladium of liberty.” Colonists relied on it to assert and to win their independence, and the victorious Union sought to prevent a recalcitrant South from abridging it less than a century later. The crucial role this deeply rooted right has played in our birth and history compels us to recognize that it is indeed fundamental, that it is necessary to the Anglo-American conception of ordered liberty that we have inherited. We are therefore persuaded that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the states and local governments.

It is really quite simple – if the use of the phrase “the people” in the First Amendment is indicative of an individual right, the same must be true when that phrase is used in the Second Amendment, since it was composed at the same time by the same authors. And if the Fourteenth Amendment incorporates individual rights against the states in regard to the rights protected by the First Amendment, the same must be true of the right guaranteed by the Second Amendment. It is about time that our Second Amendment jurisprudence catches up with our First Amendment jurisprudence.

Posted by: Greg at 11:06 AM | No Comments | Add Comment
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How many European nations does it take before the Supreme Court declares it an international trend and finds such conduct protected by the US Constitution?

Three European Union nations — France, Spain and Portugal — do not prosecute consenting adults for incest, and Romania is considering following suit.

* * *

Laws exempting parents, grandparents, brothers and sisters from prosecution for incestuous acts if they are not forced upon adult family members are decades old in France, Spain and Portugal.

In Romania, decriminalizing incest among consenting adults is being considered as part of a wide range of reforms to the countryÂ’s criminal code. No date has been set yet for a parliament vote on the bill, and opposition to the proposal is fervent even among some lawmakers in the ruling coalition.

The reliance upon foreign courts and foreign law by the justices of the Supreme Court has become more common in recent years. And after Lawrence v. Texas and its expansive interpretation of the right to privacy to forbid consensual sexual relations between consenting adults, it would be quite easy to argue that there is a substantive basis for such a ban. After all, Justice Kennedy wrote the following in the majority opinion.

"When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice."

The logic would be equally as compelling in the case of an adult couple engaged in an incestuous relationship – and given that mere societal disapproval has been held to be insufficient to allow for laws against homosexual sodomy to be upheld, how can similar laws regarding adult incest stand up to constitutional scrutiny? And lest some argue that there is the increased chance of genetic problems in the offspring of such relationships, given that the increase is relatively small is that really a sufficient basis for such a prohibition?

Now please realize that I am not making an argument for incest – I’m not. Rather, I am arguing that the current case law relating to adult sexual expression is such that I don’t see how a law against it can stand – and that this is but one potential unforeseen consequence of an expansive decision that invalidated on constitutional grounds a law that justices saw as unwise, and the tendency to use foreign law as a matrix for interpreting our own constitution.

H/T Secular Right

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I find this bit of analysis to be rather intriguing – and a sign that current justices have learned from the over-reaching of an earlier era.

In other contexts, this sort of turmoil might amount to an invitation for the United States Supreme Court to step in. But there are all sorts of reasons the court is likely to keep its distance, and a central one is the endlessly debated 1973 decision that identified a constitutional right to abortion.
“The concern about creating another Roe v. Wade looms large,” said Nathaniel Persily, who teaches law and political science at Columbia. “At least five members of this court, if not more, would probably be reluctant to weigh in on this controversy, especially given the progress that is being made in state legislatures, state courts and public opinion.”

Let’s be really honest here – in 1973, there was already movement towards legalizing abortion in many states. Indeed, Ronald Reagan had signed legislation allowing it, though he later came to regret his decision. But the issue was being handled as the Framers would have hoped – on the state level, by the people and their elected representatives.

Unfortunately, I suspect that there will be a need to settle this question on the national level. Once an abortion is performed, it is done. A marriage, on the other hand, might well be described as a movable feast. Indeed, I was an Illinoisan who was married in Pennsylvania and later moved to Texas – and every state in the union would most certainly recognize my marriage as valid. The same is not true of marriages between individuals of the same sex, and that does ultimately raise a question under Article IV. Does the federal Defense of Marriage Act shield states from recognizing these marriages? Or does the requirement of “full faith and credit” mean that states must recognize marriages that would be forbidden under their own laws? The federalism issue here is one that must ultimately be resolved in the federal courts – or by a constitutional amendment.

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