PDA

View Full Version : Legal Strict Constructionists: Was this judge out of line?


banyon
09-21-2008, 12:34 AM
Sagging Pants Ban Overturned

http://www.kfbk.com/cc-common/news/sections/newsarticle.html?feed=172730&article=4255711



A judge in Riviera Beach, Florida has ruled a law banning sagging pants is unconstitutional.
Wednesday, September 17, 2008

A 17 year old boy spent the night in jail last week after an officer said he spotted the teenager riding his bicycle with 4 to 5 inches of boxer shorts exposed.

Circuit Judge Paul Moyle ruled that the law was unconstitutional based on limited facts. However, the charge hasn't been dropped yet and a new arraignment is set for Oct. 5.

The law was voted on back in March. A first offense for sagging pants carries a $150 fine or community service, and habitual offenders face the possibility of jail time.

The boy's public defender, Carol Bickerstaff, said she wants the city to drop the law regardless of whether anyone dislikes low-riding pants. She also told the judge, "Your honor, we now have the fashion police

irishjayhawk
09-21-2008, 12:36 AM
I think in this sense "unconstitutional" is the legal way of saying stupid, subjective, and truthfully unenforceable. Also, he could have deemed it unconstitutional for cruel and unusual punishment ($150 or community service for saggy pants?).

banyon
09-21-2008, 12:36 AM
I think in this sense "unconstitutional" is the legal way of saying stupid, subjective, and truthfully unenforceable. Also, he could have deemed it unconstitutional for cruel and unusual punishment ($150 or community service for saggy pants?).

There's no law against stupid laws.

Direckshun
09-21-2008, 12:37 AM
Well I have to operate here with a basic set of assumptions:

1. Guys were wearing sagging pants, and there's nothing more to the story.

2. The law said "you no longer are allowed to sag your pants."

If this is the story as is, the law is straight-up unconstitutional. Sagging pants are a personal choice that any freedom-respecting justice should honor, to say nothing of a Republican Florida Congress.

irishjayhawk
09-21-2008, 12:37 AM
There's no law against stupid laws.

I know. I'm saying it's the legal way of saying it. Honestly, there's more merit to the second half of my statement.

Direckshun
09-21-2008, 12:37 AM
There's no law against stupid laws.

There actually is.

banyon
09-21-2008, 12:38 AM
No offense, but I don't think you guys qualify as strict constructionists.

banyon
09-21-2008, 12:39 AM
There actually is.

pray tell...

Direckshun
09-21-2008, 12:39 AM
No offense, but I don't think you guys qualify as strict constructionists.

No, I do not. Because strict constructionists do not believe the right to privacy exists.

I do. As does an overwhelming majority of the legal community, and the Supreme Court.

Direckshun
09-21-2008, 12:40 AM
pray tell...

In this instance, it's called the right to privacy.

banyon
09-21-2008, 12:41 AM
In this instance, it's called the right to privacy.

Oh, I meant laws because they are specifically stupid.

I know why I think it's unconstitutional, but I'm not a strict constructionist either.

irishjayhawk
09-21-2008, 12:41 AM
No offense, but I don't think you guys qualify as strict constructionists.

Some issues, yes. Some, no.

banyon
09-21-2008, 12:42 AM
Some issues, yes. Some, no.

What issues yes?

irishjayhawk
09-21-2008, 12:44 AM
What issues yes?

I can't think of any off hand. But I agree with a lot of what Ron Paul says on the topic of the constitution and getting back to it (to a degree).

Direckshun
09-21-2008, 12:46 AM
I can't think of any off hand. But I agree with a lot of what Ron Paul says on the topic of the constitution and getting back to it (to a degree).

Ron Paul basically wants to strip the Constitution of all implied powers.

banyon
09-21-2008, 12:48 AM
I can't think of any off hand. But I agree with a lot of what Ron Paul says on the topic of the constitution and getting back to it (to a degree).

Well we have diverged then my friend. I like some of Pauls ideas, particularly wrt Iraq and monetary reform, but his Constitutional ideas are incompatible with the idea of being a modern superpower in the world.

irishjayhawk
09-21-2008, 12:49 AM
Well we have diverged then my friend. I like some of Pauls ideas, particularly wrt Iraq and monetary reform, but his Constitutional ideas are incompatible with the idea of being a modern superpower in the world.

Well, I guess if you consider shrinking government going back to the constitution, we have diverged.

irishjayhawk
09-21-2008, 12:50 AM
Ron Paul basically wants to strip the Constitution of all implied powers.

Like I said, to a degree.

Direckshun
09-21-2008, 12:52 AM
Like I said, to a degree.

Eh. I think Paul talks a pretty good game on the Constitution, but the way he interprets it is so libertarian it's hard to call it "strict."

I don't know why "strict" is supposed to mean "no implied powers."

banyon
09-21-2008, 12:54 AM
Well, I guess if you consider shrinking government going back to the constitution, we have diverged.

I'm for cutting wasteful spending, as I have always been. But that's a far cry from saying "government shouldn't be able to do this or that for the general welfare".

Direckshun
09-21-2008, 12:55 AM
I'm for cutting wasteful spending, as I have always been. But that's a far cry from saying "government shouldn't be able to do this or that".

I think everybody's for cutting wasteful spending.

I don't even know what that's supposed to mean.

banyon
09-21-2008, 12:57 AM
I think everybody's for cutting wasteful spending.

I don't even know what that's supposed to mean.

You know that Ted Stevens is still a Senator, right?

irishjayhawk
09-21-2008, 12:59 AM
I'm for cutting wasteful spending, as I have always been. But that's a far cry from saying "government shouldn't be able to do this or that for the general welfare".

Well, let me give an example.

For example, the FDA back in the 70s/80s repealed a law set forth by Congress years earlier. Constitutionally, I don't believe they're able to do that. Those are the kinds of things I'd like to get back to.

Direckshun
09-21-2008, 12:59 AM
You know that Ted Stevens is still a Senator, right?

I don't mean "everybody" everybody. I mean everybody with a brain.

banyon
09-21-2008, 01:00 AM
Well, let me give an example.

For example, the FDA back in the 70s/80s repealed a law set forth by Congress years earlier. Constitutionally, I don't believe they're able to do that. Those are the kinds of things I'd like to get back to.

That doesn't make any sense to me. Regulations never trump statutes.

Do you have any more info on that?

Mr. Kotter
09-21-2008, 01:02 AM
If appealed, this ruling will be over-turned.

School dress codes, as long as the school acts reasonable....and the clothi8ng can reasonably be deemed to be (in any sense) disruptive, the courts have deferred to schools.

If Florida takes this into the federal courts, I think...this judge will be over-turned.

banyon
09-21-2008, 01:04 AM
I don't mean "everybody" everybody. I mean everybody with a brain.

I guess I mean I'm seriously dedicated to it.

i used to roll around in high school carrying around this book for a while.

They need to make a 2008 edition:

http://images.alibris.com/isbn/9780553371758.gif

There's all kinds of s*** that should not be happening in a free republican democracy.

It's one of the few sentiments that I never lost from when I was a far-right ideologue.

banyon
09-21-2008, 01:05 AM
If appealed, this ruling will be over-turned.

School dress codes, as long as the school acts reasonable....and the clothi8ng can reasonably be deemed to be (in any sense) disruptive, the courts have deferred to schools.

If Florida takes this into the federal courts, I think...this judge will be over-turned.

This is not a school dress code IIRC, it is a city ordinance.

You don't usually ride your bicycle by cops while you are in school.

Mr. Kotter
09-21-2008, 01:07 AM
Some of you guys need to read up on the case law....regarding school dress codes.

You appear to be allowing your liberal biases to color your views; case law is pretty clear on this....for high school students anyway.

While "first amendment" rights are not surrendered at the school house door as they say....reasonable actions to prevent disruptive or gang related dress have been upheld, repeatedly.

irishjayhawk
09-21-2008, 01:07 AM
That doesn't make any sense to me. Regulations never trump statutes.

Do you have any more info on that?

I came across it in the book I'm reading "In Defense of Food" by Michael Pollan.

It says:

The 1938 Food, Drug and Cosmetic Act imposed strict rules requiring that the word “imitation” appear on any food product that was, well, an imitation ... [And] the food industry [argued over the word], strenuously for decades, and in 1973 it finally succeeded in getting the imitation rule tossed out, a little-notice but momentous step that helped speed America down the path of nutritionism.

… The American Heart Association, eager to get Americans off saturated fats and onto vegetable oils (including hydrogenated vegetable oils), was actively encouraging the food industry to “modify” various foods to get the saturated fats and cholesterol out of them, and in the early seventies the association urged that “any existing and regulatory barriers to the marketing of such foods be removed.”

And so they were when, in 1973, the FDA (not, note, the Congress that wrote the law) simply repealed the 1938 rule concerning imitation foods. It buried the change in a set of new, seemingly consumer-friendly rules about nutrient labeling so that news of the imitation rule’s appeal did not appear until the twenty-seventh paragraph of The New York Times’ account, published under the headline F.D.A. PROPOSES SWEEPING CHANGE IN FOOD LABELING: NEW RULES DESIGNED TO GIVE CONSUMERS A BETTER IDEA OF NUTRITIONAL VALUE. ... The revised imitation rule held that as long as an imitation product was not “nutritionally inferior” to the natural food it sought to impersonate—as long as it had the same quantities of recongized nutrients—the imitation could be marketed without using the dreaded “i” word.


Unfortunately, nothing is footnoted in the book. Just the sources listed in the back, which is where I assume he'd have gotten it from.

irishjayhawk
09-21-2008, 01:08 AM
Some of you guys need to read up on the case law....regarding school dress codes.

You appear to be allowing your liberal biases to color your views; case law is pretty clear on this....for high school students anyway.

While "first amendment" rights are not surrendered at the school house door as they say....reasonable actions to prevent disruptive or gang related dress have been upheld, repeatedly.

:spock:

Where does it say "school"?

Mr. Kotter
09-21-2008, 01:10 AM
This is not a school dress code IIRC, it is a city ordinance.

You don't usually ride your bicycle by cops while you are in school.

Thanks. I just assumed it was a school case. I suspect, if it's not school grounds we are talking about....it will be much more difficult to over-turn; although, depending on circumstances (age, location, and specifics), it could still be argued (although even I would find it difficult to justify.)

Mr. Kotter
09-21-2008, 01:11 AM
:spock:

Where does it say "school"?

Sorry. I perused it quickly; bad assumption on my part. I've corrected myself.

banyon
09-21-2008, 01:11 AM
I came across it in the book I'm reading "In Defense of Food" by Michael Pollan.

It says:




Unfortunately, nothing is footnoted in the book. Just the sources listed in the back, which is where I assume he'd have gotten it from.

Well, I'm just guessing here, since I don't know what the regulation and corresponding statute in play actually said, but it sounds like the FDA issued a regulation that interpreted a word in the statute in a way to make enforcement more difficult. That happens all the time, and is a necessary component of having administrative agencies. Do they always make the right call? No. But Congress always has the power to strike down any regulation they don't lke by re-clarifying the matter more specifically (i.e., detting out a contrary definition of "imitation").

banyon
09-21-2008, 01:12 AM
Thanks. I just assumed it was a school case. I suspect, if it's not school grounds we are talking about....it will be much more difficult to over-turn; although, depending on circumstances (age, location, and specifics), it could still be argued (although even I would find it difficult to justify.)

Out of curiosity, have you yelled at any students to pull their pants up?

Mr. Kotter
09-21-2008, 01:14 AM
Out of curiosity, have you yelled at any students to pull their pants up?

Yelled? Define "yell?" ;)

Corrected, yes. Sent defiant "fight-da-man" types to the office for detention/suspension? Sure.

"Yell?" Not by my definition, anyway. Heh.

Direckshun
09-21-2008, 01:18 AM
You appear to be allowing your liberal biases to color your views.

Damn our liberal basic reading comprehension!

ROFL

God.

banyon
09-21-2008, 01:19 AM
Yelled? Define "yell?" ;)

Corrected, yes. Sent defiant "fight-da-man" types to the office for detention/suspension? Sure.

"Yell?" Not by my definition, anyway. Heh.

I just thought it probably had come up. :)

Mr. Kotter
09-21-2008, 01:25 AM
I just thought it probably had come up. :)

Oh, yeah.

FWIW, if you doubt the way "we" handle it, as opposed to a more "liberal" approach....

Compare our "incidents" of gang 'problems,' office referrrals, acts of violence, drug related offenses, and the like....to Sioux City.....a city quite similar in many ways to ours, and not significantly different demographically speaking than "us"....their "problems" are geometrically multiplied compared to ours....

Why? Attitudes. Proactive interventions.

:shake:

banyon
09-21-2008, 01:33 AM
Oh, yeah.

FWIW, if you doubt the way "we" handle it, as opposed to a more "liberal" approach....

Compare our "incidents" of gang 'problems,' office referrrals, acts of violence, drug related offenses, and the like....to Sioux City.....a city quite similar in many ways to ours, and not significantly different demographically speaking than "us"....their "problems" are geometrically multiplied compared to ours....

Why? Attitudes. Proactive interventions.

:shake:

Uh, I'm not familiar with your territory, but I'd be amazed if you had a bigger gang problem than Dodge City. So I know a little bit about it.

That being said, we need to radically change our approach and focus.

'Hamas' Jenkins
09-21-2008, 01:40 AM
Strict constructionists are like the Republican platform. They don't exist.

Mr. Kotter
09-21-2008, 01:42 AM
Uh, I'm not familiar with your territory, but I'd be amazed if you had a bigger gang problem than Dodge City. So I know a little bit about it.

That being said, we need to radically change our approach and focus.

If Dodge City has a problem, they could definitely learn some things from us. We were at the edge....with Sioux City, 10-15 years ago. They've gone one direction, we've gone the other. In short, they've got real serious problems....and we've even gotten our kids to buy into keeping that crap out of our schools (so far, so good.)

Mr. Kotter
09-21-2008, 01:43 AM
Strict constructionists are like the Republican platform. They don't exist.

Original intent/natural law types will suffice as "strict constructionist"....for the most part. ;)

'Hamas' Jenkins
09-21-2008, 01:45 AM
Original intent/natural law types will suffice as "strict constructionist"....for the most part. ;)

I have a pathetically low view of the justice department and judicial branch. Perhaps that is because of the current administration, but I just see them as voter-proofed ideologues.

Direckshun
09-21-2008, 01:45 AM
If Dodge City has a problem, they could definitely learn some things from us. We were at the edge....with Sioux City, 10-15 years ago. They've gone one direction, we've gone the other. In short, they've got real serious problems....and we've even gotten our kids to buy into keeping that crap out of our schools (so far, so good.)

I'm wondering if the source of the problem hasn't been gentlemen like yourself who "peruse" the facts of a case and then make unfair and inaccurate assumptions about those involved.

;)

Mr. Kotter
09-21-2008, 01:48 AM
I have a pathetically low view of the justice department and judicial branch. Perhaps that is because of the current administration, but I just see them as voter-proofed ideologues.

My "pathetically low view" currently resides with Congress. Heh.

Ironic, if unsurprisingly....I consider most partisan Dems to be ideologues.

Par for the course, I suppose.

Direckshun
09-21-2008, 01:49 AM
My "pathetically low view" currently resides with Congress. Heh.

Ironic, if unsurprisingly....I consider most partisan Dems to be ideologues.

Par for the course, I suppose.

Um... most partisan anybodies are ideologues.

That's almost always why they're partisan.

Mr. Kotter
09-21-2008, 01:49 AM
I'm wondering if the source of the problem hasn't been gentlemen like yourself who "peruse" the facts of a case and then make unfair and inaccurate assumptions about those involved.

;)

Well, if your administration....spends Saturday nights after some cocktails discussing their "problems," at a minimum I'd encourage them to revisit them on Monday or Tuesday of the next week.

Heh. :p

Mr. Kotter
09-21-2008, 01:51 AM
Um... most partisan anybodies are ideologues.

That's almost always why they're partisan.

True, if overly broad. But true, for the most part.

Some pathetic partisans are all about the "team" though; kinda like HS athletics. How sad, eh? :shrug:

There are quite a few from both sides around this joint. Heh.

Direckshun
09-21-2008, 01:53 AM
True, if overly broad.

"Overly broad"? I just said the exact same shit you just said.

Mr. Kotter
09-21-2008, 01:55 AM
"Overly broad"? I just said the exact same shit you just said.

"Exactly, Mr. Gibson? Word for word? Really? Are you really sure?"

Well....not really; just kinda. Heh.

'Hamas' Jenkins
09-21-2008, 02:00 AM
True, if overly broad. But true, for the most part.

Some pathetic partisans are all about the "team" though; kinda like HS athletics. How sad, eh? :shrug:

There are quite a few from both sides around this joint. Heh.

Given the extent of participation in my thread from yesterday by one side of the aisle....:harumph:

Direckshun
09-21-2008, 02:13 AM
Given the extent of participation in my thread from yesterday by one side of the aisle....:harumph:

Eeeeeeeeeeeeeeeeeeeeeeeeeeeeexactly.

After that thread, the liberals around this place should be applauded for their ability to wipe off the God-sheen from the candidate they support and think critically. The conservatives do not deserve the same praise.

BucEyedPea
09-21-2008, 08:08 AM
Ron Paul basically wants to strip the Constitution of all implied powers.

Link?

BTW, what is wrong with being an ideologue?

I think it just matters what the ideology is as to whether or not it's bad.

I've seen partisan moderates too. And partisan Indies. Its just issue by issue with them. It depends on how strongly you believe in what you're advocating or defending.

BucEyedPea
09-21-2008, 08:10 AM
No I don't see this as unConstitutional. I see this as falling under community standards apply which the SC has held up. So it should be kept at the local level. I can't see making a Federal issue out it. Pun intended!

But I also think it's a dumb law. So if the people there are offended they'll have to take the initiative and repeal it.

Baby Lee
09-21-2008, 08:21 AM
There's no law against stupid laws.

But there is a bit of a Vagueness Doctrine.

Bearcat2005
09-21-2008, 08:36 AM
No offense, but I don't think you guys qualify as strict constructionists.

First off this link has completely no details to the case so with my very limited knowledge of this case I will remark.


I fail to see your arguement. A strict constructionalist would uphold any local or state law as long as it did not violate the constitution, that is the arguement here not the sagging. Your point is? You don't have to be a strict construtionalist to do this. If you are trying to attack this particular form of constitutional interpretation you are doing a bad job.

Now for a judge to say its unconstitutional, the only arguement I find is that this "offense" is in violation of a state or community law. (The article was VERY vague with details). All the judge was doing was upholding current community or state laws. If people don't like the law they should petition against it and get a ballot started.

If this was a federal judge he is just upholding the 10th amendment.

IMO, if a kid wants to sag that is his personal choice. I have no problem with it as long as there is no public nudity taking place.

banyon
09-21-2008, 09:04 AM
No I don't see this as unConstitutional. I see this as falling under community standards apply which the SC has held up. So it should be kept at the local level. I can't see making a Federal issue out it. Pun intended!

But I also think it's a dumb law. So if the people there are offended they'll have to take the initiative and repeal it.

Where are community standards in the Constitution?

banyon
09-21-2008, 09:05 AM
But there is a bit of a Vagueness Doctrine.

Are you saying this law is vague?

(I'm really not sure if you're just pointing this out or trying to do 2 things at once with your post)

Baby Lee
09-21-2008, 09:15 AM
Are you saying this law is vague?

(I'm really not sure if you're just pointing this out or trying to do 2 things at once with your post)
First off, there's gonna be a lot of supposition, as this article has very little substance to go on.

But your posit was that there is no law against stupid laws.
I was pointing out that there is a line of Constitutional Review, derived from Due Process rights, that holds that laws cannot be so vague as to create undue confusion in the actor or the enforcer whether the action is a violation.
In that sense, there is a 'law' against laws that are so 'stupidly' crafted that they are unenforceable, or susceptible to selective enforcement.

And I'd guess that's what the judge herein is hanging his hat on. That this is an offshoot of prior vagrancy laws that law enforcement would use as a tool to selectively harass or weed out 'undesireables' without equal and fair application across the board.

banyon
09-21-2008, 09:17 AM
First off this link has completely no details to the case so with my very limited knowledge of this case I will remark.


I fail to see your arguement. A strict constructionalist would uphold any local or state law as long as it did not violate the constitution, that is the arguement here not the sagging. Your point is? You don't have to be a strict construtionalist to do this. If you are trying to attack this particular form of constitutional interpretation you are doing a bad job.

Of course not, upholding the law is easy in this case and didn't necessarily involve the Constitution.

Now for a judge to say its unconstitutional, the only arguement I find is that this "offense" is in violation of a state or community law. (The article was VERY vague with details). All the judge was doing was upholding current community or state laws. If people don't like the law they should petition against it and get a ballot started.

If this was a federal judge he is just upholding the 10th amendment.

IMO, if a kid wants to sag that is his personal choice. I have no problem with it as long as there is no public nudity taking place.

This article doesn't say he was upholding community standards or state laws. It says he found it unconstitutional, and absent more information that looks like the U.S. Constitution.

And being a federal judge has nothing to do with it. All judges, federal, state, and local have to comply with the U.S. Constitution. It is the supreme law of the land.

banyon
09-21-2008, 09:22 AM
A little more:

Judge: Riviera Beach 'saggy pants' ban unconstitutional
Click-2-Listen
By ELIOT KLEINBERG
http://www.palmbeachpost.com/localnews/content/local_news/epaper/2008/09/15/0912saggy.html
Palm Beach Post Staff Writer

Monday, September 15, 2008

RIVIERA BEACH — A judge says Riviera Beach's "saggy pants" law is unconstitutional in the case of a 17-year-old who spent a night in jail for having his underwear showing.

And a public defender said her office wants to get the law tossed altogether.


In Riviera Beach, a first offense carries a $150 fine or a requirement of community service.


Julius Hart was charged Wednesday when an officer spotted him riding his bicycle in the 2800 block of Lakeshore Drive with 4 to 5 inches of blue and black boxer shorts sticking out of his black pants.

A first offense carries a $150 fine or a requirement of community service; only habitual offenders face the possibility of jail time.

But, a report said, the charge against Hart meant a violation of his probation on a marijuana possession charge, so he went to jail.

"Somebody help me," Palm Beach Circuit Judge Paul Moyle said.

"We're not talking about exposure of buttocks. No! We're talking about someone who has on pants whose underwear are apparently visible to a police officer who then makes an arrest and the basis is he's then held overnight, no bond. No bond!" the judge exclaimed.

"Your honor, we now have the fashion police," public defender Carol Bickerstaff said. "Our office really does intend to appeal this ordinance, which we believe is totally unconstitutional."

Moyle ruled the law unconstitutional "based on the limited facts of this case." Instead of issuing bail, the judge released Hart on his own recognizance.

Asked how this will affect the law overall, Riviera Beach's city attorney deferred to the police legal counsel and the mayor, Bishop Thomas Masters. Masters referred calls to city spokeswoman Rose Anne Brown, who said the city hadn't yet seen the ruling and couldn't comment.

Technically, the charge is not yet dropped; a new arraignment is set for Oct. 5.

"The first time I saw this particular fashion, I disliked it, and then I realized I'm getting old," Bickerstaff told the judge.

"You can have Speedo underwear, which is way less than boxer shorts, and that is perfectly legal, but boxer shorts, with pants over them, is not?" Moyle asked.

Bickerstaff quipped, "It's like a Monty Python skit."

City voters had approved the law in March by a 72 percent tally, after Masters lobbied heavily for it, helping collect 4,769 signatures to put the measure on the ballot.

The saggy pants fad surfaced in jail, when juvenile offenders wore overly large prison garb that sagged, exposing their underwear. It later became a fashion statement among rappers and remains popular in urban communities across the country.

Baby Lee
09-21-2008, 09:26 AM
A little more:
"This is like totally unconstitutional!!??"

Unless the reporter is misrepresenting the situation, I think I may have already put more thought into this than the PD or Judge.

What I'm wondering is when you call for Strict Constructionists, are you asking for Original Intent reviewers of the Constitution, or those who would review criminal statutes under the Rule of Lenity? ;)

banyon
09-21-2008, 09:32 AM
First off, there's gonna be a lot of supposition, as this article has very little substance to go on.

But your posit was that there is no law against stupid laws.
I was pointing out that there is a line of Constitutional Review, derived from Due Process rights, that holds that laws cannot be so vague as to create undue confusion in the actor or the enforcer whether the action is a violation.
In that sense, there is a 'law' against laws that are so 'stupidly' crafted that they are unenforceable, or susceptible to selective enforcement.

And I'd guess that's what the judge herein is hanging his hat on. That this is an offshoot of prior vagrancy laws that law enforcement would use as a tool to selectively harass or weed out 'undesireables' without equal and fair application across the board.


As you may have guessed, I am familiar with the vagueness doctrine, but I would contend that it is a prohibition on laws that are too vague to be enforceable, not too stupid to be enforced.

There are still tons of laws on the books that aren't particularly vague, but are pretty stupid.

(edit- I can see a vagueness concern here)

BucEyedPea
09-21-2008, 09:39 AM
First off this link has completely no details to the case so with my very limited knowledge of this case I will remark.
Exactly.

IMO, if a kid wants to sag that is his personal choice. I have no problem with it as long as there is no public nudity taking place.
I had wondered if this law was aimed at those whose low riders exposed butt crack. If that was the case and they were out in public then I say the local people can set their own standards regarding public decency.

How is that any different than a zoning board passing rules involving aesthetic restrictions?

I wouldn't want to be forced to look at male butt crack. It's bad enough when a repair working in my home has it. ROFL

Baby Lee
09-21-2008, 09:40 AM
As you may have guessed, I am familiar with the vagueness doctrine, but I would contend that it is a prohibition on laws that are too vague to be enforceable, not too stupid to be enforced.

There are still tons of laws on the books that aren't particularly vague, but are pretty stupid.

(edit- I can see a vagueness concern here)

So when you posted

There's no law against stupid laws.

You meant, there's no law against every single form of stupid law.

banyon
09-21-2008, 09:45 AM
What I'm wondering is when you call for Strict Constructionists, are you asking for Original Intent reviewers of the Constitution, or those who would review criminal statutes under the Rule of Lenity? ;)

I'm asking for people who demand a literal narrow view of the Constitution to determine if they could strike down this law and on what basis.

But for the sake of argument, and based on the info in the second article I found, I will submit that there could be a vaguenes concern here with the issues the judge raised regarding speedos, etc. So for argument's sake let's assume that there arent' any vagueness concerns (i.e., that the law had also prohiited evenly speedos, any exterior failure and exposure of underwear or swimwear off a beach).

banyon
09-21-2008, 09:46 AM
Exactly.


I had wondered if this law was aimed at those whose low riders exposed butt crack. If that was the case and they were out in public then I say the local people can set their own standards regarding public decency.


It's not for you to say, it's for the Constitution to say.

BucEyedPea
09-21-2008, 09:47 AM
I can't see all of the posts in here but I can see a few quotes.

I wasn't trying to imply that a law that is stupid should not be enforced.
JMO that it was dumb.

banyon
09-21-2008, 09:50 AM
Why post in someone's thread you have on ignore? :spock:

Baby Lee
09-21-2008, 09:51 AM
I'm asking for people who demand a literal narrow view of the Constitution to determine if they could strike down this law and on what basis.

But for the sake of argument, and based on the info in the second article I found, I will submit that there could be a vaguenes concern here with the issues the judge raised regarding speedos, etc. So for argument's sake let's assume that there arent' any vagueness concerns (i.e., that the law had also prohiited evenly speedos, any exterior failure and exposure of underwear or swimwear off a beach).

Well I guess that analysis would probably hearken back to the Warren Court's derivation of fundamental rights and interests inherent in Due Process, as opposed to applying Due Process to another right or interest already expressly laid out in the Constitution.

So do you see this as unConstitutional simply because it violates Due Process, or is a free expression or like protection also being violated?

I really don't have enough information to process right now.

banyon
09-21-2008, 10:06 AM
So do you see this as unConstitutional simply because it violates Due Process, or is a free expression or like protection also being violated?

I really don't have enough information to process right now.

I think it's a fundamental right to dress how you want, so I think your substantive due process argument makes sense. I'd analogize it to the German language case or Skinner with prisoners getting sterilized.

I don't think it's speech, so I would not afford it 1st amendment protection.

Of course, these are not arguments available to strict constructionists.

Sully
09-21-2008, 10:08 AM
I think it's a fundamental right to dress how you want, so I think your substantive due process argument makes sense. I'd analogize it to the German language case or Skinner with prisoners getting sterilized.

I don't think it's speech, so I would not afford it 1st amendment protection.

Of course, these are not arguments available to strict constructionists.

WHy isn't it speech?

BucEyedPea
09-21-2008, 10:09 AM
I don't think it's a fundamental right to dress how you want as an absolute.
Not in public.

Anyhow the Constitution, is written primarily as a restraint on the Federal govt.
The Federal govt did not pass any law restricting the right to dress. It's not their domain.
At least not from a strict constructionist/originalist pov.

banyon
09-21-2008, 10:10 AM
WHy isn't it speech?

What's he saying?

Sully
09-21-2008, 10:11 AM
What's he saying?

Is that how the courts define speech?

(if it seems I'm being a smart ass, I'm not... this is some stuff I'm very curious about).

Baby Lee
09-21-2008, 10:14 AM
WHy isn't it speech?

It may be speech, but it might not be protected speech.
Walking down main street with your balls hanging out might be speech, but does anyone dispute a locality's right to regulate this fairly and equally.

The problem here appears to be that this is so vague as to afford the individual no insight into whether he is in violation or not, and concomtiantly afford law enforcement to window to justify after the fact selective enforcement.

irishjayhawk
09-21-2008, 10:14 AM
What's he saying?

Flag burning isn't necessarily saying anything.


(I agree with you in this instance, but it's a slippery slope. Actually, come to think of it, if he could say it was a statement reflecting the views of the saggy pants group which has political statements, wouldn't that be the same as them saying you can't wear a McCain 08 shirt or something?

irishjayhawk
09-21-2008, 10:15 AM
It may be speech, but it might not be protected speech.
Walking down main street with your balls hanging out might be speech, but does anyone dispute a locality's right to regulate this fairly and equally.

The problem here appears to be that this is so vague as to afford the individual no insight into whether he is in violation or not, and concomtiantly afford law enforcement to window to justify after the fact selective enforcement.

Have nudists ever gone to court on those grounds?

I'm genuinely interested in seeing the outcome.

banyon
09-21-2008, 10:17 AM
Is that how the courts define speech?

(if it seems I'm being a smart ass, I'm not... this is some stuff I'm very curious about).

The idea here is that you are expressing an idea political, commercial, artistic, etc. I'm not sure that saggy pants, by itself expresses any idea.

Sully
09-21-2008, 10:18 AM
The idea here is that you are expressing an idea political, commercial, artistic, etc. I'm not sure that saggy pants, by itself expresses any idea.

SO if a guy could make a legitimate case that his saggy pants fell into one of those categories, it "could" be speech?

banyon
09-21-2008, 10:20 AM
Flag burning isn't necessarily saying anything.


(I agree with you in this instance, but it's a slippery slope. Actually, come to think of it, if he could say it was a statement reflecting the views of the saggy pants group which has political statements, wouldn't that be the same as them saying you can't wear a McCain 08 shirt or something?

Flag burning as part of an assembly is most certainly saying something. If you are using it to kindle you firewood, then probably not.

Slippery slopes are fallacies. Societies have to draw lines or standards and rules are rendered unworkable.

Baby Lee
09-21-2008, 10:21 AM
Have nudists ever gone to court on those grounds?

I'm genuinely interested in seeing the outcome.


Seeing as you're genuinely interested, I'll give you a springboard to self edification, instead of outlining the broad strokes for you

http://www.nudistlaw.com/

Hydrae
09-21-2008, 10:55 AM
:hmmm: Is it illegal to walk around in your underwear if you so choose? As in, exposing the entirety of a pair of boxers sans pants at all. How about a woman with only a bra on the upper half of the body? How could you enforce that and show that the garment being worn is a bra and not a swim top? I think this law is simply unenforceable.

ClevelandBronco
09-21-2008, 11:19 AM
...Circuit Judge Paul Moyle ruled that the law was unconstitutional based on limited facts...

Without the benefit of reading the gentleman's opinion, I can't imagine why anyone has a "Constitutional right" to display the crack of his ass if a state or municipality has legislated otherwise.

BucEyedPea
09-21-2008, 01:28 PM
Seeing as you're genuinely interested, I'll give you a springboard to self edification, instead of outlining the broad strokes for you

http://www.nudistlaw.com/
The Daytona decision I do not see as being formed on a strict construction/originalist interpretation as the context for this thread. It's based on that dayum 14th Amendment incorporation which expands Federal power. So it's based on the living document pov for interpretation. This results in more centralization something which carries it's own threats to liberty. Local communities, states also have rights—not just individuals. Then there are different kinds of rights. Not all are fundamental or absolute. Some are relative.

The Pedestrian
09-21-2008, 02:03 PM
By strict construction, the only way you could rule it unconstitutional is under the restriction against "excessive bail and fines"... Seriously, $20-50 is reasonable and makes much more money for the State. On the other hand, some states are allowed to have anti-dumping laws that range from $10,000 to $50,000, so maybe this could be perfectly fine.

Now if you want to look at the Constitution loosely, you MIGHT be able to make an argument for "freedom of expression"...of course, even that's a really weak argument.