Hardwick: A Hollow and Harmful Decision
I was astounded to read Henry Mark Holzer's praise for the Supreme Court's decision in the Hardwick case ("The Sodomy Solution: Repeal, Not Appeal," Viewpoint, Oct.). Holzer argues that the decision was correct because it was consistent with states' rights.
First, states have no rights; only individuals have rights, and that decision clearly permitted employees of the state of Georgia to violate the rights of Hardwick.
Second, like the ACLU, Holzer is enamored with procedure and treats procedure as an end, not as a means. As long as government employees follow the correct procedure, as set forth in the Constitution, Holzer would, I believe, say that they have the right to commit any act, however heinous.
In a magazine such as REASON, I expected a better analysis of Hardwick.
Richard D. Fuerle
Holzer Is Wrong on Rights
Professor Holzer's assessment is not satisfactory. For example, his strict constructionism and absolutist federalism vis-à-vis the Bill of Rights disregards the history of interpretations given to the First and Fifth amendments. It also fails to mention the neglected but vital Ninth Amendment. This last explicitly refers to rights outside not only the Constitution but positive law itself.
It may be that a constitution of liberty is not the same as the U.S. Constitution. But there appears more in the latter that supports individual rights than Holzer finds in it. I believe that his analysis is not only dubious but dangerous, for it gives credence to collectivism so long as it is decentralized.
Tibor R. Machan
The Frightful Fruits of Federalism
The Georgia sodomy law violates the Ninth Amendment to the Constitution. It is important to our liberties, and thus the Griswold decision (the contraceptives case) is a valuable precedent in constitutional law. The landmark case Roe v. Wade, which legalized abortion, was based on similar reasoning, and the Georgia law should have been struck down for the same reason.
Mr. Holzer also defends the concept of federalism. While he is legally correct, it seems obvious today that federalism is an obsolete concept and has merely created an unnecessary, expensive level of government.
State governments could be abolished tomorrow with no loss to our liberties but with great gains to our pocketbooks. This is not an anarchic point of view. I see the federal government providing national defense, while local governments provide police and criminal courts. Rather than preserving our liberties, state governments routinely violate them. If the politicians and bureaucrats in Atlanta were cleared out, Georgia's archaic sodomy statute would go as well.
Los Angeles, CA
Federalism vs. Liberty?
Holzer's fetish for form over substance ("federalism" over liberty) may be shared by total statists like Edwin Meese and William Rehnquist, but it was not shared by the framers of the Constitution. In The Federalist Papers, when Hamilton and Madison quote Montesquieu's sentiment, "There is no liberty if the power of judging be not separated from the legislative and executive powers," they are judging form (separation of powers) by substance, and the substance is liberty. A fortiori, by the way, there is no liberty if the power of judging be nonexistent.
Judicial review is the only bulwark against the tyranny of the majority. Holzer tells us that it is porous against the states and offers as an umbrella the cynical suggestion that the crushed minority appeal to the very legislature elected by the majority to crush it. If the Ninth Amendment is deemed meaningless, a mere curlicue on the margin of the document, to what depths of tyranny may states not descend? Compulsory fundamentalism? Coupled with seditious libel laws? Thus prison for Jews and death to resisters?
West Hollywood, CA
Do States Get a Billing in the Bill of Rights?
The best that can be said for Holzer's viewpoint is that the U.S. Constitution is ambiguous. The 14th Amendment forbids the states from abridging "the privileges and immunities" of citizens and from denying any person "the equal protection of the laws." It would not be illogical to apply these statements to the sodomy case and show why equal protection as well as "privileges and immunities" were denied and abridged.
It is not clear why the Bill of Rights does not apply to state laws. Only the First Amendment refers to Congress. The Sixth Amendment says "in all criminal prosecutions," not "in federal criminal prosecutions." In fact, the amendment refers to "an impartial jury of the State and district." The Bill of Rights has indeed been applied to the states.
Finally, the Ninth Amendment states that the "enumeration of certain rights shall not be construed to deny or disparage others retained by the people." Notice it says "retained," implying these are natural rights, and so rights such as privacy are not new but inalienable, preexisting rights. Therefore, no government—local, state, or federal—may deny or abridge them.
Finding Privacy in the Constitution
The 14th Amendment has somewhat more substance to it than simply the due process clause mentioned by Professor Holzer. The amendment also requires that no state shall make or enforce any law abridging the privileges or immunities of citizens of the United States. This implies that the states are at least minimally constrained by the federal Constitution as to the substance of the laws that they would enact and that citizens are entitled to seek redress in the federal courts against state laws that may infringe upon these rights.
As the Constitution fails to be specific as to what exactly these privileges and immunities happen to be, under our system it falls to the courts to decide. I concede that one may tenably argue (with the minority in the Griswold case) that the right to privacy ought not to be included among those privileges and immunities. But likewise, the assertion of such right can hardly be said to be spun out of thin air or the result of pure fabrication without constitutional precedent.
Los Angeles, CA
Never Forget the 14th
Professor Holzer takes what is unfortunately becoming a fashionable approach to dealing with issues of constitutional protection of personal liberties. This approach is unfortunate because it calls for explicit support in the text of the Constitution for rights protection, while it fails to acknowledge the powerful impact of the Ninth Amendment and of the privileges and immunities clause of the 14th Amendment in protecting liberty.
The Ninth Amendment provides that "the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." It thus provides textual recognition of the "higher law" background of the U.S. Constitution—which rests on a libertarian, natural-rights foundation. In earlier writing, Holzer praised the Supreme Court's reliance on the Ninth Amendment in the 1965 Griswold case invalidating Connecticut's anticontraceptive law. To now insist on explicit protection of specific rights in the text of the Constitution is to turn the Ninth Amendment on its head.
The first section of the 14th Amendment states that "no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." Although this clause was annihilated shortly after its passage by an erroneous 5–4 Supreme Court decision in 1873—which incorrectly held that the clause does not protect fundamental rights against violation by state governments—its use can be an effective and principled tool to protect personal liberties from state abridgement. It should be resurrected.
Holzer's Viewpoint in effect discusses his "strict constructionist" perspective on what the law is and does not condone the extension of prior case-law to encompass the protection of private sexual conduct. But it is essential to focus also on what the law ought to be, with recognition of the broad protection of rights from state violation intended to be provided by the privileges and immunities clause—based on a willingness to reverse an erroneous prior line of interpretation.
Holzer's narrowly focused conclusion that opponents of antisodomy laws "should not look for, nor advance, a federal constitutional remedy" is poor advice for those who believe in law and liberty.
Los Angeles, CA
Sodomy's Simply Sinful
Mr. Holzer states that the Supreme Court "simply said—correctly—that there is no federal constitutional remedy" for appeal of Georgia's antisodomy law. He then goes on to say this was the right decision for the wrong reason. What the Supreme Court simply said was the right reason. It is clear why Mr. Holzer cannot accept this reason, as he goes on to make a case for "trying to repeal antisodomy laws which are stupid, immoral," etc.
I am surprised that REASON would feature such a defense of sodomy and unreasonable thinking. Why not leave defense of sodomy to the Hardwicks of the world who mistake licentiousness for civil liberty?
E.H. Riendeau, J.D.
Unenforceable? Says Who?
Holzer says the sodomy law is "unenforceable." Apparently he has not read the decision. It is being enforced. That is why the case reached the Supreme Court—because it involves a real "case or controversy." Moreover, if there were no intent to enforce the law, precisely why did the state attorney general appeal the 11th Circuit's overturning of the law?
Michael Hardwick was arrested in his own bedroom for an act of sex with another, consenting, man. Even now he faces possible prosecution and up to 20 years in prison for this.
Two men in Virginia were arrested for sodomy as late as the 1970s (the Supreme court refused to hear that case). Not 20 years ago, southern cops were inviting reporters along as they followed "fags" from gay bars, broke down their doors, and arrested them for sodomy.
This is "unenforceable"? This must be the virtue of federalism.
By the same token, Holzer will tell us that the 1968 case Loving v. Virginia, which struck down in 16 states laws against mixed-race marriages, was wrongly decided. One hundred twenty years ago, REASON would have published Holzer's claim that the Dred Scott decision was good "federalism" and that "we are all the freer for it."
That is Orwellian doublespeak. As a gay man, I am none the freer for the federal government allowing 24 states and the District of Columbia to be legal minefields for the morally innocent.
Gary S. Meade
West Hollywood, CA
Hooray for Holzer
Thank you for printing Henry Mark Holzer's Viewpoint. My kneejerk left-libertarian response was outrage, but after a few moments I realized that Holzer's concern is with the long-term consequences of expanding the power of the federal government by inventing constitutional rights that may not exist without wildly creative interpretation.
While his essay did not change my opinion that the right to privacy is inherent in the right to liberty and the pursuit of happiness, I also respect Mr. Holzer's position. His credentials as an observer of the Supreme Court and a believer in freedom are unquestionable, and I am pleased that he had the opportunity to share his views.
Santa Monica, CA
Diluted Power vs. Concentrated Power
I applaud Henry Mark Holzer's defense of the crucial importance for liberty of a properly balanced federal structure. The same argument applies to the attempt to pass a law (HR 2320) to make the federal government regulate state ballot-access laws, an attempt supported by the Libertarian Party. Unfortunately, the Constitution does give Congress the power to regulate how candidates can. get onto the ballots in their respective states. But such a law would be most unwise, and any defender of individual liberty should certainly not encourage Congress to assume this power.
The issue is a proper balance of powers among branches of government. Concentrated power is always a threat to liberty.
W. Kent Dillon
San Jose, CA
Mr. Holzer replies: Most of the objections to my Viewpoint piece, although expressed somewhat differently, are really the same: since the Bill of Rights applies to the states, the Ninth Amendment does, or should, render Georgia's antisodomy law unconstitutional; federalism is at best inconvenient, at worst violative of individual rights. Regrettably—as the Bill of Rights' author, James Madison, would be the first to concede—the first nine amendments were never intended, and have never been held by the Supreme Court, to apply to the actions of state governments. Neither wishing nor Justice Black could ever make it so.
The only textual prohibitions on state power in the federal constitution, other than the now largely anachronistic proscriptions of Article I, Section 10, are the trio found in the 14th Amendment: due process, equal protection, and privileges and immunities. As to due process and equal protection, Prof. Raoul Berger's masterful Government by Judiciary has made it clear for all time that that dynamic duo was never intended to make the federal courts—especially the Supreme Court—into a legislature, judiciary, and executive of last resort for American constitutionalism, reigning supreme, through its "constitutional veto power," over the political and governmental processes of every state in the Union.
Those who believe otherwise understand neither the foundation principle of federalism nor its importance in helping to protect individual rights by decentralizing government power. It does not follow, in reason or in law, that invoking federalism in Hardwick, and thus turning a deaf federal constitutional ear to those attacking Georgia's presumptuous statute, approves either the sexual practices illegalized by the Georgia law or the statute directed against them. Indeed, eschewing a federal constitutional remedy in Hardwick takes no position per se on either sodomy or statism. It merely remands the ceaseless war between individual rights and collectivism to the state level where, for the most part, the framers intended most battles to be fought. (As Professor Machan perceptively recognizes, "a constitution of liberty is not the same as the U.S. Constitution"—which is the only one I was writing about.)
Those who, with attorney Klausner, wish to utilize 14th Amendment "privileges and immunities" power to invalidate the Georgia statute have a rough row to hoe. First, as Prof. Gerald Gunther of Stanford Law School has written, "The framers of the 14th Amendment had great difficulty in articulating any specific content for its broad phrases." Second, "in no part of the congressional debates on the Amendment is there greater evidence of vagueness and inconsistencies than in the discussions of 'privileges and immunities.'" Third, "the Justices of the Supreme Court have not been able to be much more concrete so far." Fourth, the Court's majority in the Slaughter-House Cases limited the clause's protection to rights deriving from national citizenship (for example, petitioning Congress)—a far cry from the claimed right of male homosexuals to engage in certain sexual practices.
Where, then, does that leave the embattled homosexuals and some result-oriented individualists? They have a simple choice. Either ignore federalism when convenient, aiding and abetting constitutional anarchy and ultimately making possible even more violations of individual rights by the federal government, or bite the federalism bullet, try to freeze federal power where it is, and wage the war against state violations of individual rights where it belongs: at state legislatures, in state courts, with state governors, and ultimately through the state electoral process.
Unfortunately, the road to liberty is a long, hard one. And, like the road to hell, it is often paved with good intentions.
Escaping Government Space Flight
In "Who Killed the Challenger 7?" (Editorial, Oct.), Robert Poole asserts that "no other manned launch system—even Soviet ones—had ever launched human crew members without any emergency escape system." Available evidence suggests otherwise. The Soviet Voskhod spacecraft was designed with no provision for emergency escape. Two manned missions were flown with Voskhod, in October 1964 and March 1965. For an account of Voskhod's missions, see James Oberg's Red Star in Orbit.
I also found some of your remarks about the Rogers Commission regrettably unfair. On the whole, the report confronted the decision making process with calm frankness. Although the commission could and perhaps should have gone farther to illuminate political interference in the program, it did not construe its mandate to require a detailed evaluation of the entire Shuttle system. The commission may be properly commended for what it accomplished, and then it is our job to place the tragedy in a broader context.
So long as space flight remains a government monopoly, politicization—with both its mere inefficiencies and its deadly hazards—is inevitable.
Perfecting My Profile
Thanks for the profile article on me by Bill Kauffman ("Mr. Marrou Goes to Juneau," Oct.). It is quite well done and enjoyable. However, there are three factual errors in the article: I was born in south, not southwest, Texas; the secession argument was settled in 1865, not 1861; my "Good Samaritan" bill did pass both the House and the Senate and was signed into law by the governor.
Keep up the good work.
Rent Control's Radical Results
Thank you for the excellent article on rent control in California, focusing on the insane situation in Berkeley ("Berkeley's Radical Slumlords," Oct.). A few additional points of interest, if I may:
First, Senator Petris is a radical left legislator, an added irony to his statements damning the way rent control is handled in Berkeley.
Second, rent controls punish most severely those owners who have been considerate of their tenants. In West Hollywood, there is an 88-year-old, sickly owner who cannot pay her medical bills. Her rents had not been raised in over 20 years when the rent-control bandwagon ran over her and West Hollywood joined "progressives" in Berkeley and Santa Monica in enacting rent control. She was recently turned down for increases of her rents, which are as low as $70 per month (and go only as high as $250) for one-bedroom apartments. The city found that she was "receiving a fair return."
Third, rent control is not an issue infecting poor cities, only wealthy ones. Witness the cities in California where control has been passed.
Tenant radicals often say, "Housing is just too important to be left to the private sector." But it was bad government policies that led to the need for controls, and it is government controls that are making the problems worse. If you are looking for worst, turn over housing to the government. After all, that's the way they do it in the Soviet Union.
Beverly Hills, CA
Regarding Jeff Riggenbach's article on rent control, I have only one good thing to say: Thank God when Mr. Riggenbach came to interview me, his tape recorder was broken. Now my name nowhere appears associated with another hack attack on rent control.
Ms. Sage was the first director of Berkeley's rent board. —Eds.
I do not know for how many years I have been a REASON subscriber, but I do know that REASON is my favorite publication. I have subscribed to a great many publications over the years. At one time I subscribed to (simultaneously) Mother Jones and National Review. When I found REASON I knew I had found soul-mates, as it were. I am often amused at those who cancel subscriptions because of an article they found offensive or merely disagreed with. Clearly they are not employing enough "reason."
And therein lies the problem we face today: people whose principles will change depending on whose ox is being gored. They will doubtless insist that their principles are unwavering: they are for "good" things and against "bad" things. Trouble is, leftists might think capitalists, nuclear weapons, and Bible-thumpers are "bad" while rightists might think communists, pornography, and "recreational" drugs are "bad." Each group is perfectly willing to bring the force of government to bear against its targeted "bad" things. Censorship, for example, is okay with either group as long as only "bad" things are censored. They fail to realize that once government is granted the power to determine good from bad and to use state force to eliminate the bad, government is out of control.
By contrast, REASON recognizes that censorship of either the Bible-thumper or the pornographer is wrong. Censorship is wrong in principle.
It is good to see that REASON is being more widely circulated. The individualist message needs wider exposure. A recent letter to the editor of a conservative publication chided libertarians for "wanting to do whatever they want without having to accept any of the responsibility." On the contrary, libertarians, more than conservatives or liberals, want individuals held strictly accountable for their actions, unable to hide behind the skirts of regulation to protect them from competition or to pass off their own failings as failings of "society."
This article originally appeared in print under the headline "Letters".