Skip to comments.Libertarian Judicial Activism
Posted on 07/02/2003 11:16:07 AM PDT by William McKinley
Much of the conservative criticism has been aimed at Sandra Day O'Connor, who voted with the majority in both cases. In Lawrence, she suggested that the law in question was "a bare ... desire to harm a politically unpopular group"; laws of that nature the court has "consistenly held ... are not legitimate state interests." Right or wrong in her analysis of if the Texas sodomy law, the scope of her legal argument is relatively narrow.
Her concurring opinion was not the opinion of the Court, however, and O'Connor did not join in the majority opinion. Justice Anthony Kennedy's majority opinion is more ambitious in scale and, as the Court's opinion, is further reaching in impact; as such it deserves more attention. Writing for the court, he states [bolded emphasis mine]:
"In Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confimed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id., at 851. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:This passage makes clear that the majority of the court, led by Kennedy, is expanding the edicts of Roe far beyond matters of abortion. As pointed out by Jeffrey Rosen in Sex Appeal, "carried to its logical conclusion, it seems to read the libertarian harm principle of John Stuart Mill into the Constitution, preventing the state from forbidding individuals from engaging in behavior that the majority considers immoral but that poses no harm to others.""These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under the compulsion of the State." Ibid.
"That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others." - John Stuart Mill, Essay on Liberty, 1859If one buys into the argument made by Mill should not be the point. The point is whether the Constitution, as written, embodies this principle. Is there, in the Constitution, a "right to define one's own concept" of morality, with local, state and federal governments forbidden from legislating such matters so long as they do not harm others? As Justice Scalia wrote in dissent,
"That 'casts some doubt' upon either the totality of our jurisprudence or else (presumably the right answer) nothing at all. I have never heard of a law that attempted to restrict one's "right to define" certain concepts; and if the passage calls into question the government's power to regulate actions based on one's self-defined "concept of existence, etc.," it is the passage that ate the rule of law."The Constitution is one of the most libertarian documents of governance ever employed, but it is not a completely libertarian framework. The 10th Amendment states "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." If the intent of the founding fathers to implement for the entire country the principle that Mill's theorem later encapsulated, the phrases regarding "the States" would not have been included. The wording of the 10th Amendment strongly suggests the Constitution was not written so as to give citizens "a right to define one's own concept" of the law, but rather that such was the realm of either the states or the people. The fact that laws regarding morality were commonplace in states during the years following adoption of the Constitution backs this reading of the intent of the founders.
Kennedy hints that the 14th Amendment is salient and must be considered. "These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment". But even his words highlight that the 14th does not introduce liberties, but rather introduces protections (for all citizens) of the liberties already specified within the Constitution.
"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.", 14th Amendment to the United States Constitution, Section 1Is the "right to define one's own concept" of the law one of the privileges of citizens of the United States? It was not prior to the 14th, and the 14th did not add it.
Kennedy has engaged in judicial activism of the libertarian variety. In so doing, he struck a blow against the principles of federalism; a blow that Justices Souter, Breyer, Ginsburg, and Stevens were all too happy to join in making. And if, indeed, there is Constitutional protection "to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education", then on what grounds are there to be laws regarding bigamy, polygamy, bestiality, and incest? This is the exact argument that Senator Santorum was making when he was recently vilified by the mainstream media. It is not that sodomy and bestiality are comparable, but rather that the Constitutional basis for laws regarding such matters is the same, and the Kennedy opinion destroys that basis.
The question is not if it is good governance for there to be sodomy laws, as Justice Thomas noted in dissent. "I write separately to note that the law before the Court today "is ... uncommonly silly." ... If I were a member of the Texas Legislature, I would vote to repeal it. ... I am not empowered to help petitioners and others similarly situated". Thanks to Lawrence, that is no longer the case. Due to unintended (or intended) consequences, libertarian judicial activism has greatly expanded the powers and the reach of the federal government as personified by the courts, at expense of the ability of states and localities to self-govern.
For conservatives and adherents to a strict constructionism judicial philosophy, this is an obvious setback, but not one without a silver lining. As Santorum warned, such a ruling will lead to a bevy of challenges to many other laws. It does not take much imagination to apply the "right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life" to any number of laws. The court will inevitably be forced to revisit the stealth addition of Mill to the Constitution, either to repeatedly reaffirm it or to remove that fanciful addition. One such review will come regarding gay marriage laws ("personal decisions relating to marriage"). More will come after that. And since this is now the pillar on which Roe stands, such a revisitation will be welcome, especially if in the context of the absurdity of a challenge to laws restricting bestiality or incest.
A rather interesting application of logic. Let's see if I can replicate it.
The sky is blue.
Robin eggs are blue.
Therefore, the sky is a robin egg.
Just because libertarians may be opposed to state laws against sodomy, it does not mean they applaud using the cudgle of SCOTUS judicial activism to end such.
That you need to prove a lot better.
To prove that he did so using a libertarian argument, I guess it is a matter of opinion on if the following is a libertarian concept or not:
"At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."To me, it strikes me as being such.
Why does that sound like a libertarian argument? That sounds more like something that you'd find in It Takes a Village.
"This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects."This would have tied it more directly to Mill's harm edict.
Similarly, Kennedy states "The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals". Again, this is a very libertarian argument. If one were to substitute the word "activity" for "relationship" would be applicable to an argument against drug use laws; why activities regarding relationships deserve different Constitutional treatment than others is not well defined, especially "absent injury to a person or abuse of an institution the law protects".
Upon reflection, my article would have been stronger had I originally included them, and as such I have added it to my article at the source. I do not believe that it impacts the central thesis, which is that this was a significant case of judicial activism, unsupported by the Constitution, that will be inevitably revisited.
Thanks for the critique.
I notice that the bar has moved downward, from 17 years to 14 years. At what age is the limit? Who decides? By what standard?
Fine. I think that actually most libertarians have little problem with this principle and conservatives can live with it as stated. The issue is in this case then, is: does sodomy pose no harm to others? I think an excellant argument can be made that it does: HIV, AIDS, various STDs and other ailments. Therefore as per the 10th amendment there can be legislation on this issue. And I for one think that is the way to go.
We don't ban people from sky diving (a relatively risky proposition). We require that they get insurance coverage. This is not for their benefit. It is so society does not incur the expense if they have an accident. Ergo, we can simply require identify a set of conditions that neither the state nor the federal government, nor employers, have to provide medical coverage for. Thus, if you have HIV it is your responsibility to prove you got it from a contaminated blood transfusion. Otherwise, zero state or federal medical dollars will be available to pay your medical expenses. You want to engage in risky behavior that "only poses harm to yourself"? Fine. You pay for the insurance. THAT the state can legislate.
Further -- the state can aggressively prosecute those who have given HIV to others, since their behavior did, in fact, harm others. This will not violate any constitutional provision at all.
The solution is very simple. We don't care what the behavior is -- but if it does harm others then the state will vigorously arrest and prosecute. So while sodomy per se might not "harm others" -- giving an STD or HIV does. And guess what. The state CAN legislate that anyone who shows up to a medical center who tests positive for a STD or HIV can be prosecuted (accessory after the fact, concealing a crime, etc.) if they don't turn over their sex partners. Heh heh.
I made no reference to 17 year oldsI stand corrected- I saw the 17 in your original comment and when I hit reply transposed it to you saying that was the age of the other boy.
but if it comes to a choice between at least semi-educated judges and the collection of pinheads and yahoos who fill the state legislatures, I would select the former without a second thoughtAnd if a collection of semi-educated judges determines, since you empowered them with the rule of man rather than the rule of law, that the people should be disarmed, then?
And if you are going to cede the power of governance away to such a chamber of rulers, why not go the full monty and support a benevolent dictatorship?
Why is it so important to you that states retain the right to lock teenagers up for decades for having sex with each other?It is important to me that the Constitution be maintained. I happen to like the country, and the country has gotten where it has under the framework of the Constitution. I don't like all of it, but then I do not believe in utopia. As a conservative I do not believe in perfectability of either man or his political systems.
And it is important to me that the ability for localities to govern themselves as they see fit is protected as best possible without infringing on the rights of others as spelled out in the Constitution and its Amendments as written. I should not be able to force my desires for how a community should craft its laws on a township of Amish hundreds of miles away, any more than they should be able to force theirs on mine. But your question begs the return question, why is it so important to you that states retain the right to lock up teenagers for decades for having sex with each other? And why is it so important to you that it be protected under the Constitution instead of simply getting the law changed (if a persuasive argument can be made to the people, as indicated by their votes for their elected officials)? Why is it important for you to say that people have no right to pass laws that say "sex with 10 year olds is illegal"?
It sounds to me like you don't like the way the law is crafted (too harsh a penalty, the ages too high, etc.) and as such you think the Constitution should reflect your view of the law. That's the rule of man, not the rule of law.
And under the rule of man, your beloved 2nd Amendment rights exist at their whim and their whim alone. I am sure you have not liked SCOTUS rulings that have eroded the 2nd Amendment. But thinking like that shown by Kennedy in his majority opinion is what leads to rulings like "the 2nd Amendment is not a personal right but a state militia right".
This is Not libertarian anything.
Libertarians and small "L" libertarians oppose racial quotas FYI.
You are on the wrong forum if you are trying to advocate the pedophilia is a Constitutional right or that minors are able to give consent.
So the fedgov SHOULD enforce rights not enumerated in the Constitution? Congrats, you just killed the 10th Amendment, which pushes that debate to a playing field between the states and the people living in each state.
Yes, as a constraint on federal power to limit rights. Otherwise, you've destroyed the 10th, because the feds can declare ANYTHING a federal right and the 10th becomes null and void.
You do that, and the 10th is null and void. And SCOTUS has, I believe, exactly TWICE referenced the 9th Amendment, whereas it has referenced the 10th many, many times.
What is more frightening than the fact that anyone would deny that the Bill of Rights is binding on the states, is that anyone would *want* to.
You have a contradiction, the same as the one used by the gun grabbers with the 2nd. The 10th is part of the Bill of Rights. But it is not a restriction on the states. Federalism is not just about the rights of the people, but also is about the powers of state government and limiting the power of the fedgov to restrict what states can do. Your expansive reading of the 9th is consistent with activism, not conservatism.
Once again, SCOTUS has seldom cited the 9th. Try again.
The 10th Amendment prevents the government from violating the rights of states or individuals.
Now, if the fedgov, through the 9th, were to define something to be a federal right that was not enumerated by the Constitution and not allocated to the fedgov, then the 10th is cheapened - or even destroyed if it happens enough. And what's next? Does healthcare become a right, and the fedgov usurps power over medical resoures that belongs to the individual? It's no different, usurping state power or usurping the rights of individuals - you may applaud the work of the federal Frankenstein today, but don't be surprised when it turns on you tomorrow.
I don't think sodomy should be outlawed by the states. But I also don't think it is a federal right or issue to be imposed on the states.
Laws such as sodomy laws ARE the "rule of man". Many people keep making this same mistake. But they have been conditioned to, I guess.
Hardly ... because that's what it boils down to anymore.
Except for now they don't bother citing the Constitution much, and are getting really good at parsing concepts to avoid what is left of it.
The argument isn't whether I support five people "determining that the Constitution says what they want it to", Its about government, ALL levels, not having the power to determine what private, consensual activities adults may engage in. Like I posted before, the "rule of man" is demonstrated quite well by laws such as "sodomy laws" where a majority has decided to oppress a minority. The "rule of law" only occurrs when government is kept at its minimal purposes, which is the defense of the rights of all. Otherwise, you have the "rule of man" where whatever "majority" is in charge makes rules to enforce against a minority who disagrees.
There have been good decisions, and bad decisions, IMO, that have been rendered by the court. Those rulings that expand the recognition of pre-existing rights are applauded by me, while those that expand the power of government(most of them) are denounced. Decisions striking down sodomy laws accomplish the former, thus I appaud them, regardless of the fact I don't like homos.
But then who defines what is a right? Do liberals get to define health care as a right? That's the slippery slope - the fedgov should be limited to protecting rights enumerated in the Constitution, and not to defining rights, because a lot of trouble has come from that direction.
Where did this right pre-exist at the federal level?
those that expand the power of government(most of them) are denounced
I hate to break it to you - but this ruling DID expand the power of the federal government. And it will be cited for other expansions of power.
Decisions striking down sodomy laws accomplish the former
The end justifies the means, eh?
The argument isn't whether I support five people "determining that the Constitution says what they want it to"If the question at hand is if you support the SCOTUS overturning a law you do not like without there being a firm Constitutional basis for their decision, then yes, the argument is precisely this.
Which means the fedgov cannot ban such, but also cannot prohibit the states from acting one way or the other against it.
which is my private opinion, but there is plenty of precedent for the idea that privacy is an unenumerated right. See Goldberg's opinion in Griswold, e.g.
Ah, citing Griswold, eh? The father of Roe v. Wade, the mother of all judicial activist decisions.