[William McKinley]

I cede your point that I did not make the linkage more clear between Kennedy's argument and the flavor of libertarianism which he often employs. I should have included a few more quotations from his opinion, such as

"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.

[dirtboy]

Your argument is stronger now, and easier to debate. I think that there are two main branches of libertarianism - those that are in favor of limited government and those that are activist. Take drug laws, for example. The limited-government libertarians would say the federal government has no role under the constitution outlawing the cultivation of cannabis for personal use - but that states have that power, and it is a matter of making the case for legalizing cultivation on a state-by-state basis. The activist libertarians would point to the 9th Amendment and say that it can be construed to establish federal rights that are not enumerated, and SCOTUS should strike down state laws that infringe on non-enumerated liberties. My little "l" libertarian influences tend towards the former - I do NOT want an activist Supreme Court creating federal rights out of thin air.