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Nov 06 2012

Fischer’s Ignorance of Constitutional Law

In a blog post on the AFA website, Bryan Fischer displays the typical right-wing ignorance of how the constitution works. The post is about Lawrence v Texas, the case that overturned state anti-sodomy laws in 2003. There’s a lot of ignorance here, beginning with this:

Anthony Kennedy wrote the infamous Lawrence v. Texas decision that made laws against sodomy unenforceable in America. The Court issued this egregious display of arrogant and immoral judicial activism despite the fact that sodomy had been a criminal offense in all 50 States until 1961 and was still against the law in 24 States and the District of Columbia when the Lawrence decision was issued.

So in one fell swoop the Court deprived almost half the Union of the right to self-governance through their elected representatives, the essence of a republican form of government, and imposed its own twisted version of morality on the entire country. And here we thought imposing your values on others was supposed to be bad! Silly us for believing that swill.

For Fischer, and for many conservatives, rights belong to groups of people, not individuals. Individuals don’t have a right to live their own life according to the dictates of their conscience as long as they don’t harm another person or deprive them of their equal rights, which is the Jeffersonian view; groups of people — local communities or the majority of state and federal voters — have the “right” to tell individuals what to do even if the actions of those individuals don’t affect them in any way.

No, you can read the Constitution from front to back, back to front, upside down, from right to left and hanging from a chandelier and you will find no mention whatsoever of any right to engage in sodomy. You won’t find it because it’s not there. It simply does not exist as a constitutional right, no matter what the fevered brains of six black-robed tyrants said in 2003.

You know what else you won’t find? Lots of rights that Bryan Fischer would scream bloody murder if the government did away with them. Does Fischer think he has the right to travel freely within the country, to visit family or make speeches? You can read the constitution from front to back, upside down, from right to left and hanging from a chandelier and you will find no mention whatsoever of any right to travel freely within the country. Corfield v. Coryell and Paul v Virginia were obviously “egregious displays of arrogant and immoral judicial activism,” right?

Does he think parents have the right to send their children to a private religious school or homeschool them? You can read the constitution from front to back, upside down, from right to left and hanging from a chandelier and you will find no mention whatsoever of any right to do so. Pierce v Society of Sisters must have been wrong then, right? Of course not. Because Fischer is engaged in special pleading. He only applies his argument, and states it with such outrage and passion, when it involves results he doesn’t like.

He’s not really opposed to the court protecting unenumerated rights in general, only when they prevent him from imposing his religious beliefs on others. But his argument is not specific to such cases, it pretends to be against the very idea of protecting such rights. To be slightly less technical, he’s full of shit.

26 comments

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  1. 1
    DaveL

    For Fischer, and for many conservatives, rights belong to groups of people, not individuals.

    Even worse, I’d say most conservatives conceptualize rights as a black and white, either/or proposition. Either one “has rights” or one has none. They see rights as something granted to a group by a majority of rights-havers as recognition of that majority’s general approval of said group. I can’t tell you how many times a shocked conservative has asked whether I think criminals or illegal aliens “should have rights.”

    Individuals don’t have a right to live their own life according to the dictates of their conscience as long as they don’t harm another person or deprive them of their equal rights, which is the Jeffersonian view; groups of people — local communities or the majority of state and federal voters — have the “right” to tell individuals what to do even if the actions of those individuals don’t affect them in any way.

    Would that be the “Borkian” view?

  2. 2
    =8)-DX

    “front to back, back to front, upside down, from right to left and hanging from a chandelier”

    Is this the “any sexual position is possible” argument against sodomy? That sentence almost got me in a sweat when my mind filled in all the other things that one could try without mentioning sodomy.

  3. 3
    thisisaturingtest

    They also seem absolutely wedded to the idea that “rights” is some sort of zero-sum game; that there are only so many floating around out there, and granting that one given group has certain rights means taking away from the rights of another given group. They can’t see rights as infinitely additive, so that the more rights everyone has, the more there are; they can only see them as subtractive, negative things when it’s not their rights.

  4. 4
    Kevin, Youhao Huo Mao

    To Conserva-Fundies like Fischer:

    Anything the SCotUS says that I agree with is within the proper limits according to the Constitution.

    Anything the SCotUS says that I disagree with is unconstitutional rule from the bench.

  5. 5
    slc1

    Definition of judicial activism: I don’t agree with the court’s decision.

  6. 6
    dingojack

    Fischer – *ahem*

    “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”.

    Dingo

  7. 7
    dogmeat

    Does Fischer think he has the right to …[edit] … or make speeches?

    Umm, Ed, I’d say the 1st amendment covers this one. Point taken on the rest.

  8. 8
    Gretchen

    For Fischer, and for many conservatives, rights belong to groups of people, not individuals. Individuals don’t have a right to live their own life according to the dictates of their conscience as long as they don’t harm another person or deprive them of their equal rights, which is the Jeffersonian view; groups of people — local communities or the majority of state and federal voters — have the “right” to tell individuals what to do even if the actions of those individuals don’t affect them in any way.

    That’s the only interpretation which makes describing Lawrence v. Texas as the Court imposing its morality on the rest of us make any sense at all– it imposes on the “right” of disapproving majorities to criminalize behavior of minorities which they consider immoral, no matter how personal, private, and consensual that behavior is.

    If you don’t look at it that way, you’re stuck wondering whether Bryan Fischer thinks Lawrence v. Texas made sodomy mandatory.

  9. 9
    Aliasalpha

    So it was criminal all over the country until 1961, then at some point, 26 of the states decriminalised it and then texas did it too. Why was texas the one worth screaming about?

  10. 10
    Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden

    @ thisisaturingtest #3
    (btw: great name…unless I’ve been duped. In which case, what a mechanically precise descriptor!)

    Rights aren’t necessarily additive. The right not to be fired for one’s skin’s melanin content is a duty on the behalf of those who make hiring/firing decisions NOT to fire someone over melanin. The freedom of one person to work without regard to color of skin is a constraint on another, who must not make employment decisions on the basis of skin color.

    Rights are always paired with duties.

    Now, employers benefited from a shift in culture to more and more ability-based employment and away from sex/race-based employment. The shift isn’t complete, but the more that shift happens, the better off are employers.

    So they get a mixed up & down result, while all employees get an upside. Society is much better off, but nonetheless a duty is imposed to make the right meaningful.

    Of course, the duty isn’t onerous unless one really, really wants to discriminate on the basis of skin color [or sex, etc.]. But it is there. So that’s not an irrational view. It’s just a horrifically racist, sexist, heterosexist, trans oppressive, ableist, classist, christian-supremacist view.

  11. 11
    Gretchen

    Aliasalpha said:

    So it was criminal all over the country until 1961, then at some point, 26 of the states decriminalised it and then texas did it too. Why was texas the one worth screaming about?

    Texas– and all other states where it was currently illegal– decriminalized sodomy because the Supreme Court made them via Lawrence v. Texas in 2003. That was the case which came before the Court and gave them the opportunity to decide whether anti-sodomy laws are Constitutional. The Court decided that they aren’t. It could have been a case from any state where sodomy was against the law at the time, but it happened to be Texas.

  12. 12
    coleopteron

    @Dingojack and Dogmeat

    I believe Ed was referring to travelling “freely within the country” in order to make speeches as being the “unconstitutional” right in the Fischerverse, rather than the speeches themselves.

  13. 13
    Gregory in Seattle

    @dogmeat – Only indirectly.

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    One has freedom of speech, but not necessarily freedom to speak in public. Our right to preach on street corners is implied by the Constitution, but not expressly granted. Exactly like a woman’s right to control her own body or the right not to be persecuted for private, mutually consensual sex.

  14. 14
    timgueguen

    I wonder if Fischer has ever engaged in a sex act that would have seen him prosecuted under those sodomy laws if he was caught. He’s married, and unfortunately has two kids, so he’s had some sort of sex.

  15. 15
    eric

    For Fischer, and for many conservatives, rights belong to groups of people, not individuals

    I’d say that unfortunately, SCOTUS’ opinion may be swinging bact towards collective rights in a far-reaching manner. The Court’s 2010 defense of “corporate personhood” is pretty analogous to the idea of state and community personhood, and therefore state and community rights. I’m not saying they are thinking that way right this second, but recent rulings seem to be setting up precedents that could favor collective rights over individual rights if the court wanted to go there in the future.

  16. 16
    eric

    Ah, the 2005 eminent domain case would be another example of favoring collective/community rights over individual ones.

  17. 17
    dmcclean

    Gregory @13,
    I believe you may be forgetting that there is an enumerated right “peaceably to assemble”, which seems to me to explicitly guarantee a freedom to be in public before a group of listeners. Coupled with freedom of speech, this is an explicit guarantee of a freedom to speak in public.

  18. 18
    dingojack

    coleopteron (#12) – ????
    Gregory in Seattle (#13) – The 9th covers all rights not expressly in the constitution, unbeknownst to Fischer.
    Dingo

  19. 19
    matty1

    He’s married, and unfortunately has two kids, so he’s had some sort of sex.

    I heard it was “front to back, back to front, upside down, from right to left and hanging from a chandelier”

  20. 20
    baal

    @15 – Gretchen

    Sodomy laws are still on the books in a number of places. Merely being ruled unconstitutional doesn’t always carry with it an affirmative order to a legislature to change the code. The impact comes in what the police will arrest you for and whether or not the judge will let you out when arrested.

    Fwiw, adultery laws aren’t binding either (unless you’re in the military) but are on the books. My wife reminded me of this one today (that’s a different story).

    @OP – Early in college, the stories of gay guys being arrested, in flagrante delicto, and put in jail was really my first time considering gay rights. It struck me as bizarre and pointless for some 3rd party to concern themselves with 3rd party non-harmful acts let alone make them criminal or going word salad about the constitutionality of said acts. There are enough real problems that need time and consideration. Being distracted and having to deal with folks like Fischere is a tax on the well being of everyone else.

  21. 21
    elpayaso

    Baal is 100% correct here. the “homosexual conduct” (another area where Fischer is, uh, factually challenged…..hetero sodomy was A-ok) statute still appeared in the TX penal code for at least several years after Lawrence, altho West Publishing inserted a note referencing Lawrence after it

  22. 22
    thisisaturingtest

    @#10, Crip Dyke, MQ, Right Reverend Feminist FuckToy of Death & Her Handmaiden:
    Glad you like the handle. But I’m not getting what you mean by “mechanically precise descriptor”; it’s my actual last name- longest name in our local phone book- and any resemblance to an actual phrase is purely coincidental.*
    Great point about rights being tied to a duty to respect them. I wasn’t really meaning “additive” in any technical sense, though; I meant it only as sort of a loose metaphor in opposition to Fischer’s apparent belief that the court’s decision in Lawrence v. Texas somehow “deprived almost half the Union” of some right they had (or he imagined they had).
    BTW- this

    And here we thought imposing your values on others was supposed to be bad!

    strikes me as the sort of thing that wins folks Fischer awards.

    *Ok, kidding. It just struck me as a good and appropriate handle for Internet conversations.

  23. 23
    Sastra

    … groups of people — local communities or the majority of state and federal voters — have the “right” to tell individuals what to do even if the actions of those individuals don’t affect them in any way.

    Yes, and this fits into what I call the “My-Country-Is-My-Home” mentality, which seeks to understand national issues by reducing them down into being just like domestic issues. The God-fearing majority is like the home owner or parent. Everyone else is classified into a category such as guest, relative, or child. MY house, MY rules. If you don’t like it, you can leave.

    The problems shrink too, so that complex issues are no more difficult than telling your lazy brother-in-law on the couch to get a job or explaining to your child’s visiting friends that in THIS house we pray before meals. If gay guests make you uncomfortable, then they have an obligation to the host to stay off uncomfortable topics and not sin while under their roof. No reason necessary. After all, whose home is it?

    Figuring out what the law ought to be for the country as a whole becomes easier, because it’s familiar. You can use your own experiences. Very useful.

  24. 24
    Nepenthe

    Jesus Christ matty1, some of us just ate lunch!

  25. 25
    zmidponk

    Am I missing something here, or does Fischer’s argument mean that, in America, you are not permitted to do anything whatsoever unless there is some kind of law or legal document specifically granting you the right to do it? This would kind of make this whole ‘land of the free’ thing utter bullshit.

  26. 26
    billdaniels

    The sodomy laws were most often used against gay men. Because of the stimga attached to being gay, few gay men wanted the publicity a court fight would produce. It would have been a hard, long fight. The Supreme Court ruled for sodomy laws in 1986 (Bowers v. Hardwick). That ruling was overturned with Lawrence.

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