Yes, but there is a fairly high standard for what it takes to modify the Constitution. Most of the liberal/progressive usurpation of power by the fed.gov has taken place by Congressional or judicial fiat, not the approved amendment process. The notable exception being the 16th Amendment, which allowed the income tax. Social security, Medicare and other health care, pretty much every entitlement program, agricultural subsidies, gun control, abortion, education "standards", environmental "standards", etc, (all pretty clearly outside the original scope of the federal gov't) were not implemented through an amendment to the Constitution.Originally Posted by motorfirebox
I absolutely agree. I argued earlier against a Constitutional amendment regarding homosexual activities. I'm just saying that if one is to stick rigidly to the opinions of the founding fathers, one has to take into account that in their opinion, the government should change to account for shifts in society.
Fixed and flexible words
This is an observation on one methodology employed by lawyers and judges to interpret the US Constitution. I'd call it "mainstream" since it has been used in a time frame spanning John Marshall to the Warren Court - and can't be simply classified as "liberal" or "conservative" because it has been used by laywers and justices of all political leanings. Since the early 60s, it has somewhat fallen out of style as US Constitutional Law has become more and more polarized and has been shaped more and more by "true believers".
Briefly, to use that methodology, we look at the Constitution and see that some words have more or less of a "fixed meaning", or conversely a "flexible meaning" - when adopted, since adoption and in our time. We determine that by looking to the "original understanding history" (meaning or meanings when adopted) and to "ongoing history" (meaning or meanings since adoption and in our time).
Examples of "fixed meaning" words are the age requirements (Art. I, Sec. 2; Art I, Sec. 3; and Art. II, Sec. 1):
While there can be some quibbling about exactly what an "age of X years" means, the words seriously limit the amount of quibbling. So, the methodology I describe would hold that those constitutional provisions can only be "changed" by the formal amendment process.2. No person shall be a Representative who shall not have attained the age of twenty-five years...
....
3. No person shall be a Senator who shall not have attained to the age of thirty years....
...
4. ... neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years ....
On the other hand, there are words such as "arms" in the Second Amendment and "commerce" in the Commerce Clause which can be termed "flexible words"; that is, that the "original understanding history" evidences an understanding that some change in meaning (greater or lesser from that understood in the 1780s) was contemplated to allow adaptation in the future. In that case, "ongoing history" would provide insight into what changes would be permissible within the limits evidenced by the "original understanding history".
Sometimes, the combination of the "original understanding history" with the "ongoing history" allows two different procedures to be used - both constitutional under the same clause. For example, the legislative power to "declare war" was early considered to allow either a formal declaration of war or an act of Congress (in effect, an AUMF). See, James Kent, Commentaries on American Law (1826), I-III-2 (extensive footnotes are in the original at link):
Use of James Kent's Commentaries (the leading US legal resource of its time) illustrates what I mean by looking to the "original understanding history" and the "ongoing history" (through 1826). We can easily follow up later history with its formal declarations of war in some cases, and acts of Congress in other cases allowing the use of force, to conclude from US practice that Kent was on target and that both procedures are acceptable under the "to declare war" language.After the peace of Versailles, in 1763, formal declarations of war of any kind seem to have been discontinued, and all the necessary and legitimate consequences of war flow at once from a state of public hostilities, duly recognized and explicitly announced by a domestic manifesto or state paper.
In the war between England and France, in 1778, the first public act on the part of the English government was recalling its minister; and that single act was considered by France as a breach of the peace between the two countries. There was no other declaration of war, though each government afterwards published a manifesto in vindication of its claims and conduct.
The same thing may be said of the war which broke out in 1793, and again in 1803; and, indeed, in the war of 1756, though a solemn and formal declaration of war, in the ancient style, was made in June, 1756, vigorous hostilities had been carried on between England and France for a year preceding.
In the war declared by the United States against England, in 1812, hostilities were immediately commenced on our part as soon as the act of Congress was passed, without waiting to communicate to the English government any notice of our intentions.
But though a solemn declaration, or previous notice to the enemy, be now laid aside, it is essential that some formal public act, proceeding directly from the competent source, should announce to the people at home their new relations and duties growing out of a state of war, and which should equally apprise neutral nations of the fact, to enable them to conform their conduct to the rights belonging to the new state of things. War, says Vattel, is at present published and declared by manifestoes.
Such an official act operates from its date to legalize all hostile acts, in like manner as a treaty of peace operates from its date to annul them. As war cannot lawfully be commenced on the part of the United States without an act of Congress, such an act is, of course, a formal official notice to all the world, and equivalent to the most solemn declaration.
Regards
Mike
PS: The Constitutional Society (source of Kent's Commentaries) has a wealth of original documents (as well as its own articles) at its webpage. Its editorial slant is as stated, but the original documents say what they say:
I'd quibble with this because, to me, the written constitution is a super (and I'd say superior) form of stare decisis. The opposite to a written constitution and its stare decisis is the judicial methodology to do "social justice" in each case - where the left and right will have far different ideas of what "social justice" is.If we define "constitutionalism" as a commitment to strict enforcement of a written constitution of government as it was originally understood by its framers and ratifiers, then its opposite is the doctrine and practice of "legal realism", which holds that the "law" is whatever judges do or can be expected to do, whose main tenet is the doctrine of stare decisis as presently practiced, and which is fundamentally in conflict with adherence to a written constitution.
Last edited by jmm99; 01-11-2011 at 09:06 PM. Reason: add PS
...that I will bear true faith and allegiance to the same;
I take the "evolving document" or "living document" (I've heard both terms) idea to mean things still read the same as they originally did but now the meaning is different, presumanbly because we as a people are now a little more enlightened and the original meaning does not suit our purposes in this day and age.
I believe the evolving document interpretation makes no sense. If the document evolves (by my definition of evolve) an amendment process is not needed - just run the country by the polls. But we have an amendment process because the founding fathers realized things would need to change from time to time, so they gave us a process by which the change was to occur.
I believe the U.S. Constitution has to mean to us what it meant the day it was ratified to the people who ratified it. If it needs to change, then change it according to the process.
"I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same;.....
I'm not bearing true faith and allegiance to something that changes in meaning everytime society decides they're now a little more enlightened.
Last edited by Rifleman; 01-12-2011 at 05:12 AM.
"Pick up a rifle and you change instantly from a subject to a citizen." - Jeff Cooper
*caution* Canadian ruminating on the U.S. Constitution. *caution*
I suppose it also bears considering whether it was intended for the rights specifically enumerated in the Constitution and amendments were to be exhaustive, or whether they were simply 'fundamental', but not the entire body of right sin the nation. Clearly it can't be held that the Constitution lists all rights- the Ninth Amendment is clear on that issue. The common law has perpetuated an abundance of rights, although admittedly most have been tested and upheld on constitutional grounds.
If the list of rights in the Constitution is not to be considered exhaustive, then, I would hold that unless the Constitution explicitly limits or restricts a right, by default the issue should be decided in favour of the maximum amount of personal liberty. If the state sees a need to explicitly limit certain rights and liberties it can do so legislatively, so long as it does not run afoul of constitutional principles. But the entire American system is based, philosophically, upon maximizing individual liberty, even if it hasn't played out so well in modernity. The Fourteenth Amendment explicitly states that "No state shall deprive and person of life, liberty, or property without due process of law, ; nor deny to any person within its jurisdiction the equal protection of the laws."
So it seems fair to say that the constitution is intended to enumerate certain rights, but not to be held as exhaustive; that given ambiguity, the state should err (if the term applies) on the side of individual liberty. I'd also say that subsequent amendments have shown the Constitution to have had some oversights and to have been in need of modernization. It was pointed out earlier in this threat that the constitution explicitly excluded women and blacks due to specific wordings or omissions. There is no such explicit or even implict restriction on homosexuals, and so an amendment should not be necessary to deem constitutional protections of liberty to extend to gays.
You're correct, except that you misunderstand the fundamental limitations of the US Constitution. As originally designed, it acted as a list of restrictions on the federal gov't, only. State gov'ts were not bound by the Constitution (other than were it specifically referred to them), but by their own Constitution. Only following the 14th amendment were aspects selectively applied to the states. IMO, the 14th should be very selectively applied (it was intended to prevent state gov'ts for not recognizing the recently freed slaves, and from relegating them to the status of second class citizens). It has been expanded to prevent individuals from choosing who the choose as roommates, and to allow the idiotic phenomanon of anchor babies. Ridiculous.
+1. More to follow. If you want to live under a constitution that is pro forma and means whatever the majority or those in power want it to mean at that moment as influenced by the flavor of the month, move to Europe or ...Canada?
Hey Rifleman,
Since this is your belief, it stands as such and I'm not about to argue with a belief:
but how strict a test are you really applying ?I believe the U.S. Constitution has to mean to us what it meant the day it was ratified to the people who ratified it. If it needs to change, then change it according to the process.
Example, in 1790, "commerce" did not mean steam boats, railroads, airplanes, telecommications, etc. So those future means of carrying on "commence" (and the changed modes of commerce they created) could have had no meaning to the ratifiers.
Are you saying that the commerce clause should have been formally amended each time there was a changed mode of carrying on commerce ?
Looking for a clarification, not an argument. I think we both agree that the Constitution should not be changed because of one's sense of current "social justice" (whatever that might mean to the beholder).
Regards
Mike
PS: Here are two links to articles re: the Commerce Clause, both by conservatives: Bob Bork & Dan Troy, LOCATING THE BOUNDARIES: THE SCOPE OF CONGRESS'S POWER TO REGULATE COMMERCE (2002); and Randy Barnett, The Original Meaning of the Commerce Clause (2001) - what they mean by "original meaning".
Last edited by jmm99; 01-12-2011 at 08:41 PM. Reason: add links
This gets to my distinction between "Principles" and "Values." Principles, such as "all men are created equal," are timeless and should not change. However, how we value that principle will evolve along with our culture. A value being a principle with a judgment applied to it.
For us to ignore changes in our culture, technology, etc that evolve over time and cling to values assessed to these principles nearly 250 years ago would be dangerous. That said, to abandon principles that we no longer understand (such as the right to bear arms) are equally dangerous. An armed, informed populace that is free to peaceably assemble is crucial to deterring the three branches of government from ganging up on us.
The entire mix works. Preserve the principles, but let the values flex to retain relevance.
Robert C. Jones
Intellectus Supra Scientia
(Understanding is more important than Knowledge)
"The modern COIN mindset is when one arrogantly goes to some foreign land and attempts to make those who live there a lesser version of one's self. The FID mindset is when one humbly goes to some foreign land and seeks first to understand, and then to help in some small way for those who live there to be the best version of their own self." Colonel Robert C. Jones, US Army Special Forces (Retired)
Assuming one of the two consenting adults in the sole owner of the bank and he consented to the action, I would say yes. But by establishing that condition, it loses its criminal aspect. The problem is, buy the definition of "Robbery" is the unlawful taking the property of another, with the intent to permanently deprive the person of that property, by means of force or fear. Criminal intent (scienter) is an element of the offense. Hence, it is definitionally impossible for two "consenting" adults to commit robbery. If you are robbing a bank, one of the parties is non-consenting.
Actually, it is in the Tenth Amendment offers the people the greatest protection against Federal intervention, but it is almost never used : "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"
In reality, the federal government cannot make laws prohibiting sodomy, which was the UCMJ article that prohibited homosexual conduct. (At one time it also prohibited oral sex between couples of the opposite sex too.)
The federal government has not legalized homosexuality. It never really had the power to make it illegal. It has the power to regulate the behavior of members of the military to maintain good order and discipline.
What the federal government does have is the power to exempt members of the military from certain local laws while they are on a military instillation. It will be interesting to see if we maintain concurrent jurisdiction in the future.
Now, the power to regulate the military expressly belongs to the congress under Article I, Section 8 ... "To make Rules for the Government and Regulation of the land and naval Forces ..."
Courts have given congress great deference.
"Scope of the congressional and executive authority to prescribe the rules for the governance of the military is broad and subject to great deference by the judiciary. The Court recognizes “that the military is, by necessity, a specialized society separate from civilian society,” that “[t]he military constitutes a specialized community governed by a separate discipline from that of the civilian,” and that “Congress is permitted to legislate both with greater breadth and with greater flexibility when prescribing the rules by which [military society] shall be governed than it is when prescribing rules for [civilian society].”1540 Denying that Congress or military authorities are free to disregard the Constitution when acting in this area,1541 the Court nonetheless operates with “a healthy deference to legislative and executive judgments” with respect to military affairs,1542 so that, while constitutional guarantees apply, “the different character of the military community and of the military mission requires a different application of those protections.”" http://law.onecle.com/constitution/a...ed-forces.html citing Parker v. Levy 417 U. S. 733 (1974) http://law.onecle.com/constitution/a...ed-forces.html
Last edited by TheCurmudgeon; 01-12-2011 at 10:27 PM.
"I can change almost anything ... but I can't change human nature."
Jon Osterman/Dr. Manhattan
---
Into the Mix
1. In 2003 Lawrence v Texas SCOTUS presto chango (is that Latin?) found that consentual adult sodomy was a constitutionally protected activity. At that time the Constitution had been in effect for over 200 years, sodomy had been illegal in most places in the U.S. for all that time, some of the Founders had been involved in actions punishing sodomy, SCOTUS had established precedent that sodomy laws were constitutional (Bowers v Hardwick 1986), and no amendment had been made to the constitution between 1986 and 2003 saying sodomy, previously unprotected by the constitution, was now a constitutionally protected activity. This seems to be a ruling from pure emotion rather than law and legislating from the bench. What probably would have been more appropriate would have been for SCOTUS to say sodomy in neither protected nor prohibited by the Constitution and turned the question back to the various state legislatures for action.
2. Commerce. Problem with the commerce clause is its misuse. I would imagine the Founder thought commerce meant commerce as in commercial activity. For much of the past 75 years, it has meant that our supposedly limited government can intervene in anything and everything whether it has any real connection or not to what a reasonable man would term commerce.
Not really. First, I disagree that Lawrence is controlling in this matter. As stated above, the congress can do a number of things. Desegregation was accomplished in the military long before Brown v. Board of Education.
Second, Lawrence was simply extending a line of reasoning dealing with contraception - that states could not justify having laws regarding restricting contraception without a valid reason. In essence, if the activity was being conducted between consenting adults and the state could not demonstrate a valid reason for intervening, then they had no business restricting the activity. This ruling also allowed my spouse and I to engage in oral sex without fear of being prosecuted for it (which would have been illegal in Texas under the same law).
What substantive due process means is that the government must show a valid interest in the activity if it wants to intervene. Doesn't really matter what the rule was in the past. And the amendment was post civil war. Fourteenth Amendment, Section 1 "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." This is the basis for Lawrence. So it wouldn't matter what the founding fathers thought. (And I would bet that at least Benjamin Franklin engaged in Sodomy as defined under the Texas Law.)
Often the laws in question are based on religious, not civil interest. As such, they are not defensible under the constitution, which was intended to be a secular document.
Last edited by TheCurmudgeon; 01-13-2011 at 01:06 AM.
"I can change almost anything ... but I can't change human nature."
Jon Osterman/Dr. Manhattan
---
Twio consenting adults -
John's example, was presented as a absolute and without qualification:
I pointed out (post #262) that a crime can be committed by two consenting adults:by JW (post #261)
... the state never has any right to interfere in any voluntary interaction between two consenting adults ....
In post #264, I pointed out that a crime could be committed via either a conspiracy or an attempt (providing links to those criminal liability theories). In either case, at most, a material overt act would be required. That overt act does not have be unlawful and does not have to involve a third person or third persons.You and I (two consenting adults) decide to rob a bank (a voluntary interaction). Does the state have a right to interfere ?
In short, John's statement was overbroad in at least one instance. Other posters who require (by assumption) an actual bank robbery (involving actual third party victims) ignore the laws of conspiracy and attempts.
See, the many domestic US cases vs AQ-linked conspirators and attempted IED artists, settled via guilty pleas or verdicts.
Frankly, I've no special interest or expertise in the "should" or "should not" of criminal laws re: private sexual interactions between two competent, consenting adults. I'm sure that one can find many different "umbras", "penumbras" or "emanations" to grasp onto re: that issue - as this thread proves.
Regards
Mike
Last edited by jmm99; 01-13-2011 at 01:44 AM.
I knew the legal mind would pick me apart!
jmm99,
I don't know, I've never thought about the commerce example before.
The specific examples I had in mind were Ammendments II and X, of course.
"Pick up a rifle and you change instantly from a subject to a citizen." - Jeff Cooper
Not really. Per your cite conspiracy requires a third person.
"Exceptions
* Under section 2(1) the intended victim of the offence can not be guilty of conspiracy.
* Under section 2(2) there can be no conspiracy where the only other person(s) to the agreement are:
(a) a spouse or civil partner; [1]
(b) a person under the age of criminal responsibility; and
(c) an intended victim of that offence."
So, there has to be a third party victim (or an intended third party victim). An act that only involves the two consenting adults can never be conspiracy.
Attempts would also have to require a third party victim.
"I can change almost anything ... but I can't change human nature."
Jon Osterman/Dr. Manhattan
---
Not interested in quibbling with you,
TheCurmudgeon - so declare yourself the winner and go on to apply your concepts of conspiracy and attempts to your real life as you please.
Cheers
Mike
Hey Rifleman,
In law, the "METT-T" answer is "it depends" - on which constitutional provision you are looking. Of course, the Commerce Clause has been over-interpreted (as both Bork and Barnett demonstrate), but there is more room in "commerce" for flexibility.
As to Amendment X (and IX), both have been largely ignored by SCOTUS - and marginalized - unfortunately, so far as my opinion counts for anything.
As to the Second Amendment, I liked Justice Thomas' concurence in 2010 McDonald (emphasis added):
He then went on to use both "original understanding history" and "ongoing history" to make his point. Unfortunately, that methodology is not often used today - and Justice Thomas' opinion was an opinion of one.OTIS MCDONALD, ET AL., PETITIONERS v. CITY OF
CHICAGO, ILLINOIS, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[June 28, 2010]
JUSTICE THOMAS, concurring in part and concurring in the judgment.
I agree with the Court that the Fourteenth Amendment makes the right to keep and bear arms set forth in the Second Amendment “fully applicable to the States.” Ante, at 1. I write separately because I believe there is a more straightforward path to this conclusion, one that is more faithful to the Fourteenth Amendment’s text and history.
Applying what is now a well-settled test, the plurality opinion concludes that the right to keep and bear arms applies to the States through the Fourteenth Amendment’s Due Process Clause because it is “fundamental” to the American “scheme of ordered liberty,” ante, at 19 (citing Duncan v. Louisiana, 391 U. S. 145, 149 (1968)), and “‘deeply rooted in this Nation’s history and tradition,’” ante, at 19 (quoting Washington v. Glucksberg, 521 U. S. 702, 721 (1997)). I agree with that description of the right. But I cannot agree that it is enforceable against the States through a clause that speaks only to “process.” Instead, the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment’s Privileges or Immunities Clause.
Moving back in time - since it was rendered only a decade past the initiation of the US goverment under the Constitution - the opinion of Justice James Iredell in Calder v Bull, 3 U.S. 386 (1798), is instructive as to the "original understanding" of what courts (esp. SCOTUS) may or may not do (3 U.S. 386 at 399):
Seems a good rule to me - even at 212 years of age.In order, therefore, to guard against so great an evil [JMM: a ref. to unlimited legislative power - see prior para. 3 U.S. 386 at 398-399], it has been the policy of all the American states, which have, individually, framed their state constitutions since the revolution, and of the people of the United States, when they framed the Federal Constitution, to define with precision the objects of the legislative power, and to restrain its exercise within marked and settled boundaries. If any act of Congress, or of the Legislature of a state, violates those constitutional provisions, it is unquestionably void; though, I admit, that as the authority to declare it void is of a delicate and awful nature, the Court will never resort to that authority, but in a clear and urgent case.
If, on the other hand, the Legislature of the Union, or the Legislature of any member of the Union, shall pass a law, within the general scope of their constitutional power, the Court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject; and all that the Court could properly say, in such an event, would be, that the Legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice.
Regards
Mike
Last edited by jmm99; 01-13-2011 at 04:33 AM.
Dear Readers, I suppose I was a bit "short"
with TheCurmudgeon. Here's why - no apology.
Yup, he did go to my link on Conspriracy (crime) - and quickly read down the page to find the first thing he could cherry-pick, which was:
Obviously, a statute is referenced - whose statute ? Why Criminal Law Act 1977, of course - which comes under the heading "Conspiracy in English Law".Exceptions
Under section 2(1) the intended victim of the offence can not be guilty of conspiracy.
Under section 2(2) there can be no conspiracy where the only other person(s) to the agreement are:
(a) a spouse or civil partner; [1]
(b) a person under the age of criminal responsibility; and
(c) an intended victim of that offence.
The law cited by TheCurmudgeon is UK law - and David or some other Brit can explain that law if they wish.
Now, the Wiki does get into US law - specifically, the Federal conspiracy law as considered by SCOTUS (emphasis added):
Make up your own mind as to which law you want to follow - UK law in the UK and US law in the US, seem reasonable choices.Conspiracy in the United States
Conspiracy has been defined in the US as an agreement of two or more people to commit a crime, or to accomplish a legal end through illegal actions. [1][2]
1. http://definitions.uslegal.com/c/conspiracy/
2. http://www.lectlaw.com/def/c103.htm
For example, planning to rob a bank (an illegal act) to raise money for charity (a legal end) remains a criminal conspiracy because the parties agreed to use illegal means to accomplish the end goal. A conspiracy does not need to have been planned in secret to meet the definition of the crime. One legal dictionary, law.com, provides this useful example on the application of conspiracy law to an everyday sales transaction tainted by corruption. It shows how the law can handle both the criminal and the civil need for justice.
Conspiracy law usually does not require proof of specific intent by the defendants to injure any specific person to establish an illegal agreement. Instead, usually the law only requires the conspirators have agreed to engage in a certain illegal act. This is sometimes described as a "general intent" to violate the law.[A] scheme by a group of salesmen to sell used automobiles as new, could be prosecuted as a crime of fraud and conspiracy, and also allow a purchaser of an auto to sue for damages [in civil court] for the fraud and conspiracy.
In United States v. Shabani, 513 U.S. 10 (1994) the United States Supreme Court ruled: U.S. Congress intended to adopt the common law definition of conspiracy, which does not make the doing of any act other than the act of conspiring a condition of liability" at least insofar as to establish a violation of a narcotics conspiracy under 21 U.S.C. § 846. Therefore, the Government need not prove the commission of any overt acts in furtherance of those narcotics conspiracies prohibited by 21 U.S.C. § 846. The Shabani case illustrates that it is a matter of legislative prerogative whether to require an overt step, or not to require an overt step in any conspiracy statute. The court compares the need to prove an overt step to be criminally liable under the conspiracy provision of the Organized Crime Control Act of 1970, while there is no such requirement under 21 U.S.C. § 846.
The Supreme Court pointed out that common law did not require proof of an overt step, and the need to prove it for a federal conspiracy conviction requires Congress to specifically require proof of an overt step to accomplish the conspiracy. It is a legislative choice on a statute by statute basis.
The conspirators can be guilty even if they do not know the identity of the other members of the conspiracy. See United States v. Monroe, 73 F.3d 129 (7th Cir. 1995), aff'd., 124 F.3d 206 (7th Cir. 1997).
Take Care
Mike
Hey, I thought you said I won ...
JMM,
I will not dispute your research, and I was wrong to cite English common law, but it was your cite.
I only offer a counter-example. Based on your reading of the law two boxers could not agree to participate in a boxing match since this would amount to conspiracy to commit battery. Does not matter that the two adults consented.
Similarly, every time a doctor agrees to conducts a surgery, he is engaging in a conspiracy to commit assault.
"Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient‟s consent commits an assault, for which he is liable in damages. This is true, except in cases of emergency where the patient is unconscious, and where it is necessary to operate before consent can be obtained." Schloendorff v. Soc‟y of N.Y. Hosp., 105 N.E. 92, 93 (N.Y. 1914).
In my reading, conspiracy can only be committed where the underlying act is criminal regardless of consent. Examples previously cited were drugs (depending on type and locality), prostitution (depending on locality), gambling (depending on type and locality), and other "victimless" crimes. Those acts are criminal because they "victim" is society in general, hence the state interest in them.
But, I will admit I could be mistaken.
I must also admit that we are somewhat off topic. I only post because the arguments seemed specious.
As I stated earlier congress's power to decide whether or not homosexual conduct should be allowed in the military is based on a constitutional provision giving them the authority to regulate the land and naval forces. That grant of authority has been interpreted by the courts (under Article III of the constitution: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;") to be quite broad. see post #290.
Congress spoke. We make it happen.
Legally speaking, those that take issue with this always have the Lieutenant Watada option or, as one officer put it to me, they can resign or otherwise depart military service.
Last edited by TheCurmudgeon; 01-13-2011 at 03:28 PM.
"I can change almost anything ... but I can't change human nature."
Jon Osterman/Dr. Manhattan
---
Yes you are all off topic but it valid and important for a few reasons.
1) I'm sending my ethics and law students to read this thread.
2) There are only two groups of people who seem to care about the Constitution and law besides attorneys:
a) People who have sworn an oath to protect it
b) People bent on breaking it
3) The issue is directly related to the freedom of service members. If the argument turned against homosexuals based on the "act" then what other behaviors could be banned (out of wedlock sex, riding a motorcycle without a helmet, ownership of firearms or other weapons, right to adopt a foreign national)?
Sam Liles
Selil Blog
Don't forget to duck Secret Squirrel
The scholarship of teaching and learning results in equal hatred from latte leftists and cappuccino conservatives.
All opinions are mine and may or may not reflect those of my employer depending on the chance it might affect funding, politics, or the setting of the sun. As such these are my opinions you can get your own.
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