Not true at all. All prohibitions are infringements on individual liberty. -- Do you really think they agreed that States could flat forbid a man from drinking booze? Or from carrying cards/gambling? - Hell, they enumerated our right to carry guns, - and then said in the 9th that enumeration of such rights wasn't needed.
The notion that the Constitution did not do so would have been laughable to the founding fathers. The Federal government has NO power in those areas under the constitution--neither the power to regulate individual behavior nor the power to prohibit the states from doing so.
The Constitution specifies in the 10th that some powers are prohibited to States. Due Process of law denies Fed, State, or local government the power to arbitrarily prohibit booze, guns, -- whatever.
So at the Federal level, the author is correct. But at the state level, he is completely wrong.
"-- The reasoning, in essence, is that a Constitution that recognizes the right of a populace to revolt against arbitrary power and oppression cannot be interpreted to grant the state government authority to pass arbitrary and oppressive legislation. --"
"-- Thus, the right of revolution -- a key Second Amendment concept as well -- also works to forbid a Borkian majority's outlawing, say, contraception or sodomy [or other vices like booze, or gambling] -- merely because such practices cause (in Bork's words) "moral anguish" among the electorate. --"
Well, yes. It's a slam dunk. Every state had very restrictive morals legislation that they enforced in 1783. There is no recorded instance of any founding father ever suggesting that the Constitution affected any of those laws in any way. Regulating morals was a power reserved to the States.
The Constitution specifies in the 10th that some powers are prohibited to States.
True. But read the language. Does it say that a Federal Court can just make up prohibitions on the states regardless whether the prohibitions are stated in the constitution? No. It say "prohibited by it [the Constitution] to the States." Well, the Constitution has plenty of prohibitions on the States that are quite explicit. The supremacy clause, the requirement that States have a Republican form of government, the right to bear arms, and the prohibition of eminent domain except for public use occur to me off the top of my head. The Framers were representatives of the States. Had anyone suggested at the Constitutional Convention that the 10th amendment was intended to let nine federal justices tell the states that they couldn't regulate prostitution or sodomy, it would not have passed.
Due Process of law denies Fed, State, or local government the power to arbitrarily prohibit booze, guns, -- whatever.
"Due Process" means that folks may be deprived of "life, liberty and property" as long as they get a fair hearing ("due process"). Read the language and think it through. There is no historic evidence that the Framers intended the due process clause in a substantive manner. It deal with "process", not results.
Frankly, the argument you make is as revisionist and as radical a remaking of the Constitution as the penumbras and emanations of Justice Douglas, who was a TERRIBLE judge. Both you and Justice Douglas would use a "living" constitution to impose your moral standards on the States and in the course of doing that, ignore the clear intent of the Framers.
If you want to win the "if it feels good do it" war, you need to win it in the State legislatures--not in federal court. At least if you care at all about what the Framers intended.