Don't frighten the horses: What Larry Craig tells conservatives about ourselves.

Don't frighten the horses; what Larry Craig tells conservatives about ourselves.

Seems to me that confusing politics and Law has led many posters into a welter of contradictions. The Supreme Court has created a problem for conservatives who view this matter from a law perspective alone when it declared that homosexual sex between consenting adults in private is a constitutionally protected right of privacy. In effect, the Supreme Court wrecked the conservative position for those of us who see the question of homosexuality exclusively or largely through a legal prism. So we conservatives have a problem: Many of us have been left behind by the Supreme Court, many of us simply do not accept that homosexual sex under any circumstances is anything but a repugnant act which every state should have the right to criminalize. So we, or at lease many of us, are out of sync with the law.

The homosexual sex that we presume that Senator Craig sought would have been perfectly legal had it been conducted in a private dwelling. But it was not, rather it was to be conducted in a public toilet. The next problem to deal with in the Craig matter arises because the Supreme Court has legitimatized homosexual sex, and since there is no criminal offense involved in soliciting heterosexual sex in a public place (it is certainly constitutionally protected free speech in places much more public than a public toilet with private stalls, solicitation of prostitution, of course, excepted), how can it be a criminal act to solicit homosexual sex in quasi-public or quasi-private environments such as the adjoining stalls of a public toilet?

Are we to conclude that it is proper to make criminal a solicitation of homosexual sex but not the solicitation of homosexual sex? Are we to presume that the solicitation generates a high likelihood of actual sex being conducted in the public toilet? Then do we properly conclude that such a solicitation should be criminal and not protected constitutionally because of the danger of the public stumbling upon the act and being affronted? But does not the solicitation of heterosexual sex pose the same danger of afronting the public? Or should the law acknowledge that the sight of coupled homosexuals is far more disconcerting than the image of coupled heterosexuals? If the law admits that much, is it not saying that homosexuality is somehow depraved? How can that be squared with the Supreme Court's ruling that the homosexual sex act itself, if private and done between consenting adults, is constitutionally protected?

We criminilize the solicitation of one kind of sex which is legal if private, and do not criminalize solicitation of another kind which is also legal if private (and not commercialized). Why? We criminalize both kinds if conducted in public. Why is one solicitation more obnoxious than the other?

This is an example of the trouble the law gets into what it attempts to criminalize a tool or means of a crime instead of, or, at least as well as, the criminal behavior itself. So we attempt to make guns illegal to prevent gun violence instead of concentrating on prosecuting the violence itself. We criminalize public Intoxication and possession of illegal drugs rather than prosecuting the antisocial behavior which they might produce. We go one step further with drugs when we criminalize the possesion of paraphernalia because the possession of the stuff might lead to the use of drugs which in turn, might lead to antisocial or criminal behavior. I suppose we must ultimately stop this chain of causation when we get to Original Sin.

The next problem with the Craig case, of course, is that no sex whatsoever occurred, no verbal solicitation of sex is even alleged to have occurred. One must infer the solicitation from such abstract and arcane clues as hand signals and foot tapping. Surely these actions in and of themselves carry no danger to the public, no innocent child would be debauched as a result of encountering such hand signals and foot tappings, the public would be in no danger of being affronted by the solicitation itself. So now we have been brought to a place where perfectly innocuous gestures have been criminalized. Can this anomaly be explained on any basis other than that society, despite the Supreme Court and despite political correctness, is still very much ambivalent about homosexuality?

Let's be honest, conservatives tend viscerally to draw a sharp demarcation between heterosexual and homosexual sex because they find the latter utterly repugnant. Liberals on the other hand have striven these last few decades to make a virtue of the perversion. Indeed, in politically correct circles it is now incorrect to refer to homosexuality in anything like those terms. So we conservatives have been abandoned by the law and by the elites and so many conservatives are frankly frustrated and angry. These anomalies are even harder for conservatives to accept than for the public in general because, as conservatives, we should be very concerned for the integrity of the law. And whatever else you feel about the Craig case, or about the Fort Lauderdale public toilet matter, or San Francisco bathhouses, or private consensual sex between consenting adult homosexuals in Texas, every thinking conservative must agree that the structure of law concerning homosexuality is a shambles.

Most of us find the contemplation of anonymous sex-especially anonymous homosexual sex in a dirty public toilet- to be utterly abhorrent. But is it right to write laws which make otherwise innocent behavior (nonconfrontational solicitation) criminal ? Is it right to send our cops into public toilets with instructions to skate on the edge of entrapment? Is it right to condone our police when they extort a plea of guilty by exploiting the public obliquy which will come down upon a homosexual who defends himself against a flawed case in a public hearing? Is all of this moral corruption worth the price to avoid the potential that we might be affronted by homosexual acts in a public toilet? Have we lost our soul and our quest for decency? Have we compromised a far more precious possession, the rule of law?

The actual outworking of the legal process in the Larry Craig case is a perfect illustration of this mess. Craig pleaded guilty not to a homosexual act in public, not to the solicitation of homosexual sex in public, but to a disorderly conduct rap. Worse, most observers agree that the state had an extremely weak case if it attempted to prove its original charge of solicitation. Why did Craig plead? Obviously to avoid the stigma and the public disgrace implicit in the charges against him. I have no doubt that Senator Craig was actually looking for homosexual sex in a public toilet. In my view, the police were shameful and exploiting his vulnerability in this area.They knew perfectly well that they did not have a righteous bust for overt conduct such as public lewdness, or even solicitation. . Actually, I do not think the cop had even made a case of disorderly conduct! I also think Craig got a damn raw deal when the cop exploited his vulnerability. But my concern is not for this pathetic Senator, it is for the integrity of the law and for the political implications which this affair raises for the Republican Party, and the conservative movement, in 2008. Larry Craig himself obviously desperately needs to come to Jesus, but the Republican Party and the conservative movement better look to the state of its own soul as well.

What should be the proper conservative perspective on laws concerning homosexuality?

First, we must acknowledge that the Supreme Court decision in the Texas case exists. Second, we deplore the decision because it is a departure from states' rights-but I think it would be a very serious blunder to deplore the decision because we find homosexuality icky. The world has moved beyond the point where our society arrogates the right to criminalize unseemliness in private, consensual, adult sex. We like to think of ourselves as far more enlightened than the Victorians and we regard them as being a culture locked in irrational sexual taboos. But it was Lady Astor, very much a Victorian, who said, "you can do anything you like in public providing you don't frighten the horses."

Second, we must recognize the tides of jurisprudence, culture, and public consensus are flowing against us. The Supreme Court opinion is very unlikely to be reversed, so the law has already moved substantially against the traditional "conservative" position. Concurrently, the legal and social advances of homosexuals in our society are unlikely to be reversed. The homosexual community is an exceedingly active and effective lobby who can only be expected to campaign vigilantly for their own perceived rights. They are winning the battle. Conservatives who stand against them are impotently standing athwart history and must expect an unrelenting series of Larry Craig type incidents which increasingly alienate us from the general public. I think a truly conservative approach to the issue of homosexuality is to distinguish between that which is tolerable and that which is not because it conflicts with a competing higher value. For example, private homosexual sex between consenting adults is something that a true conservative who respects individual liberty should have little trouble concluding that is an area not for the Lawgiver but for the Redeemer. The flagrant, obnoxious, in your face primping and even soliciting, should be outlawed because it is repugnant to a higher value, which is the welfare of our children. Likewise proselytizing of our children in the school system. Homosexual marriage can be opposed because it degrades a higher institution, heterosexual marriage. Civil unions, on the other hand, should be easy for a conservative to tolerate because he believes in the freedom of contract.

Third, as conservatives we fear, above all things, intrusive government. We should be wary lest we tolerate government peccadilloes against homosexuals because we are disgusted by them. As conservatives we are rightly or reluctant to turn to the government for solutions to social problems. To the degree that we regard homosexuality as a "problem" we should be very reluctant to look to the criminal law system as the solution. That means that we must be careful not to criminalize or even stigmatize homosexuality because we find it repugnant. Conversely, we must not be intimidated by political correctness from insisting that the law protect our children from physical, psychological and educational abuse. We must be careful to punish acts where appropriate, but not the status. Neither should we tolerate that the status be exalted. We should act only when the horses are frightened.

So all of this brings us to the political implications of the Craig scandal. I have posted in another context as recently as a few days ago my concern about Republicans who throw their fellows to the enemy as soon as storm clouds gather. In fact, I make reference to this deplorable tendency in my about page. I do not think it is necessary to consider what to do about Senator Larry Craig, he is a problem in the process of resolving itself and I have no doubt that he will not be the Senator from Idaho on January 2, 2008. His senatorial career is virtually over. But I dodge the issue, what should be done about Senator Larry Craig if he does not go voluntarily? He should be shunned by the party and all support for him should be withdrawn not because he is a homosexual but because he is a damn hypocrite. Craig did not do much of anything legally wrong-he did not frighten the horses-if but he brings disgrace to the party by his flagrant hypocrisy. And the party must rid itself of him because failure to do so would lay it open to the charge of hypocrisy. He represented the party in the United States Senate for the state of Idaho and he lied to us about matters of morality and "family values." It is one thing to have a rot in the body of the party and to remove that rotten apple from the barrel and quite another thing to regularize perversity as the Democrats have done in similar circumstances.

What to do about other homosexuals? Do we welcome them into the party? I should think so, so long as they are open and otherwise comport themselves in sync with conservative values. That is, when they are not hypocrites.

Ironically, the remarks of Barney Frank seemed to me to be the best placed of this controversy. Of course he did not object to Craig's homosexuality and thought he should remain in the Senate. But he did criticize the man's hypocrisy. In this Barney Frank struck home. So long as we as conservatives attack homosexuals for their status as homosexuals rather than for their overt acts which are repugnant to a higher value, we are open to the hypocrisy charge. And every time a Republican homosexual is outed, we will become a laughingstock. We are open to the charge that we are hypocrites when we invoke the criminal law to enforce our predilections about sex because we are the party which says it stands for individual liberty and limited government. The Democrats say we intrude government into the bedroom and in this case they are right. So, when they say the same thing about abortion, we cannot effectively deny the charge even though a much higher value-a baby's life-is at stake.

We fall into this hypocrisy trap when we make the fundamental mistake respecting the nature of homosexuality vis-à-vis society. Democrats accuse us of hypocrisy because closet homosexuals within our ranks preach "family values." Why do we let the Democrats conflate these two issues? Because we have done so ourselves. Homosexual activity in private between consenting adults who are not married constitute no threat to my marriage. Nor do they constitute a threat to the institution of marriage. Adultery poses a threat to the adulterer's marriage whether the adultery is homosexual or heterosexual. The adulterer is not a greater hypocrite because his adultery is homosexual. I submit that no-fault divorce is a far graver threat to the institution of marriage than is the fact of homosexuality in our society.

Let us clear out all this underbrush so that we should ourselves not be accused of hypocrisy. Let us resist homosexual expansionism in defense of higher values but let us not confuse homosexuals with the devil. Let us come clear in our thinking about how we want the law to work and how we want our politicians to behave. Let us reject utterly those who demagogue this issue.

nathanbedford wrote:

-- in view of the explicit protection afforded by the Second Amendment, I do not think that the state has the right to try to get at gun violence by restricting gun ownership.
However it is probably constitutional to try to get at drug use by prohibiting drug possession in the absence of a specific constitutional right.
That is not to say that I think it is wise.

If it is [big IF] "probably constitutional" to try to get at drug use by prohibiting drug possession in the absence of a specific constitutional right; --
-- it can be, and is being used to try to get at gun use by prohibiting carrying/possession in the absence of a specific States constitutional 'rights'. -- Namely in New York, Illinois, and California.

Attempting to say it isn't 'wise', is in effect a form of acceptance. It tells us a lot about your conservatism.

As a constitutional conservative I distinguish between natural rights which Tom Paine vouchsafed to us two and a half centuries ago and explicit constitutional rights.

The 9th explains to us that 'explicitly' enumerated or not, our natural rights cannot be denied.

We have an explicit constitutional right to bear arms. We do not have an explicit constitutional right to use drugs.

You mean it isn't explicitly enumerated. -- Big deal. Our freedoms to life, liberty or property certainly include the right to self medicate with drugs.

Therefore I see the power of the state to legislate or prohibit the latter to be far greater than its power to regulate the former.

You are simply denying the validity of the 9th, -- as one of the prohibitions on power placed upon the States by the 10th.
Constitutional conservatives don't do that.

I do not see this as a slippery slope and I do not see it as a compromise of freedom.

I do not see a rational argument herein, just a flat denial.

When I deplore the unwisdom of a prohibition against drug use, I think that is an extension of freedom.
Tom I think you're putting the wrong end of the telescope to your eye.

You think prohibitions extend freedom? -- What kind of telescope do you use?

In discussing seriously whether a citizen can claim constitutional protection against state or federal intrusion because he is protected by the ninth or 10th amendment (or more precisely put: Because the government lacks the constitutional power to interfere because of the 9th or 10th amendment) it is important to distinguish as conservatives between what is reality and what ought to be reality in constitutional interpretation. Are we talking about the world of constitutional jurisprudence as it is or as we want it to be?

The text of the ninth amendment:

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

There are at least two ways to interpret this language. First, we focus on the word "enumeration" and read the language to mean that the act of enumerating rights (such as the right to bear arms) does not mean that the list is limited to what is written. In other words, by focusing on the word "enumeration" we regard the amendment as nothing more than a reader's guide to interpretation. In this case a precept of interpretation which is sort of the reverse of "the exception proves the rule." The exception proves the rule doctrine means that the enumeration of the thing marks it as an outlier and therefore the norm is to the contrary. Thus, the enumeration proves the opposite to be the rule. So the enumeration of the right to bear arms does not imply that the government has the right to engage in genocide against its own people because it is not expressly prohibited from doing so.

The second line of interpretation says that inherent rights are by natural law vested in the people and unless Congress (or after the 14th amendment, the states) is expressly vested with the power in the Constitution, the natural or inherent right of the people must prevail over the power of Congress. This interpretation has been advanced by pro-abortionists who would restrict the power of the state to regulate abortion as repugnant to a right of privacy. The "rights" of privacy can be drawn by them from either natural rights or inferences from various parts of the Constitution.

Which interpretation, in reality, has prevailed? If we are to live in a world of reality, the world of constitutional jurisprudence as it is and not as we might wish it to be, this question is important . It does no good to bluster on FreeRepublic claiming constitutional rights that do not exist and which the Supreme Court will not acknowledge. That is not to disparage those engaged in litigation or in the political process to get their interpretation ratified either by the court or by amendment. It is simply an admonition that we should deal with the state of the law as it actually is. The Supreme Court has consistently held that the ninth amendment, in itself, does not establish, that is create, any right by which a citizen can restrain the government. Full stop.

I suspect you are interested in the possibility of prohibiting the state by the ninth amendment from interfering because you do not want the state to interfere with your right to bear arms. ( If I am presuming here I would be grateful if you would disabuse me.) In this regard are you aware of this Rutgers Law Journal (1992) article by Professor Nicholas J. Johnson titled:

BEYOND THE SECOND AMENDMENT: AN INDIVIDUAL RIGHT TO BEAR ARMS VIEWED THROUGH THE NINTH AMENDMENT

In his article Professor Johnson argues persuasively that the right to bear arms should be protected from interference or prohibition by the government because that right is protected by the ninth amendment. I say that the professor argues persuasively but of course he is preaching to the choir as far as I'm concerned. However, I have two problems with this approach. First, the court is simply very unlikely to adopt this avenue to restrict the government's power in any sort of case and certainly not in a gun case. This is because of the elitist bias against gun ownership which Professor Johnson outlines quite well in his article and, incidentally, quotes Judge Bork to the effect that judges, lawyers, law school professors, and critics are themselves normally in no need of firearms protection. Whatever the reason, I have no doubt that the likes of Justice Ginsburg will never see a natural right to bear arms even when the barbarians are at the gate. But it is not just Justice Ginsburg. Justices from the extreme left of the spectrum to the extreme right, from Justice Douglas to Justice Scalia have written that the ninth amendment does not establish rights which restrain the power of the government. Revealingly, at a time when the leftists on the court were groping around to find a rationale to justify abortion and even resorting to "shadows and penumbras" and other absurd Touchy Feeley justifications, Justice Douglas in concurrence in Roe V. Wade explicitly abandoned the lower court' s ninth amendment rationale and had resort to a due process argument. If the leftists would not go to the ninth amendment under these circumstances they certainly would never go to it for guns. On the far right of the spectrum, Justice Scalia has explicitly written that the ninth amendment does not offer Justices and opportunity to find new rights in order to restrain government powers.

So as a practical matter, I do not hold much hope that the Court will in the foreseeable future resort to the ninth amendment to restrain government prohibition of gun ownership.

The second problem that I have with the ninth amendment approach is that much of the gun grabbing is done by the states as well as the federal government and the Bill of Rights is a limitation of federal powers(although it is nice question whether, by its very nature the ninth amendment, because it purports to recognize "natural rights" which are inherent, or God-given, or natural, is therefore perforce operable against the states as well as the federal government). Therefore, if a right, enumerated or unenumerated, is to be found by the court which can be applied against the state government, it must be applied through the 14th amendment.

That means that we are going to protect your guns we have to do it through the 14th amendment. That means the the Justices have to find a due process rights which trumps the state interest in prohibiting your right to bear arms. The problem is that not all but only some of the enumerated rights (some of those rights listed in the Bill of Rights) have been explicitly incorporated into the 14th amendment, the second amendment of course not being among them. However, one of the primary tests for such incorporation into the 14th amendment is whether the right is enumerated, ie appears in the first eight amendments. That is why I said:

" in view of the explicit protection afforded by the Second Amendment, I do not think that the state has the right to try to get at gun violence by restricting gun ownership.

However it is probably constitutional to try to get at drug use by prohibiting drug possession in the absence of a specific constitutional right.

That is not to say that I think it is wise."

"We have an explicit constitutional right to bear arms. We do not have an explicit constitutional right to use drugs. Therefore I see the power of the state to legislate or prohibit the latter to be far greater than its power to regulate the former."

You seem to take great exception to this observation implying that I have committed some sort of traitorous betrayal of the ninth amendment. To the contrary, I am merely stating that our odds are better in the 14th amendment context, because that is the world of constitutional jurisprudence as it really is rather than as we wish it to be.

Incidentally, while I am addressing your criticisms of my previous posts let me ask you to read my remarks again in the hopes that you will acknowledge that you misunderstood their plain meaning:

" When I deplore the unwisdom of a prohibition against drug use, I think that is an extension of freedom. Tom I think you're putting the wrong end of the telescope to your eye."

You replied:

You think prohibitions extend freedom? -- What kind of telescope do you use?

Of course, I think nothing of the kind, I think precisely the opposite which is exactly what I said.

Elsewhere you stated:

Attempting to say it isn't 'wise', is in effect a form of acceptance. It tells us a lot about your conservatism.

I am content to rest my conservatism in the good company of Justice Scalia and Justice Thomas.

Finally let me aver to your post number 170 and say that in general you are correct but it is important that we not mix procedural due process with substantive due process. Because we want to be procedurally fair to murderers or buggerers does not mean we endorse murder or buggery. On the other hand, we believe in a substantive right to bear arms. Because I might believe that unwise to prohibit the use of drugs, does not mean that I endorse their use, it does not even mean that I condone their use, it just means that I don't believe the criminal law is an effective way to deal with the matter.

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