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.
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.
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