What are the Powers / Limitations of Congress?

Originally posted by hotpinkurinalmint
reply to post by Jean Paul Zodeaux

 

Just because one declares something a "right" and is not harming a soul, it does not mean their "right" is protected by the constitution. If two consenting adults wish to exchange money for sexual favors, rather than gratuitously exchanging sexual favors, they are not harming a soul. This "right" to exchange sexual favors for money, is not constitutionally protected.

Just because legislatures decided to pass a bill declaring such an act "illegal" doesn't make it law. Legislation gets repealed and court rulings overturned. You are sidestepping the 9th Amendment, and while there may not be any SCOTUS ruling declaring prostitution a right, the people need not wait for such a ruling, and if they so choose can, as members of the jury, can refuse to convict someone for this legislated "crime". If someone believes it is their right to contract for sex, and is then arrested for doing so, they would be well advised to find competent assistance of counsel that would zealously advocate that right, instead of allowing that counsel to lecture them about what is and isn't enumerated in the Bill of Rights.

[edit on 19-5-2010 by Jean Paul Zodeaux]

reply to post by Jean Paul Zodeaux


Jury nullification is not a tactic one should rely upon when they are being tried under a criminal charge that is arguably unconstitutional. What if for one reason or another, someone is convicted of prostitution by the jury. That person cannot appeal their case to the Supreme Court saying that one of the unenumerated rights the 9th amendment protects is the right to engage in prostitution.

On the other hand, if the person is convicted of getting an early term abortion or sodomy (with another consenting adult) , the case law says the Constitution protects ones right to get an early term abortion or engage in sodomy with a consenting adult.

Here is where the case law on the Constitution seems to get murky. The Constitution is a very brief document, yet the courts have the need to apply it to numerous situations. In the process they amplify and distinguish the case law in ways that take it in unpredictable directions. The courts also rely heavily on policy arguments in Constitutional law that also take the case law to strange places.

reply to post by hotpinkurinalmint


"Jury nullification" is a term coined by legal professionals who spend far more time extending each other professional courtesy than they do zealously advocating the rights of the people. In terms of not being able to appeal, if a judge gave the jury stern warnings, using pejoratives such as "jury nullification" and insisted that the legislation making this defendant a criminal is the law, and that the jury must obey that law, while at the same time dismissing the 9th Amendment, that could fairly be construed as a directed verdict, and as such wholly appeal-able.

It is also because of the unpredictability of the courts themselves that you mention, that perhaps the strongest defense is to convince a jury to acquit. There is a reason that due process of law demands a jury be afforded a defendant charged with a felony, and I suspect it lies in the faith of the wisdom of the people. Our President claims to be a Constitutional scholar, but didn't seem to understand at all the principle behind Citizens United v FEC. That sort of attitude does not bode well for Constitutional scholars. If the Constitution won't be construed heavily in favor of protecting the rights of people, and is instead construed heavily in favor of finding loopholes around the Bill of Rights, then what good is that Constitution?