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When Ted Cruz was the Solicitor General in Texas, his office argued the following before the U.S. Fifth Circuit Court of Appeals:

“There is no substantive-due-process right to stimulate one’s genitals for non-medical purposes unrelated to procreation or outside of an interpersonal relationship.”

26 thoughts on “Only in Texas

  1. So if you can only have five dildos together at any one time, then that means Greg Abbott can only own four

  2. Why do liberals struggle so much with law, order, and punishment? If you don’t like the laws then change them. Put away your little signs, vagina hats, and marching shoes and go do something useful.

    1. Oh come on, man. Where’s your usual outrage at the big-government boot on your neck, their gazpacho tactics…or are you in the pocket of Big Dildo?

      1. Two things. One, notice the shift from Scalia’s “original intent” to Coney Barrett’s “original text”. It’s clear, as it was from the start, really, that the stupendous amount of wiggle room in the application of such principles, so-called, is what I like to call (lately), horseshit.

        Two, “freedom” is a framing that everyone seems to agree on. But, freedom for whom? What most of us here insist on is, for everyone. What a lot of Americans adhere to, at least in effect, is really, for an imagined (delusional) Wild West character. (A fantasy.)

        That character being, a young, single, white male. A guy in a situation where he can do whatever he wants, all the time. IOW, the freedom of a select few to drink, rape, rob, kill, & destroy property. Everyone else can go to hell.

        I mention this, because it’s in this framing, that a man’s absolute right to unlimited guns… But a woman’s right to not be beaten up or beaten down… Generally, any right to the same agency, autonomy over her own body, as that fantasy character, is simply not applicable…

        In this framing, there’s no cognitive dissonance. The contradiction goes away. Suddenly, it all… Just makes sense.

  3. The key word is “own”. I’m starting a dildo rental operation in Texas and I’m going to be rich!

    1. But you’ll only have 5 to rent, unless you’re out of state. That’s why Mexico and Oklahoma, Arkansas, Louisiana, and New Mexico have so many dildo stores on the border, along with fireworks. Just don’t get them mixed up.
      When dildoes are outlawed, only outlaws will have dildoes

    2. The problem is that YOU, the business owner, can only own five if you are inside of Texas, so your customers will find some empty shelves unless you can figure out how to lease them from an out-of-state supplier.

      I think that will cut too deeply into your Rent-a-Dick profit margin.

    3. The problem is that YOU, the business owner, can only own five if you are inside of Texas, so your customers will find some empty shelves unless you can figure out how to lease them from an out-of-state supplier.

      I think it will cut too deeply into your Rent-a-Dick profit margin, and it will also become impossibly difficult to market if it becomes Rent-a-Rented-Dick.

  4. Texas is the best place to live in the world.

    But occasionally, they revert back to 1841.

    True story: some friends opened a bar in the famous, historic Deep Ellum district in Dallas a couple of years ago, just before the pandemic.

    They thought they had everything in order, and set an opening weekend.

    Opening Friday came and there was a hitch: they missed the “Dance Hall Permit” they needed from the city. It was after hours, so they couldn’t file and receive one till Monday AM.

    For two nights in a row, a guy in the employ of the city stood in the bar and, I swear I’m not making this up, made sure nobody danced. This was sometime in 2018 or 19, Dallas, TX. 21st century America. Couldn’t do it. No dancing.

    Nothing about safety or insurance or anything else was in question. They lacked their dancing permit and by God the city would NOT HAVE IT.

    Monday morning they turned in the paperwork, got their permit, and dancing was allowed. I’m not sure if the pope was involved, or if they had to file for a separate heavy petting license.

    Don’t even get me started about how Dallas County was DRY until a few years ago, and to this day you can only buy alcohol outside of bars and restaurants at liquor stores, which are only open until 9pm weekdays and Saturday. Beer and wine only at groceries and gas stations.

    1. In both Canada and the United states, it is legal for communities/counties to vote themselves to be ‘dry’ because there are obvious harms to the community caused by alcohol. I’m not for prohibition, but if I lived in a community with a serious disorderly conduct problem, I’d probably petition for a vote in favor of local prohibition.

      1. That would probably be a mistake. It’s based on the fallacious concept that there is a strong relationship between the availability of alcohol and its consumption. In reality, drunks gonna drink. In fact, they are going to drink about the same amount, irrespective of laws. Booze is not like, let’s say, eggs. If you take away people’s easy access to eggs, they consume less. Ditto with most products that are not psychologically or physically addictive. Studies have shown, however, that the easy availability of alcohol has only a minimal impact on its consumption.

        Drunks gonna drink.

        When a county or community bans alcohol, it simply means that drunks have to drive farther to get their drinks. And that means more drunken drivers on the road for longer times.

        That’s kind of bad if they buy their booze from retail outlets, but it’s not too bad, because people that buy booze at retail generally drink it at home, and rarely need to drive drunk for a refill. Where localized prohibition is really harmful is when the people who drink in bars have to drive farther to get there. Then instead of driving home two miles drunk, they might have to drive twenty or thirty miles drunk, exponentially increasing the likelihood that they kill you or your children.

        Or themselves.

        “Themselves” might be considered a silver lining. If drunk drivers could somehow only hurt or kill themselves, I’d consider joining anti-MADD. (MFDD?)

        Another silver lining of sorts is that the bars and restaurants just across the border in the nearest wet community receive an economic windfall. So if a community’s chamber of commerce is really smart, they would trick an adjoining community into voting “dry.”

        1. Excellent point, Scoopy. How often we do one thing expecting a certain result, and then the exact opposite happens. We should come up with a term for that.

    2. Lived in Texas for 8:yrs…came to the conclusion that it was pretty much a shithole. Too many people there like Ted Cruz who I knew socially.

    3. I read “Texas is the best place…” as sarcasm. It’s preposterous bc both unassailable & indefensible.

      The best place is the worst place. If you’re not living your life right there, wherever you are, you’re doing it wrong. If you can, move. Always remember, as a revered figure in my past used to advise: “If you don’t know where you’re going… Don’t go there.”

  5. ‘Substantive due process’ is based on the 14th Amendment due process and equal rights protections.

    There are several points here that all fit together, I’m not sure the order to write them in:

    1.It placed into the Constitution the concept of Judicial Review that the U.S Supreme Court had taken upon itself even prior to the passage of the 14th Amendment.

    2.Judicial Review is the ability of the courts to invalidate a law wherein the Court decides that the legislature/government could not establish that the law was preventing a harm (to individuals or to society collectively.) In that case, it is argued that the law is arbitrary.

    3.Using the courts to protect citizens from the passage of arbitrary laws is what, as I stated above, is referred to as due process and equal protection.

    4.It is a myth that the English Magna Carta in the 13th Century was a precursor to democracy, but it did establish the principle in jurisprudence of invalidating the passage of arbitrary laws through these concepts of due process and equal protection.

    5.There is a tension between the Courts and Legislatures over this. In principle, legislatures and their supporters believe that the public should be able to pass whatever laws they want that have popular support, while courts and their supporters believe that the courts should strike down arbitrary laws. The term ‘substantial’ indicates that, as Ted Cruz is arguing here, that the Courts should only strike down legislation that is regarded as a major violation of due process and equal protection.

    6.This is where it gets interesting for me, given that conservatives go on about the importance of the text of the Constitution and all that good stuff. This is what the 14th Amendment actually says:

    “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.”

    Notice something missing? At no point here does the 14th Amendment say that the courts should strike down only ‘substantive’ violations of due process and equal protection.

    Yet, whenever right wing legalists bring up due process, they’ll automatically add the word ‘substantive’ as if it’s in the 14th Amendment.

    To be sure, it isn’t just right wing legalists, law textbooks all refer to ‘substantive due process.’ However, if the Fascist Federalist Society jurists and other right wingers are going to be dogmatic about ‘originalism,’ the word ‘substantive’ is not in the 14th Amendment. If the writers of the 14th Amendment had meant for it to be there, I’m sure it would not have been a problem as it would have required adding just one word.

    1. To continue on from this, this is why it’s a lie when right wingers argue that there is no right to privacy in the Constution. Of course, if a majority of U.S Supreme Court justices on any given day say there is no right to privacy, then there is no right to privacy, but, inherently, since the 14th Amendment Due Process and Equal Protection clause is supposed to strike down laws where government can not establish before the courts the need for the law in how it prevents harm to individuals or to the community, it should establish a right for people to make private decisions (or legally, privacy.)

      So, due process and equal protection imply a right to privacy. There is no meaning to due process and equal protection if it does not establish a right to privacy. This is true of people’s ability to buy dildos as it should be true of preventing, in the Woody Allen movie Bananas, a dictator from doing this:
      “all citizens will be required to change their underwear every half-hour. Underwear will be worn on the outside so we can check.”

      As it should protect the right to an abortion during at least the first trimester when the fetus can not credibly be argued to be considered a human capable of suffering harm. This is why, contrary to the lies of those on the right, Roe V Wade was both a very well written judgement, and why it was brilliantly argued in following reason as well as facts and evidence.

      1. One more point.

        It’s obviously common sense that the U.S courts can only really hear matters of ‘substantive’ due process, given that
        1.The Supreme Court only hears about 75 cases a year.

        2.They turn down most cases. This is known as ‘denying certification’ (or cert) and, deJure anyway, the Supreme Court constantly points out that ‘denial of cert does not imply agreement the lower court ruling and so, can not be used to argue precedent.’

        3.The lower courts themselves would likely be swamped with cases if they did not limit the cases they hear to those involving ‘substantive’ due process.

        The problem here is that, in seemingly all other areas of jurisprudence, those on the right argue for ‘originalism’ and favor rulings that seem to lack common sense on the basis of ‘it’s not the job of the courts to rewrite bad laws.’

        Well, if they want to be consistent with that, the word ‘substantive’ is not in the 14th Amendment, and, as they say on other things, if they want the word ‘substantive’ to be considered as part of the Constitution, they should amend the 14th Amendment to include the word ‘substantive.’

        1. My mistake (I’m not a lawyer after all.) Ted Cruz was arguing the case based on some different principle that it was essentially not important enough for the courts to get involved to overturn the law, and that, since it was not significant, it should be left up to voters and the legislature.

          ‘Subtantive’ due process refers to the distinction between matters of sutstance and ‘procedural’ due process, that is, whether a law was legally written and whether courts followed proper legal procedure.

          I regret the stupidity of my mistaking the term, but there is still nothing in the 14th Amenmdent that limits the application of due process to only significant issues. The courts have tended to defer to legislatures, but the power of Judicial Review through due process and equal protection is vast.

          I’ve read discussions on this, and there are many legal scholars who argue the Congressional debate on the 14th Amendment shows it’s supposed to be far more limiting (only meant to grant due process and equal protection on the issue of civil rights, since, after all it passed shortly after the Civil War), however, that still gets back to the notion that ‘if that’s what Congress meant for it to say, that’s what they would have written, and if you want to change what it actually says, write and pass a new Amendment to limit the scope of the 14th Amendment.)

          1. You are working too hard, Adam. Thank you for enlightening us, but give yourself a break sometime.

          2. No one’s opinion is absolute truth. Not experts, not geniuses. I always consider expert opinions. Usually accord them extra weight. But, they’re often wrong.

            I’m glad for Adam’s comments. Even when he’s wrong. As he is, from time to time. But Roger’s right: Go easy on the regret. The Earth has not shattered. Exhibit A: Here we are.

    2. Re #4, Magna Carta was more about the rights of nobles, particularly in regard to things like fishponds and wardships, in the face of John “Softsword”‘s ever more abusive attempts to raise money for his futile French wars. The key here is the curb on arbitrary measures by the King, which covered pretty much everything John was doing. Also, a lot of folks seem to thing MC made the King answerable to his subjects, well the more powerful ones anyway. That was actually brought about by Simon de Montfort later in that same century with the establishment of Parliament during the reign of a very weak King, Henry III. Unfortunately for Montfort, the weak King had sired a most mighty son in the future Edward I, Longshanks, Hammer of the Scots, scene stealer in Braveheart, etc. After he did in Montfort at Evesham:
      “Montfort’s body was mutilated in a frenzy by the royalists. News reached the mayor and sheriffs of London that “the head of the earl of Leicester … was severed from his body, and his testicles cut off and hung on either side of his nose”; and in such guise the head was sent to Wigmore Castle by Roger Mortimer, 1st Baron Mortimer, as a gift to his wife, Maud. ”
      But it is not only Righties who can screw up the 14th. Every time there is a debt ceiling crisis during the administration of a Democrat, stupendously silly types such as Katrina vanden Heuvel (The Nation) start bleating that Section 4 gives the President the right to unilaterally raise the ceiling, a notion which every WH and Treasury has rejected since the limit was created in 1917. The section was actually more about something like “US money and securities are good, Confederate money and securities and claims relating to emancipated slaves are bogus”.

      1. I like this post. I take your point to be that Originalism is bunk. (Maybe you won’t agree with this. That doesn’t matter to me.)

  6. So unless there is a “substantive-due-process right” to something, the state can just ban it or restrict it however it pleases. Wow. So much for Teddy’s committment to personal liberty and small government.

    What an asshole.

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