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.
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.
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