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Gestell writes: June, 05, 2007 11:46 AM

.....So the simplest way to handle all this is to take Hugo Black's position and say that the Constitution does not contain privacy rights.

As a liberal, not a conservative, my own view is this: If the Constitution does not protect a right to privacy, so much the worse for the Constitution.

DESKJOCKEY RESPONDS

Gestell, thank you for your objective input. I just have some musings that may be of interest and I admit I’m a penumbra mocker and novice.

My mocking is based on my view that post Lincoln we have merely used the Constitution as a toy to entertain the masses and like the penumbras, our masters can find anything or have it mean anything they well please. They now travel to France to find out what it means. But going back to the original intent, the Constitution granted nothing, let alone privacy. The people granted some of their rights via the Constitution they being the grantor and giver-ment the grantee. The grantee can’t grant, therefore finding rights the grantee grants the grantor is problematic for me.

Now post civil war we had Lincoln’s chief justice Salmon P. Chase interpretation that all states rights were surrendered at Appomattox as he proudly claimed. Ergo penumbras among many other new revelations and the continual evolution leading to the incorporation interpretation and therefore views like Griswold. In my opinion Griswold, Kelo and Terri Schiavo are not a SC jurisdiction if looking at founder’s intent.

My simple view is that the Constitution has been granted no rights over behavior, including sex. And as you say the SC has taken an incorporation view via the wildly expanded view of the 14th to allow them to basically nullify states rights.

Because the South lost the war, states rights were lost and I can easily make the argument that the giver-ment and the courts can say or do anything they please as the spoils go to the victor. But clearly that was not intent. I would like you to look at Reynolds V US to see how careful the court was when stepping into a behavior issue. If Utah was not a territory, but rather a state, Judge Waite would not have ventured therein. Today we have Lawrence v TX and the court just jumps right in. I like Scalia's admission a year ago on the marijuana case where he said he rendered his opinion subject to his view that he had not right because it is noth a SC jurisdiction but he is acknowledging the courts precedent of over reaching jurisdiction. My uncle got him that job by the way.