States' Rights

I raised a question in the comments section to a post below, then decided it might be worth an item of its own: How come the people who are so quick to cite federalism issues when a state law prohibiting sodomy is on the line hardly ever bring it up when the issue is a state university's admission policies? Yes, I know, there's no dubious constitutional right to privacy involved in the affirmative action case. But if states' rights outweigh that business about "equal protection under the law" when the issue is sodomy, you'd think that more than a few federalists would decide the same logic applies with affirmative action. If not on constitutional grounds, then perhaps on decentralist principle. No?

I'm not staking out a position here, just posing a question. Do any of the people who believe Texas' sodomy law should have been fought in the state legislature rather than the federal courts feel the same way about Michigan's system of racial preferences? Why or why not?

Comments

[Larry]

I hate to bring cynicism to the Reason site, but I think it's more a case of "Where can I get the laws I want passed." In my prime issue, gun control, the anti-gun folks were all preaching "We need standard Federal laws" while the Democrats were in control of Congress. Now that Republicans are letting the "assault rifle" ban die and passing anti-lawsuit legislation, and state governments are legalizing concealed carry right and left, the pro-control folks are saying, "Cities should have the right to..." and, "Courts should be able to override..."

A lot of the folks on my side, of course, mirrored the above.

On the subject of sodomy, I just wonder how much support the laws would have if the legislatures enforced Biblical sexual strictures consistently. Shouldn't the bedroom police also check for adultery and lusting after neighbors? After all, they're in the Big 10. Then there's marriage after divorce, premarital fooling around, masturbation, and too many others to list.

What everyone needs to learn is that when you tell the government to shaft the other guy, you better start looking over your shoulder. Sooner or later they'll get around to using that power on you.

[Gene 6-Pack]

Wello, if one partner in sodomy were in Texas and the other partner was in Oklahoma, then it would be interstate commerce.

[tonio-k]

and, Larry, don't forget the one of not having any other god. so, Wiccians and Hindus are screwed here.

[not]

it's a hard argument because i think it's apples and oranges, but think the feds had the right to make a decision on both.

[pro-sodomy]

First, I agree that limiting government power -- not just the federal government's power -- is a good thing. But I don't think there's such a big dichotomy between freedom and federalism.

The reason is the Ninth Amendment. You know, the one that Bork thinks we should regard as an ink smudge on the Consitution, or whatever.

The Ninth Amendment was included specifically to counter jackass fourth-grade reasoning like Scalia's ("well, there's nothing in the Constitution about buttfucking, so it must be OK to ban it"). Madison, et. al were worried that a fuckwit like Scalia would assume that since the Bill of Rights doesn't cover *everything*, people have no other rights. So they wrote an amendment to say, "look, dumbass, just because we didn't include a particular right doesn't automatically mean people don't have it."

If the courts ever considered the Ninth Amendment, it would put the burden of proof on the government whenever it tried to take away your liberty.

I understand that the Ninth Amendment could be abused as an intellectually lazy way to settle any case. But at least it shoud be *considered*.

Of course, anti-sodomy laws are also a violation of the 14th Amendment. If straight people are allowed to have sex, gay people have to allowed to have sex too.

[pro-sodomy]

Another example of why Scalia is a retard: He wrote that by striking down sodomy laws, the court was inserting itself into the culture wars.

Ha! That's so fucking stupid it almost makes me cry. *Upholding" sodomy laws, I guess, would have kept them totally out of the culture wars.

I complain about Scalia the most because he's the only justice who sometimes displays some understanding of what the Constitution is actually about (well, Thomas too, sometimes). Scalia is so goddamn smart, and *could* be such a great justice, that it's just disgusting to see his IQ drop 100 points when he's trying to justify some cro-magnon law.

[Skip Oliva]

It's become a popular myth among conservatives that "federalism" is a sacrosanct concept essential to order and liberty. In fact, federalism is nothing more than historical accident: Great Britain simply couldn't govern all of its North American colonies as a single entity. Also, the development of the colonies itself was a fairly decentralized, almost entrepreneurial process. The result was 13 colonies that just happened to develop separately but with certain common interests. Federalism, viewed in this context, was simply a practical recognition of the political structures circa 1787.

If you accept the Founders' principles of a government based on individual rights, then you have no problem accepting the federal government's duty to squash state governments that try to infringe upon said rights. Modern federalist theology, in contrast, views the interests of federalism itself--i.e. state rights--as paramount even when it may conflict with individual liberties. Of course there is no such thing as "states rights," since sovereignty itself ultimately resides with the people. But that's a technical point few conservatives of the Bork-Scalia persuausion care to discuss.

[Scott Harris]

How about the original intent argument. The original intent of the fourteenth amendment was to force states to give newly freed slaves the same rights as other citizens. That was the original intent.

Now, the fourteenth amendment has been used to obliterate federalism because the South was using the federalism argument to avoid the slavery issue. Much like today's pro-"choice" movement uses the freedom of choice argument to avoid the abortion issue. This is what happens when you make a dishonest argument. Things that should have been left alone get hurt in the process.

Ideally, the Supreme Court would stay out of the way of state laws. Just like abortion would have become legal without their interference, Sodomy laws are archaic, and are slowly being done away with. Someone needs to teach the Justices the virtue of patience. They should let the people, through their democratically elected legislatures cross the goal line on these issues. Its like they are afraid of becoming irrelevant, so they push the final way. Of course, in the process, they go too far, and wipe out principals we should have left alone.

As far as the university, I'm for letting them do whatever they want. As long as the people of Michigan allow it, why should I care in Dallas if they give black people an extra 20 points. Even in the decision affirming Michigan's right to enact the "fuzzy math" Affimative Action, Justice O'Conner asserted that 25 years from now, there will no longer be a reason to continue it. Go figure.

So, as long as I get to be a part of making the rules in my state, other states can do what they want. The problem once again is the Supreme Court. I say, "Stay out."

Sigh!

The Constitution is not a contract between the government and the people. It is a contract between the citizens of the USA and themselves determining what power WE give to the FEDERAL government. The government has no rights except those we grant it. Each state should have the ability to enact its own laws within a reasonable framework.

Note: Without the fourteenth amendment, wrongly applied against the original intent of the writers to the second amendment, we would have no federal gun control laws. But states could regulate guns however they wanted. So California cranks, New Yorks ninnies, and Boston buffoons could restrict guns to their hearts' content - and come to Texas to hunt on vacation. Ride 'em cowboy!

[not]

Scott:
I could buy your argument if you had no representation in the federal gov't, but you do.

As far as the Universities go, if they rely on any kind of federal funds the guys at the top are going to force them to do whatever they want. Come on free marketeer, more money means more control. this is the same way it's always gone from fed to states, the 21 drinking age exists due to threats of cutting off highway funds, etc.

just like abortion would have become legal w/out fed action? sodomy laws would've gotten taken off the books anyway? Man, do you have a crystal ball? I sure would like to borrow it.

[Gene]

Jesse: I am the consistent (anti-)federalist you're looking for. I think the Texas law at issue in Lawrence is repugnant; I think affirmative action is a bad policy for its victims and beneficiaries alike. I don't think the 14th Amendment has much to say about either issue.

In the case of AA, there's no persuasive evidence that the 14th was originally understood to establish categorically color-blind government. The same Congress that drafted the 14th passed the Freedman's Bureau act, so it's hard to argue that they viewed preferential treatment toward a historically oppressed group as a violation of the amendment.

In the case of Lawrence, I think O'Connor's equal protection argument has something to it. But the substantive due process rationale the majority relies on is unconvincing (ditto the Privileges or Immunities clause argument that some libertarians advance). In brief, I think one has an uphill battle making the case that the P or I of citizens were understood in 1868 to encompass any form of consensual intercourse. I don't believe the 14th was understood to delegate to the federal courts (or Congress) the power to strike down any and all laws that violate natural rights. If that power was not delegated, then supporting its exercise is supporting a violation of the 10th amendment.

If my word was Law, there would be no affirmative action, the Texas anti-homosexual-sodomy law would be struck down, and, for good measure, the cops that sent Mr. Lawrence to jail would be serving some time themselves. But my word isn't Law, the Constitution is. And not a "living" Constitution that evolves along with the preferences of the men and women who happen to serve on the Court at any given time, but a Constitution whose meaning changes over time only via the amendment process.

Here's my question: if rights-protecting terms like "due process" and "privileges or immunities" take on a broader meaning over time than they had when ratified, then why don't power-granting terms like "commerce"?

[Anonymous]

Scott:

"Someone needs to teach the Justices the virtue of patience."

How long would you have them wait to overturn sodomy laws? They already refused to do it almost 20 years ago. How long is long enough for people to get arrested for having sex? I don't think the two guys in Texas who got arrested would have much use for your "patience" argument.

and,
"the government has no rights except the ones we grant it"

Well said, but why are you so willing to grant state governments so much power?

[pro-sodomy]

Oh, that last comment was me again.

[pro-sodomy]

And my response to Gene:

Because our rights can expand over time (see ninth amendment, etc), but the powers of the government can't be allowed to. At least not according to the Constitution I've read.

Your rights are infinite. You can do everything the government doesn't specifically prohibit, and the things the federal government can prohibit are laid out in the Constitution. The Constitution (at least as understood by all federal justices for many years) also prohibits the states from doing certain things. The fact that certain rights were given special treatment in the Bill of Rights just means that those are the rights that have been trampled on most, the ones the founders thought were in the most danger.

OK, I promise to give this thread a rest.

[M.J. Basial]

Jesse,

Why would you write "Yes, I know, there's no *dubious* constitutional right to privacy involved in the affirmative action case." (emphasis mine)

It sounds like you're suggesting that a right to privacy is *not* included in the 9th and 4th Amendments.

Which, if I understand you correctly, means that you believe the government has the power to snoop into the lives of citizens without restraint. Why then, do we have a 4th Amendment, which specifies when it's OK for the government to engage in snooping?

There certainly *IS* a right to privacy ("secure in their persons, houses, papers, and effects"). I'll grant that interpreting the right to privacy to allow abortion on demand could be considered "dubious", depending on your view of when life begins. But it's certainly correct that making the beast with two hairy backs is within the protection of the right to privacy. At ALL levels of government (see Article VI re: "supreme law of the land").

Otherwise, some majority-gay city council could declare hetero sex illegal within the city limits. Which would be pretty funny for the shock value, but certainly unconstitutional.

[Scott Harris]

Not,

I do not see the logical argument in, "I could buy your argument if you had no representation in the federal gov't, but you do." This is like saying you can't be a member of two groups simultaneously without being a hypocrite.

I can be a member of the local community basketball team, a member of my church, and an employee of my company all at the same time. In each situation, I agree to the terms of membership. My church has no stake in my basketball team, and the rules of basketball have no bearing on my job. Where is the conflict?

Your confusing "jurisdiction" with justice. The Supreme Court has limited jurisdiction as specifically defined by the Constitution. We have a democratic process of amending the Constitution to increase or decrease the Court's jurisdiction. But the Court is (in theory, if not practice) specifically limited to the jurisdiction as defined by the Constitution.

My representation in the Federal Government is entirely separate from my representation in my state government, AS DEFINED EXPLICITLY BY THE CONSTITUTION.

If the writers of the fourteenth amendment had been smarter, instead of overeducated lawyers in love with their own verbage, they would have written simply what they meant to enact.

"Congress shall make no law restricting the rights of citizens based on race or natural origin. All citizens, including all former slaves, and their descendents, of these United States of America shall enjoy equal protection of all laws created by Congress, and their respective state constituions and states laws without regard to race. Congress and State governments shall have no right to enact or enforce laws which identify and treat citizens differently on the basis of race or natural origin."

This would have accomplished the goal of legally ensuring former slaves the same rights as other citizens while still preserving federalism. But the northern states were not content with this. And they did not consider the ramifications of their actions properly. Instead, they relied upon the static quality of the morals of the time. Bad move. What they intended and what they actually did was two different things. "The road to Hell is paved with good intentions." Attribution unknown.

As far as the crystal ball goes, several states had already begun to legalize abortion with restrictions before Roe v. Wade. Many other states had bills in their respective legislatures being debated. Cutting off the debate polarized the argument so that reasonable debate is now almost impossible.

And sodomy laws are so rarely enforced, its a joke. You don't believe me? Read Scalia's dissent. He cites the number of enforcements since 1900, a pathetically low number if society was really serious about sodomy.

We don't make you walk ringing a bell in front of your car as you enter town so you won't scare the horses any more. But the law lasted on the books long after enforcement was ended. Only 14 states still had sodomy laws, and those were being challenged in the legislature. What right does the Supreme Court have to enter the fray? I say none.

[Gene]

Pro: What evidence is there in the debates surrounding the adoption of the 14th that the 9th was incorporated against the states?

[M.J. Basial]

Gene,

In my opinion, you don't need to look at any debates.

I believe the doctrine of incorporation is bunk. Every part of the Constitution, including the Bill of Rights, has always been the supreme law of the land (Article VI). With the exception of the 1st Am., which says "Congress shall make no law", they all apply to all levels of government. I'd still argue that all the rights listed therein are applied to the other levels of government via the 9th, but maybe that's just me.

Yes, I know that historically, some of the Bill of Rights was not held to apply to the States. But it's not like subverting the plain text of the Constitution is a recently-invented game.

(from Article VI: "This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.")

[Scott Harris]

It seems to me many believe that the means justify the ends. The problem is that Supreme Courts decisions radically alter the "means" for totally unrelated issues. That is the danger inherent in any Supreme Court decision.

And making the "beast with two backs" has NEVER been a constitutionally protected right, not even for heterosexuals. That was an unaddressed issue, therefore deferred to the states.

The problem I have with some protaganists in this discussion, is that they seem to impute some specific identity to the states that is separate from its citizens. The states, like the Federal government are limited to the rights granted to them by their citizens.

As a citizen who practices sodomy, you have every right to oppose anti-sodomy laws. Where is the place for the Supreme Court? I still don't see it. The Court is meant to represent the Law as it is written, not as they wish it were written.

The court specifically does NOT have the jurisdiction to correct every injustice. That responsibility belongs to the people, NOT the Court. And the people are represented in the legislature, not the Court. So as the people, if we see injustice, we and we alone have the right and bear the responsibility to rectify that injustice. And our forum, the forum we agreed to as citizens is the legislature, not the courts.

[Gene]

M.J.: There's an argument limited-govt. types like us often use against an expansive version of the Commerce power, an argument used in Lopez. That is, if the Commerce Clause had been understood to be broad enough to allow regulation of intrastate activity, the Southern states never would have ratified the Constitution, fearing regulation of slavery. Surely that argument's just as good against the proposition that the 9th Am protected rights against state depredation from ratification onward. If you don't have a right not to be a slave, what rights do you have? Yet the Bill of Rights, incl. the 9th Am, was understood to apply against the states, it would never have been ratified.

The Constitution is a great document, but it doesn't do every good thing we want it to.

[Kevin Carson]

The Fourteenth Amendment was designed primarily to remedy a specific evil: the "Black Codes" that reduced freed slaves to near-peonage, with class legislation restricting the movement, freedom of contract, etc., that applied only to blacks. The ratification history reinforces the lesson that this was the understanding of the legislatures that ratified it. The "equal protection" clause was about race, not sexual orientation.

That being said, I think as a practical issue the SC should refuse to hear affirmative action cases in most cases. Whites are not an oppressed minority, and not without political recourse in the states, as were blacks during Reconstruction. This is something the people of the states are more than capable of hashing out for themselves without any federal Moses's heart bleeding for the suffering of the poor white race.

[Scott Harris]

I said earlier that "making the Beast with two backs has never been a constitutionally protected right." Maybe the founders never thought sex should be under review by the state. More likely, they thought each community should be able to set its own standards according to its own comfort level. Under that plan, you could have a pro-sodomy enclave.

But our federal system did not define jurisdictions beyond state and federal level. As far as the law, the citizens of each state could have further divided jurisdiction even more to severely limit the power of their state, but they did not and have not done so. And the over application of the fourteenth amendment has actually centralized power in the Federal government more than devolved power to the people.

The fourteenth amendment is just one more penalty we are still paying for the sin of slavery.

[Jesse Walker]

MJ: Don't read too much into the word "dubious." One set of arguments against the sodomy decision has to do with what rights to privacy we have under the Constitution; all my sentence was trying to do was say, "Yes, I know you can raise this other objection, but I'm asking specifically about the federalism question."

[M. J. Basial]

Scott,

Our rights protect us from the interference of government at ALL levels.

Sexual relations are certainly protected by the 9th Amendment. Are you suggesting that the State of New York making hetero intercourse the only acceptable method (i.e. gay sex only) would NOT be in violation of the 9th Amendment? As the 9th points out, just because they didn't list it, doesn't mean it's not a right.

And if it's a right, then you are immune to ALL levels of government intrusion on it. If your city council declares that everyone in the city limits is a Muslim from now on, you don't have much freedom of religion, do you? Which would make it not actually a right, after all.

[Croesus]

Scott,

Actually, if you were to read proceedings of the Select Committee on Freedman, the Senate & House Judiciary Committees, the Joint Committee of Fifteen (molded together from the first three committes above), and the comments of the father of the 14th Amendment (Rep. John Bingham R-Ohio) you will find that it had much more of a purpose than merely to protect the freedman; in fact, your reading is part of the old discredited line of thought that emerged from the Slaughterhouse Cases in 1877. The 14th Amendment was addressed to more than merely the newly freed slaves, it was addressed to as it states "all persons," and any other reading of it is patently ahistorical.

[Scott Harris]

For those who don't understand, or dislike Federalism, we have a current event that is a case study in why Federalism exists. Just look at the process of the EU trying to become the United States of Europe. Each nation has its own culture, its own tradition, and its own laws. Each smaller nation is leery of giving up sovreignty to a central government. And each individual nation has an equal vote regardless of population differences.

If you think the thirteen colonies were homogeneous, you are badly mistaken. They were not as different from each other as the current European nations, but there were real differences.

[M.J. Basial]

Gene,

You're certainly right about the Constitution not doing everything we want it to. For crying out loud, how about some penalties for government violations thereof? There might actually be a shred of it left if people went to jail now and again for passing and enforcing b.s. laws. No one is watching the watchmen.

Scott,

Agreed on us still paying the price for the sin of slavery. The cognitive dissonance in the Constitution is pretty amazing (hey, you have all these rights -- unless you're a slave, in which case you have none).

Personally, I suspect that ditching the South and having a smaller, more free Union might have been the way to go.

[Croesus]

This is why people like myself tend to think of many libertarians as outright nutballs; they will sacrifice the liberty of others on the alter of the abstract ideal known as "states' rights." An ideal which to be frank has been the stalking horse for the worse crimes against humanity (including Indian removal I might add) this nation (the USA) has ever committed. Its why nutjobs like Lew Rockwell can say with a straight face that Lincoln was some sort of satanic menace as compared to the practice of slavery in the Confederacy.

[Scott Harris]

Croesus,

I'll defer to your knowledge of the specifics of Representative Bingham. But the great moral conflict, the one that was shelved during the Revolutionary War against England, was slavery. If you read the writings of the founders, even the slave holders saw the storm brewing.

I suspect, that just like the southern states chose to argue states rights rather than defend slavery, and just like we pass entitlement legislation that benefits wealthy people who don't need it, Rep Bingham's argument for all person was meant to blur the underlying intent of helping those who were being put down.

But, having just fought a war to "preserve the union" under which South Carolina probably did have the right to secede, it makes sense that the fourteenth amendment was at least partially intended to destroy some state autonomy.

But I still come back to saying the fourteenth amendment was primarily about ensuring the rights of freedmen, hence the names of the commitees you cited.

[Croesus]

Scott,

The reason it had to protect "all persons" is obvious - it was not meant to be legislation meant to merely protect one class of persons. In fact, it was meant to generally protect all persons against the rampant abuses of the state governments. Again, your reading is the discredited version of the Slaughterhouse Cases - a version motivated to no small degree by the racism of the Supreme Court at the time.

[Scott Harris]

Holy Cow, Croesus!

Just because the southern states used the argument of states rights to defend indefensible positions doesn't mean the concept is flawed. At its roots, the principle of states rights is about DILUTING the power of the central government. I believe this is a noble goal. The closer power resides to the people, the better.

And I do not call myself a libertarian. I do not believe all government is bad. I just think it has more chance of being responsive to the people if all but the most basic powers reside in the smaller forms of government.

And having sex cannot be an individual right because you cannot have sex with yourself. So how can you define a personal right when the act you propose to protect is not "individual?" Furthermore, we have thousands of laws on the books regarding sexual activity precisely because its a joint act. Laws against specific acts of sex as well as laws against sex combined with other things like force and coercion. Now if you want to defend the right to masturbation, I'm with you. But barring that one act, all laws are intended to govern the actions between people. Sex is such an action.

[Croesus]

Scott Harris,

When the States are the central power, how is power diluted? The problem with the "States' Rights" ideology lies in the fact that you are merely shifting authority from one government to another - there appears to be no real dilution.

[Scott Harris]

Croesus,

I cannot defend myself against the evidence you cite, because I have not seen it. I am unfamiliar with both the specific arguments in Congress about the fourteenth amendment, and the Slaughterhouse cases.

But, I am familiar with the overarching issues of the time. You yourself have said the Slaughterhouse cases were decided by a "racist" Court. So, you are implicitly admitting that race was a predominant issue.

I am having a hard time understanding why it is so important to you to deny that race was the fundamental cause of the 14th amendment. I have already said that the states' rights argument was a straw man intended to divert the attention away from the true issue of slavery. Do you agree? Or are you in the camp that says the south was truly making a states rights case? You cannot have it both ways. Either the Civil War and the amendments to the constitution were about slavery, or they were about states rights. Which is it?

[Scott Harris]

Croesus,

Your obviously much smarter than the snti-dilution comment above. Any third grader can divide by fifty and knows a fraction is less than the whole. You can do better, Please!

[Scott Harris]

anti-dilution, anti-dilution... Must learn to type.

[Croesus]

Scott Harris,

That's a false choice; in fact, they could be about both. As I have explained it in lectures, the rationales were intertwined - slavery came to mean states' rights, and states' rights came to mean slavery. In pamphlets, editorials, etc. that circulated in the South from the 1830s onward, you will see the trend to treat them as synonymous.

Actually, I have not denied the importance of the racial terrorism in the creation of the 14th Amendment, however, I have stated that neither its sole or overaching purpose was to protect the Freedmen - it was viewed as way to curb the abuses of state governments generally, be they against the Freedmen or other minorities.

[Croesus]

Scott Harris,

Whether power is held by a cabal at a local or a national level doesn't seem to dilute power to me. It may devolve it, but that's a different story. However, if you think that power was somehow diluted by the retreat of the last Federal regiments from the South in 1877, as a part of the compromise that year struck over the Hayes-Tilden election, then you are sadly mistaken. Power was in fact concentrated, as it had been before the Civil War, and wielded by Southern state governments which disenfranchised freedmen and poor whites, supported the murder of politically active freedmen, and passed laws to strip economic independence from freedmen. I have not much but contempt for the ideology of "states' rights."

[not]

Scott:

I find your argument interesting when you say that the laws are frivilous since they aren't inforced anyway. So, what's the big deal if the feds stuck down meaningless bs? Also, is there really a gauge written in the books saying, "well, this law is meaningless now, we are no longer going to enforce this."

That makes every piece of legislation that that government produces worth the paper you wipe your ass with. A law is a law. If i can arbitrarily just determine that a law on the books is old crap, how do we determine what is enforceable? Laws such as these need to be purged from the books if they are deprecated. Don't be so literal in your interpretation of documents, such as the consitution, if you are able to read so much between the lines (by inferring that some laws are meaningless) in other government documents.

Also, the feds definitely have the right to squash state laws that limit the freedom of individuals. I would hope that this is distinctly their purpose. i do agree that while this may not explicitly be part of the constitution, it can definitely be inferred...that is why they were so vague. how flexible is a document that would list every covered right? that's rediculous.

but, obviously you have your views that differ from mine. that's what makes life interesting.

regards,

not

[Gibbon]

All right, all you 3rd-year law students, listen up. What we have here (and what we lost) are not "rights" by any means, but "privileges." We're right back where we started 1,000 years ago. Where the King hands down privileges or punishments to his subjects, far below.

Live with it.

[Roberts]

"A Constitution's meaning changes over time only via the amendment process." -- Gene 4:25

Keep dreaming, Gene!

That process died with the last one. There will be no more amendments. Who needs 'em? Judicial now has so much power
that any future changes will henceforth simply come from their gavels, and no longer from quaint ideas like "amendments."

And remember: When you tell (any) government to shaft your neighbor, you better start locking your own door. Sooner or later it will come around for you, too.

[Scott Harris]

Croesus,

Granted, the fourteenth amendment could be about both, especially in light of the merging meanings because of the southern states abuse of the states rights principle to defend the practice of slavery. But states rights originally had to do with just that. The rights of the states. The same argument going on in Europe right now.

You may defend the right to have sex however you choose as guarded by the 9th amendment. But that view surely does not square with history. As I have already stated, there are hundreds and thousands of laws concerning sex on the books. Sex with any one and however we choose has obviously never before been considered a fundamental right. This is something the Court made up. And by their assertion, all other laws pertaining to sex become endangered. You may agree with that position, but it is not historically supported.

As far as dilution of power, state and federal governments are another check and balance. Do you disagree with bicameral legislatures? Do you disdain separation of powers between legislative, executive, and judicial branches?

I have often wondered about the motivation of people who despise states rights. What is so wrong about having to make your case on the state level as well as federal level. Sure, its easier and more efficient to have one central government, but it is also easier for tyranny to take hold when power is centralized.

Also, states run the risks of becoming pariahs if they do not eventually conform to a national standard, so there is a leveling effect over time. There are many issues I disagree with that are public policy, but I believe in our system.

It seems you want to take a short cut. But the long process of state-by-state campaign and discussion usually results in more generally accepted principles. And there are some issues that are truly regional. Take gun rights. In densely populated areas, your neighbor's gun could be a legitimate threat. In sparsely popolated regions, that threat is lessened. It is dangerous to assume one size fits all.

[LeFevre]

Scot Harris, I like the way your mind works.

Good thinking, when you mention that most rules are enacted to operate in the arena of RELATIONSHIPS between sentient beings.

If you lived on an island by yourself, there would be no need for any such rules. There, only natural laws (like gravity, centrifugal force, and the laws of thermo-dynamics) would have any effect.

[Scott Harris]

Not,

I'm not saying laws are frivolous so they don't matter. But there is a process by which laws die. That process includes the gradual unwillingness of the public to prosecute them.

The Court didn't have jurisdiction, plain and simple. This is an issue that should have been decided at the state level.

[pro-sodomy]

Scott,

So sex isn't an individual right because it involves 2 or more people? What about speech? Is free speech only an individual right if you're talking to yourself?

[Keller]

Prosod, we have a mouth and we have our own ears.

The "free speech" issue comes into play primarily and specifically when that mouth intends to pass info along to several other ears "out there."

Like Island Man LeFevre said, who cares when you're mumbling to yourself.

[pro-sodomy]

Well, the mouth is relevant to a sodomy discussion, but the ears ... ? You guys are into some kinky shit.

[Scott Harris]

Pro-sodomy,

Touche! But as my great-great-great-great uncle said. You can't shout fire in a crowded theater.

Having sex is probably a fundamental right, kind of like breathing. Nature demands it for the preservation of the species. But sex "any way you want it with anybody" has never been considered a fundamental right by any society in the history of the world.

Now, if you are proposing we become the first to do so, then let's let all child molesters and rapists out of prison right now. Just be prepared to make your case state by state.

[not]

the above argument is flawed for the fundamental reason that sex without a VICTIM is a right. i guess for mr. literal we have to say sex between consenting adults.

[not]

regarding the progression of laws fading out by the *courts* (public...please) being unwilling to prosecute.

perhaps the federalist ideal is weening out since it is no longer being enforced. similar natural progression.

[pro-sodomy]

Wow. I'm not sure this discussion can go anywhere, now that you've said that allowing gay sex means we have to let rapists and child molesters out of prison. I mean, do right-wingers really think that? It must be just a scare tactic.

I really shouldn't have to say this on a Reason discussion board, but ...

Rape and child molestation are *crimes* because they have *victims*. Sex between consenting adults is *not* a crime, because it has no victim. It's pretty basic.

Yep, that's right, I'm asserting my right to have sex "any way I want it with anybody," as long as they want it too. I really don't care if various governments in world history have recognized that right. Up until the Enlightenment, there was hardly any concept of individual rights at all, in any society. So fucking what?

The opinions of the citizens or lawmakers of my state, or any state, have no bearing on that right, either. Why should my neighbor get to veto who or how I want to fuck? Why should my legislature? If it takes the Supreme Court to tell them to butt out (so to speak), then so be it.

Point is, I don't have to explain where my rights come from. The state has to explain where it gets the authority to take them away, and they'd better have a damn good reason.

[Victoria]

?sex without a victim is a right.?

NOT!

You have absolutely no right to have sex UNLESS YOU ARE MARRIED.

And don?t give me this ?consensual? business!

What if the young lady ?consented,? and then got pregnant, and then you abandon her, and there she sits ? burdened with your offspring, and having no idea how to take care of it by herself.

How?s THAT for a ?reason,? hmm, Prosod?

Placing yet another burden onto ?society? through tax-funded programs is not the answer either.

And if you?re thinking gay sex ? forget it. That?s not sex. That?s face entertainment.

[not]

Victoria has now tread this thread even further into ignorant bliss.

[Scott Harris]

Your assertion: sex without a victim is right. Fine. Then, since law and history has not agreed with you, make your case. Embark on a campaign of discussion and persuasion. That is your right under our system.

But having your assertion be declared true by the Courts and bypassing the legislative process is a flawed process. It may work in the short term, but by consolidating power in the court, you run the risk of an idealogically different Court taking your rights away without due process.

I keep harping on it, but process matters. The ends do not justify the means you defend. Can you not see the danger ahead of you?

[Neet She]

Sure can, Scott. Haven't you noticed? Even the law students have scrambled away onto private venues somewhere, to carry on their ivory-tower blather in ignorant bliss.

All of them, except you. Why are you still here?

Like the man said, several posts before mine -- NONE OF THIS MATTERS one iota.

So just back away from this screen, shut it down, and go roller blading, or TV gawking, or ice cream licking, or whatever it is that makes you happy out there.

Because when all is said and done, in the end, THAT is all that matters.

[Scott Harris]

Well, we are making progress. Now you admit "Sex" is not a fundamental right, since there can be victims.

So now the argument has changed to "sex without a victim" is a fundamental right. But then the law is all about defining victims and victimizers, so I guess we're back to the government has the right to regulate sex. I'm getting dizzy.

Ok. Define consenting adults. Define consenting. Define Adults. Whoops, more laws. Gee Whiz! I guess we just cannot get away from pesky regulation.

Then we get to what the definition of "is" is. Does consenting mean, I consented at the time; I consented before, but changed my mind before? After? I was sorry a week later, so in retrospect, I don't consent.

You try to limit this decision of the Court to "gay sex", but the scope of the decision reaches far beyond just "gay sex." You are purposefully obtuse if you cannot acknowledge that fact.

Then we leap frog into the whole area of fraud. "She told me she was using a contraceptive, so I shouldn't be responsible for her baby." Who's lying? The man or the woman. I consented to have sex, but I didn't consent to become a father.

What about AIDS and other STD's. Was the consent "fully informed." And on and on and on and on.

Their are some of you who are so blinded because of your focus on "gay sex," you have no rational ability to extrapolate this Court's decision to its logical ends. And for you, reason is a lost cause.

These are issues that should be decided by the people. Not the court. Can't you see that?!

[Scott Harris]

I am not a lawyer or a law student. I am an engineer. I manage an air conditioning business. And the free exchange of ideas does matter.

[Neet She]

The free exchange of ideas matters only when (and if) the Supremes are spending their weekend here, reading this stuff.

But I doubt that very much. You won't find them anywhere near H&R for the simple reason that they need to spend time with Dubya's myrmidons instead.

Election coming up, you know? Gotta get the right rules down. Got those votes to win -- blacks, gays, who cares. Just git'em, whatever it takes.

We may be urinating all sorts of sense here, but I just feel this very strong wind hampering my efforts.

[Neet She]

PS. My PC rebooted through Bill Gates' flag, and right back again -- during my attempt to turn it off. So I figured, what the hay, let's check the room one more time.

As an airco man, Scott makes some great points. but wouldn't it be more effective if he were to follow Mr.Smith's course of action?

(Smith, as in Jimmy Stewart.)

[Scott Harris]

You make the critical mistake of asserting that ideas only matter when expressed to those who obviously hold power. But I believe (maybe naively) that the power belongs to the people. And the big problem I have with the Court's decision is that it takes power away from the people.

Now for whatever group is being preferred, maybe they gain a little power at the expense of the rest of us. But the net effect is a net loss of collective power. That is why free expression of ideas matters, even if the Supreme's aren't listening.

[Anonymous]

Good Christ, I can't believe I won't let this lie, but I have to ask:

How does allowing two men to have sex with each other give them power at your expense? I mean, it gives them power, but how does it take power away from the rest of us? And how are sodomites being "prefered" if they're given the same rights as everybody else?

Scott's logic is a bizzare fetishization of majority rule -- it doesn't matter what the majority decides, as long as they're the majority. The court can't strike down any law that's popular.

[pro-sodomy]

I guess the difference is, Scott's worried about power, and I'm worried about freedom.

I have no desire for power over others. I just want everybody to be as free as possible.

Since we're starting with such different goals and assumptions, we can't really get anywhere by arguing.

[NeetShe]

OK, Scott, I gotta go. Really. I agree with you, in spirit, of course!

But like Von Mises, Rand, Tucille, Rothbard, et al ? such freely exchanged ideas only seem to come to fruition several generations hence.

So unless you're writing for the benefit of my grandchildren and yours, I'll see you in a few decades (or in the next life.)

Because from the way things are going, it just ain't gonna happen for us TODAY.

Good job, though! Hasta la vista.

PS. To Anon and Prosod, sorry to disillusion you, but we happen to be living in (what was supposed to be) a Constitutional Republic that uses a DEMOCRATIC PROCESS where two wolfs and a sheep vote on what?s for lunch. Tough!

[Neet She]

PPS: Prosod, go get laid. Anon, you too. I'm gonna go lick some ice cream. Let's go get happy.

Scott, it's hot. And since you're an airco main, I'll leave you with a good one I heard yesterday.
"It was so hot here today, I saw a cop chasing a mugger, and they were both walking!"

Bye!

[Scott Harris]

The Texas sodomy law was not restricted to "gay sex." It defined Sodomy more broadly than that. Also, I don't have a problem with the law going away. I have a problem with the principle introduced by the Court that was used as justification to strike the law down.

The Supreme Court recognizes that it is limited in jurisdiction to Constitutional issues, deciding issues of Interstate Commerce, and cases between the States. So, in order to justify striking down this law, they had to create a new right out of thin air. The specifically did not repudiate the Bakke decision, so what was the justification. Their personal opinions were the only justification. And their personal opinions should not matter any more than my opinion or yours. They have the same right to vote as you do.

You are concentrating on what they did. I am focused on how they did it, and the ramifications of the how on other things.

And freedom is individual power.

[Scott Harris]

Full Disclosure:

I had a gay roommate in college who died of AIDS. I have been propositioned by gay men four times. 1) in high school by another high school kid. 2) in high school, by a trucker passing through town (glad my picture is not on a milk carton), 3) while in college, by a male prostitute in a theatre, and 4) during a supposed job interview by a married man.

So, 3 out of 4 was either criminal or coercive. I am not particularly sympathetic to the gay lifestyle, particularly after watching my friend wither away and die. I was the only one willing to be his roommate, because in the late 80's many, including my fiance (now my wife) was afraid of getting infected.

So call me a homophobe if you want, but I've walked the walk. And I even engage in heterosexual sodomy (oral sex) as defined by the Texas law. So, being a Texan, I am not sorry to see it go. But, we should have done it in Texas, not Washington. Subverting the democratic process is rarely the right course of action.

If the Supreme's can impose their opinions on us, then why can't the abortion protesters bomb clinics. Both are the unwilling imposition of their personal opinions of citizens. The Court does not have the right to strike down any unjust law. For those who think this is their purpose, I am sorry. But the same reason we tolerate skinheads, is why we should not let the Court operate outside the law.

Someone said I am more concerned about power than freedom. But increasing the power of government always reduces our freedom. Power and freedom are two sides of the same coin. A Monarch has absolute power and absolute freedom. The same cannot be said of those who live under his rule. If you love freedom, you must protect your own power and the power of each of your fellow citizens.

[not]

The SC has sole authority to interpret the US Constitution. The "public" you speak of does not. The SC has jurisdiction to strike down any state law it sees in violation of federal law. Since the Constitution is fed law, and the court interpreted the TX law to be in violation...viola.

case closed.

[Evan McElravy]

"And don?t give me this 'consensual' business!

What if the young lady 'consented,' and then got pregnant, and then you abandon her, and there she sits ? burdened with your offspring, and having no idea how to take care of it by herself."

Rarely a problem with sodomy, Victoria, of any sort. So by your standards, does this make it superior?

[James]

I think it comes down to equal protection under the constitution. State law should be challenged in the federal courts if one has a case of the law violating constitutional rights.

[Mark S.]

This is conumdrum that goes all the way back to the Civil War, and I'm afraid that Libertarians need to sit down and re-think their postitions on the whole state's rights issue. Why would legislation that would be considered draconian and tyrannical if implimented on the federal level suddenly become acceptable if it were passed on the state level? A true libertarian would philisophically oppose a sodomy law regardless of what level of the Federalist ladder it was passed. Why should a state law that seeks to punish adult individuals for engaging in consential behavior that harms no one simply because the Madison didn't think to put any verbage directly relating to privacy or even sexuality in the Bill Of Rights?

It's high time we lovers of freedom ask ourselves what is more important: Freedom or the Constitution, because it's sadly and ironically becoming apparent that the two can be mutally exclusive.

[James Antle]

I oppose both anti-sodomy laws and racial preferences, but I'm not sure where I stand on the Supreme Court getting involved in either.

I think, however, there is a distinction that might explain why a principled federalist could argue that Texas' anti-sodomy law was an issue for the Texas legislature while Michigan's system of racial preferences are an issue for federal courts.

Texas' anti-sodomy law existed independently of any federal edict, whereas affirmative action as as practiced by federal contractors emanates at least in part from federal law. And if you are a public or private university that accepts even one applicant who is a federal student loan beneficiary, you are deemed a federal contractor for these purposes. Racial preferences are often adopted to insure that there is adequate diversity to demonstrate compliance with anti-discrimination laws and federal affirmative action guidelines.

So while in principle, it might be better for the states to handle the issue - as Charles Krauthammer argued in a recent syndicated column, although his concern was less federalism than a preference for legislative solutions over judicial solutions - in practice there are some federal questions that have to be answered. Anti-sodomy laws are dumb state laws; racial preferences exist at least in part due to attempts to conform with federal laws and regulations.

I'm sympathetic to the point about federalism versus freedom made by Mark S. But I think having a government with powers that are limited and divided among different decentralized levels of government confers its own pro-freedom benefits. This does not mean that federalism will necessarily maximize freedom for every person on every policy question all the time. But I think overall, people will be freer under a system of decentralized government, where if nothing else they have more escape routes from tyranny, than under a highly centralized unitary state.

[Hovig John Heghinian]

"Mark S" espouses a dangerous position. If we Americans think sodomy should be legal or illegal (for example), we should pass an amendment to the Constitution saying so in clear terms. The problem here is not whether states rights should apply in one case but not another, but how states rights are defined by the Constitution, and how the Supreme Court decides exactly what is prohibited. I would prefer the Court err on the side of states rights, since doing otherwise leads to a sort of oligarchical theft of power from the democratically-elected legislature. (It's not that bad in reality, of course, but that's the theoretical case, and that's the reason the powers were separated in the first place.)

Having said that, people seem to forget the easiest remedy to such a quandary is to pass a Constitutional Amendment which addresses it directly. The sodomy law is not a perfect example, because it is arguably a safe decision. For example, some fear this decision might protect such "private" acts as incest; others argue incest is not protected because it effects others beyond the two "private" actors. So, it is probably not the case that the sodomy decision will protect incest, but the problem is that it's not clear what the exact Constitutional issues are, and that's the real problem.

A better example will be marriage. Does the Constitution protect homosexual marriage? Let's not go there right now, let's stick to the pertinent questions of states rights: (1) Does the Constitution have anything to say about this matter RIGHT NOW; (2) Do the American people want one outcome over the other; and (3) If the answers above are "no" and "yes", are Americans prepared to create a Constitutional Amendment to clarify the issue once and for all?

We must stop blaming the Supreme Court for defending our laws. It's not an issue of states right here, but federal rights there. It's an issue of what the Constitution says, and what the Constitution doesn't say. If the Constitution says something we don't like, or fails to say something we do like, then we need to pass an Amendment, and clarify the issue once and for all. We cannot expect the Supreme Court to solve these problems for us, and we cannot keep blaming them for doing their job.

[Mona]

Victoria, failing to inform a sex partner that one carries an STD is a moral and legal wrong for which there ought to be redress. But it is not a reason to support laws such as the anti-sodomy one the High Court just struck. Heterosexuals cost you money as well, when they reproduce willy nilly. Perhaps we should stop funding treatment for AIDS and illegitmate children. But as a disease worse than the cure, I can think of notnhing more hideous than the state policing consnesual adult sex for the purported reason that some of these encounters may cost the taxpayer some money down the road. By that reasoning, every private, consensual choice has ramifications that permit the state to dictate behavior, from our diet, to our (lack) of excercise, to smoking and drinking, and using drugs.

By your "reasoning," the only sex the state should permit would be lesbianism: dykes have the lowest incidence of STDs and no pregnancy unless they decide they want to be pregnant. But somehow I don't think that will persuade you. You seem to be quite the moralizer who is careful to add a footnote about taxpayer expense to redeem your pontifications.

[Sebastian]

So Mona,

What's wrong with finding justification under the 9th amendment for the right to any private sexual behavior between two consending adults? Strict constructionists seem to want to ignore th 9th amendment entirely, but it was obviously put there for a reason.

True, some of our founding fathers may have thought buggery was not a protected right. I don't know about you, but I don't really want to be stuck in the 18th century conception of rights. Attitudes and beliefs change, it stands to reasons that our rights should be able to expand along with changing attitudes.

I would certainly agree that an amendment would clarify the issue, but I don't have a problem with a broad reading of the 9th amendment. I'd prefer to live in a country with more rights, rather than less.

[Croesus]

Scott Harris,

What makes your arguments stupid is the very structure of the Constitution, with its majoritarian and anti-majoritarian aspects.

[Victoria]

"Rarely a problem with sodomy?"

"Of any sort?"

You haven't been listening, Evan.

Allow me to paraphrase: What if the fellator or anulator 'consented,' and then contracted AIDS or some other STD because the consent wasn't fully informed -- and then you abandon him, and there he sits ... burdened with your disease, and having no idea how to take care of it by himself.

Here again, placing yet another burden onto ?society? (actually, a burden on MY pocketbook) through a tax-funded program, does not lend any kind of validity or superiority to this kind of "consent" either.

In fact, this kind of entertainment that wants to pass for a "right" to "do my thing" (on my dime) is not only inferior in its arguments ? it is downright irresponsible in its ultimate effects.

[Mona]

Sebastian: The 9th amendment, whatever it means, was a limit on the power of the federal govt. What we just saw in the Texas sodomy case was an empowered *federal govt voiding a *state law. And from whence comes this power? The ideological preferences of a majority of 9 unelected lawyers, who have no warrant in the Constitution for what they wrought. When power is assumed, it can be used to grant, or contract, rights. I vehemently believe it is anti-demcoratic to celebrate the assumption of this power.

Thomas's dissent is basically correct, except I would not describe the Texas statute as "uncommonly silly," since locking people up for consensual sex is beyond silly; it is outrageous and immoral. But that is not sufficient reason to strike it in the name of the Constitution. I went to a very conservative law school -- Notre Dame -- and the religious, right-wing faculty member who taught me Con law is convinced there exists a natural right of man to live, a right that extends to the unborn. If he were on the High Court, he would therefore invalidate any state law *permitting abortion and he would do so in the name of unenumerated, natural rights. He, of course, lacks a majority on that Court. Now. Today. Has not always been so, and may not be again. The only protection from such judicial legislating is a bench that abides by the text and honest historical context of the document they are charged with applying and upholding.

Anything else turns the Court into a supralegislature.

And Croesus, yes, the Constitution is a counter-majoritarian document -- and so a majority of 9 honestly applying it are awesomely empowered to tell the state to f*ck off when it runs afoul of that document. And that is an awesome power, to thwart majority will -- as such, it begs for warrant beyond the political preferneces of a handful of attorneys. Tyranny is counter-majoritarian, too. And if a small cabal of lawyers doesn't restrict itself to some pricipled jurisprudence, as opposed to imposing their own political preferences, then we have tyranny. Fiat embraced will not likely be restricted to limits you and I like. This decision was a display of raw judicial power, and it is so even if, as I do, one likes the result.

[ray]

The Texas law really does have more to do with the issue of privacy than it does with what people are trying to keep private. Sodomy, or any other private sexual matter is secondary. So the question is not really a matter of assigning a ?right? to sodomize your buddy but whether or not the state can legislate what two consenting adults do behind closed doors.

?But if states' rights outweigh that business about "equal protection under the law" when the issue is sodomy,?

This is where the question seems go askew. The 14th Amendment has nothing to do with sodomy. You may not be able to discriminate against obese people but they do not have a constitutional right to more pudding than I do. The pursuit of happiness may include sodomy and gluttony for the gay and obese (or perhaps doubly so for obese gay men) but they do not have specific rights entitling them to those things.

The gay rights crowd are angling for such rights for their own reasons and the moralists are fighting specifically for sodomy laws to keep, in their eyes, other more egregious acts illegal. They?re both wrong.

But the 14th Amendment addresses the equality of people before the law, not the specific acts that may make them different. If a transvestite applies for a job as a bank teller ? picture Ernest Borgnine in a dress and sloppy lipstick ? and the person doing the hiring decides not to hire him. Not because he really cares what this guy may do behind closed doors but because he is scary looking and would be bad for business. Is that discrimination? A Christian organization is running a thrift store and needs to hire a clerk. They do not want to hire an openly gay man or even a heavily tattooed and pierced straight man. Are these acts of discrimination. These people are defined not by their ethnicity but by their personal habits or practices that, theoretically could change.

So the Texas case is most definitely not a federal matter because it does all hinge on privacy, something not guaranteed by the Constitution.

Affirmative action is by definition, racial prejudice. This violates the 14th Amendment explicitly even if it is for supposedly positive reasons and so therefore is a federal matter.

[Scott Harris]

Mike S.,

Contrary to popular opinion (in some part erpetuated by Texans), our knuckles do not drag the ground in Texas. And "christo-fascist" is stretching it. There is no widespread coercion and violence enforcing the Christian world view in Texas or anywhere in the USA.

BTW, my best friend is from Wisconsin, so maybe his Midwest reasonableness rubbed off on me. But then again, he is a "christo-fascist" pastor of a church in Lacrosse.

Mona,

Thanks for the support.

Croesus,

I'm sorry you think I'm stupid. I have a higher opinion of your intelligence, and I will look into the history of the 14th Amendment and the Slaughterhouse cases because of your posts.

To all,

I've said all I can say on this subject. I will read your reponses and comments. I believe its great to live in the USA where we don't have to fear the knock on our door for being part of this thread. (see stories on Iran)

Happy fourth of July to everyone. Happy Birthday USA!

[Rupert]

"The 14th Amendment addresses the equality of people before the law, not the specific acts that may make them different."

Evan, using the very same O'Reilyistic examples you cited, what are people devoid of their specific acts? People are not static, inanimate objects. People act. We don't legislate against people; we legislate against a person's ACTIONS.

I refer you to von Mises' treatise on Praxeology: http://www.mises.org/audio.asp

But you said it yourself, "These people are defined not by their ethnicity but by their personal habits or practices ..."

And while I'm bringing up such quibbles, is there ANYTHING that is actually guaranteed by the Constitution? From the moment they were enumerated, every one of those Amendments have been violated, ignored, twisted, perverted, and in some cases simply shelved.

A "guarantee," after all, is no better than the person(s) behind it.

[Rupert]

Excuse me, Ray Gardner -- I called you "Evan." (Don't know where I got that. Sorry.)

[Rupert]

Ray, to be more specific (regarding Praxeology) ...

If you are visually oriented, then go here and take your pick: http://www.google.com/u/Mises?hl=en&q=praxeology

If you are more audio-oriented, and prefer to listen to Hans-Hermann Hoppe's treatise on Praxeology, then go to the link in my previous post above.

[JD Weiner]

Mona: Thanks for posting your 12:57 comment! I suppose I shouldn't be surprised, but even here, a lot of people don't seem to be able to grasp the difference between what state legislatures can do MORALLY (by our libertarian standards, at least) and what they can do LEGALLY. I think that freedom is the highest human value, as I'd hope many people here do, but you can't use that as a justification for the government to ignore its own law, because if you do, you pave a road for it to ignore its law for any reason, and that will ultimately be more destructive to liberty than letting one anti-sodomy law stand.

[Timothy Klein]

I like Scott Harris' logic, but don't like where it leads. To me, freedom of sexual interaction is a right left to the people, not to the state. But some would argue otherwise. The Supreme Court is meant to be the supreme interpreter of the law. The transcendent law in America is the Constitution. So what do they do if they feel a particular law violates the constitution? No, I'm serious. What should they do? Should they have that power?

The way the Supreme Court is being employed these days is dangerous. But so is homophobia. It seems one of the greatest weeknesses in the Constiution is its hand-waving at 'other rights' the people reserve. What the heck are these rights? Who gets to decide? To me it is patently obvious that it is none of any governments business whom I fark (and how I fark them), what drugs or food I ingest, whether or not I pay for sex. But many (most?) others disagree.

We are left with a tough business. But I guess that is democracy.

[Croesus]

Scott,

I didn't say you were stupid, I said your comment is stupid. There is a difference.

Mona,

I really have no issue with the judiciary being lawmakers; if you see that as rule by fiat, fine, but I view it as simply a part of the Anglo-American legal tradition.

[crusher]

"A lot of people don't seem to be able to grasp the difference between what state legislatures can do MORALLY ... and what they can do LEGALLY." -- including you, JD Weiner.

Legislatures can only "do" legally. Unless a legislator is at home, or at the mall, or at the beach -- away from the capitol (or wherever it is he legislates) -- he cannot "do" morally.

Morality is a personal, individual code of conduct that does not operate at capitols.

[Ray Eckhart]

Scott,

How would you square Romer v Evans? Does the state (via state-wide referendum) have a right to overturn local law, achieved through the political process?

[Sebastian]

I certainly don't want to see the courts being able to pass laws by fiat, but I see a difference between passing laws and invalidating them. The the broader the scope of our rights, the more free we're going to be.

Mona's interesting example of her professors belief that abortion should be illegal, because of a natural right to life that even the unborn possess, attempts to make a case for strict constructionism. I'm not sure I buy it though. I think the fundamental issue in abortion is where life begins. This debate has simply been extended to the courts because of legislative attempts to curtail abortions. If there were no attempts to regulate abortion, the courts wouldn't need to be involved at all.

I'd like to understand how society would fall apart at the seams if the courts were in the business of invalidating more laws under the 9th amendment. The alternative is to have a lengthy and inflexible constitution, that I do not think would stand the test of time. The amendment process is (and should be) a task of herculean proportions.

I think there's just too much room under a strict interpretation of the constitution for all levels of government to trample people's rights. I acknowledge that playing fast and loose with the meaning of the constitution has allowed for broadening federal powers at the expense of the states and the people. I suppose what I'd prefer to see are judges and justices who strictly interpret government powers, but broadly interpret the rights of the people.

[Alice]

Mona, tey went looking for life on Mars. Didn't find any. Nothing stirred. It was all just inanimate matter.

But when the doctor aborted whatever was in me, they found a lot of stuff stirring in there; cells, living tissue; complex molecules; intricate organisms; entire systems interacting with one another -- in short, the structured animus we call LIFE.

[Anonymous]

Mona, they (they) went looking for life on Mars.

[Alice]

BUT ... still -- whenever it is that life begins, it is NOT up to a court to decide what I do with my own body.

[Mona]

Croesus: our Anglo-American legal tradition allows judicial lawmaking for *common law doctrines and gloss on statutes that do not apply and/or interpret themselves. But the TX anti-sodomy statue was invalidated pursuant to a document with four corners, namely, the Constitution; like Roe, this sodomy decision exceeded those corners and simply makes up rights that are in tune with the majority's (and my) political preferences. If a right can be extended to homosexuals -- ignoring the arugments at least some Americans make as to why such sex is wrong and immoral -- on what principled basis would any of you object if a majority ruled that the unborn should be extended a right to life and thus abortion is unconstitional? Note: I wrote UNCONSTITUTIONAL. Not immoral: the Supremes are invoking a particular LEGAL document, and where therein is anything applicable to sodomy or abortion addressed? I assure you, medical testimony can be marshalled to show that life begins at least by the embryonic stage. If a majority find that evidence dispositive -- whether you do or not -- and vote accordingly, might you not want to ask where in the fuck they get their authority? Or are you going to do that only when you don't like the result?

So Croeaus, those of you who feel as you do should have the balls to simply shitcan the charade of applying a document containing specific language and boldy propound that you vest the Supremes with plenipotentiary power to rule as they like. This cloakiung fiats in absurd Con law language is intellectually repugnant and offensive. Unelected small band of lawyers uber alles, as long as we like what they do.

[James Merritt]

Sebastian says, "I suppose what I'd prefer to see are judges and justices who strictly interpret government powers, but broadly interpret the rights of the people."

That does appear to have been the original idea. Me, too!

I have always expressed that idea in a slightly different way: a law that establishes, extends, or restores freedom should be easy to pass and nearly impossible to overturn, but a law that restricts freedom should be hard to pass and subject to repeal. This is similar to the principle in American law, whereby jury convictions can be appealed, but jury exonerations are the final word (at least, for those who honor the fifth amendment).

[Phil]

And having sex cannot be an individual right because you cannot have sex with yourself. So how can you define a personal right when the act you propose to protect is not "individual?"

And thus disappears, on the whispering wind, the right to peaceably assemble, which you also cannot do by yourself.

[Stickler]

"And thus disappears, on the whispering wind, the right to peaceably assemble, which you also cannot do by yourself."

And good riddance! After all, someone in the assembly might have a communicable disease! Pretty soon everyone there's caught the flu, and the original sneezer goes home, abandoning everyone else. He's placed yet another burden onto "society" (actually, a burden on MY pocketbook) through a tax-funded program. That does not lend any kind of validity or superiority to this kind of "consent" either.

Free assembly is slavery! Free love is coercion! War is peace!

[James Merritt]

Scott Harris says, "And making the 'beast with two backs' has NEVER been a constitutionally protected right, not even for heterosexuals. That was an unaddressed issue, therefore deferred to the states."

Not exactly, as I read the document, anyway. The people have a right to be "secure in their persons, houses, papers, and effects," according to the 4th Amendment. This is NOT mentioned as a limitation only on the federal government or one of its branches. And the implication of this provision is that "a man's home is his castle." Said another way, as long as I'm not harming or endangering anyone else, whatever I do in my own home is none of the government's business; indeed, it is government't JOB to create that situation of security for me, or at very least respect it.

The States may have the jurisdiction, constitutionally speaking, to prohibit sexual acts in public, whether hetero-, homo- or what have you, though I would think them unwise to exercise that jurisdiction, as the existence of "victimless crimes" really seem to corrupt the rule of law. But the Constitution does put a big roadblock in the States' way if they expect to break down someone's door, in order to catch him or her engaging in some verboten sexual practice. That certain people have failed to recognize or extend that constitutional protection in the past only means that people can be wrong for a long time before they are right.

After all, what does "secure in one's home" mean, except the right to live your life as you wish within your residence, without someone breaking in to disrupt your plans or routines? There are a jillion and one activities that would be covered under this umbrella, and you would certainly have a "right" to engage in every one of them -- including all forms of sex, I'm sure -- within your own home and with freely consenting guests.

I suppose prisoners in a jail cell are "secure in their (temporary, state-supplied) homes" too, in a very distorted way, but that is surely not the kind of existence foreseen and provided for by the framers of the constitution ... is it?

[Douglas Fletcher]

I wish there was a self-enforced 150 or 200 word limit on these posts. Then I might actually read some of the crap I just scanned over.

[tuplustu]

Amen, Doug -- that makes five of us.

(But then they wouldn't have a way to impress us with their verbosity, would they.)

[Sebastian]

So then how does one deal with the 9th amendment? It seems disingenuous to simply pretend it's not there. What role are the courts to play if not a check on the power of the legislature? While I recognize there's room for abuse in a broad reading of the constitution, I'm not sure there's any theory that's perfect. The judiciary is always going to be an institution comprised of imperfect humans with their own ideas and beliefs. If you restrict them to the letter of the constitution, then it would have to be an inflexible book to properly protect all our rights. If you don't, you can open the door to other problems. I suppose it's a matter of what tradeoffs you're comfortable with.

[Anonymous]

100 comments -- all on a freakin' *weekend*? Holy fuck.

[sho host]

AND THE WINNER IS ...

An anonynmous poster who can do no better than bore us with expletives. Sort of like a hobo winning the powerball, isn't it?

(The 100th poster.)

[Beth Rock]

"If you restrict them to the letter of the constitution, then it would have to be an inflexible book to properly protect all our rights. If you don't, you can open the door to other problems. I suppose it's a matter of what tradeoffs you're comfortable with."

Tell you what, let's just dispense with the Constitution. The timing would be perfect ... (The week of July 4th, 2003.)

I mean why bother with it at all? What's the point of having a yardstick, if we're going to simply dance around it and go the other way? If we're only going to make a mockery of the standard, or constantly quibble about it -- occasionally glancing at it when it's convenient -- then why have a standard in the first place?

[Mark S.]

"But, we should have done it in Texas, not Washington. Subverting the democratic process is rarely the right course of action."

And what were the chances of the Texas legislature withdrawing such a law... let me think, the state is run by GOP christo-facists...hmmmmm... oh yeah, ZERO TO FRICKEN' NONE!

Can you also explain to me why the whims of the mob--I mean the "democratic process"--be allowed to subvert freedom?

[Mona]

Well I am a lawyer, and Scott Harris has it just right. All of it. I adopt his every word that I have read in this thread, from his criticisms of Roe v. Wade, to the danger of voiding the Texas anti-sodomy statute.

Sodomy was a felony at common law in 1791 when the Bill of Rights was adopted, so it boggles the mind to think the drafters and ratifiers thought they were voiding that proscription -- if they did, there was an utter absence of debate about the issue. Now, I *do* think there should be a constitutional amendment adopting a right to privacy for all consensual behavior that does not directly impact on others, including the right to ingest mood altering substances. But the fact is, that right is not yet enumerated, and as Scott says, process does matter. Tyranny of 9 unelected lawyers is swell when one likes their edicts,less so when their ideology is not as pleasing.

I like the result of what the Court did in striking that wretched law, but the way it got there is corrupt and intellectually indefensible.

[James Merritt]

I like the Cascadia wesbite that no-name posted above. Reminds me of "Ectopia" from the Nine Nations of North America (http://www.harpercollege.edu/~mhealy/g101ilec/namer/nac/nacnine/na9intro/nacninfr.htm). I note that there is talk on the Cascadian website of "annexing" Northern California. I wonder what the people of the State of Jefferson (http://www.jeffersonstate.com/) might have to say about that. I wouldn't be surprised to see all or part of California secede over frictions caused by the medical marijuana state's rights issue. On a visit to a Haight-Ashbury TShirt shop several years ago, I encountered a shirt emblazoned with the "Great Seal of the State of North California." I wish I had bought it then, as I cannot find it now. Central in the great seal was -- you guessed it -- a pot leaf (and, if I recall correctly, a fairly mellow Grizzly Bear in the background).

If the nation falls apart, however, I doubt that any of the resultant mini-nations will come up with a constitution that tops the one we have now. If only people would read it, understand it, and defend it. The "flatulent thrashings of decline" that no-name mentions are so unnecessary, so avoidable...

[ray]

Rupert;

The 14th Amendment is, in my opinion, a questionable thing anyway. Nonetheless, if you start granting rights based on private, personal habits, then the door is wide open to the kind of special rights that every activist whack job in America is seeking right now.

Go and read the first paragraph to the 14th and you tell me how your previous statements stack up against it.

I noticed you didn't actually confront anything I wrote but merely slapped on some mild ad hominem and referred me to someone else. Nice. That's always the first sign of a superior intellect.

[H&R's beancounter]

"people like Reason don't pay for message board posts." ??

James, my boy, have you been the only one here who's been working for nothing? You mean, you've been slaving away with your deft prose for all these months without getting paid for it?

Tsk, tsk, what a pity.

But, hey, you can't go demanding any back pay now, y'hear? It's too late for that. Sorry.

[iluvusa]

Did you notice the "Republic of Cascadia" 35c stamp?

Please don't tell me that its post office also consists of hundreds of mailmen sitting on a turtle, annually feeding the beast ever-higher-priced stamps dangled from a stick.

I obviously didn't bother following the squint-fest on the site, but with Hongcouver at its center, does that mean Cascadia will have a wide-open-door immigration policy as well?

And the setting sun ... so depressing. Sun never rises in Cascadia?

[Good riddance]

the only negative effects of judges striking down laws that oppress people is the loss of freedom of the majority to impose laws on others. you fear the SC not for its ability to make laws, but its ability to get rid of laws. how can tyranny exist in a vacuum?

so, if you see the SC as eroding freedom, i guess you are saying that you have the fundamental right to criminalize the actions of others. is that written in the constitution? you fear your ability to tell others what to do based on your view of marality is eroding...good riddance.

perhaps it is the anarchist in me, but regardless of the who's and how's i enjoy watching the laws of this land get thrown out.

let this lead the way to prostitution, gambling, and drug use in US citizen's homes being legalized. libertarians should not look a gift horse in the mouth, but should take advantage of the situation. i know the process may not be ideal, or by the book, but what ever is?

[Eric the .5b]

If people would do some research on pre-Civil War Constitutional law, they would notice that yes, indeed, the states had power nearly unlimited by the US Constitution. In the early 19th century, many states had official churches, for instance. The only real Constitutional check on state governments was the federal responsibility to ensure that every state had "a republican form of government".

However, the 14th Amendment nationalized the Constitution's limits on government to also apply to the states. And not just the Bill of Rights - post de facto laws are also verboten, for instance. Whether or not this sits well with any of you, this really isn't arguable in any honest sense. If y'all really want to remove those Constitutional limits on state governments, get an Amendment passed.

Now, the real problem in my eyes with the 14th Amendment is that it has been applied very selectively, as current SCOTUS doctrine is to limit the application to rights and freedoms they consider "essential". In other words, states get slapped when they violate the First Amendment, but not the Second. But that's not a Constitutional issue, just a bad case law issue.

[James Merritt]

"i guess you are saying that you have the fundamental right to criminalize the actions of others..." -Good riddance

Excellent point, GR (in a very worthwhile post). Or, applied to taxation, some people feel that they have the fundamental right to appropriate other people's property for "a good cause." Same difference...

I celebrate the right to vote in our democratically flavored republic, but when I walk into the ballot booth, I delibertately look at the questions and candidates on the ballot as invitations to beat up on someone, or to join in with egging someone else on, while THEY beat up on someone. Why? Because as a voter in a democratic process, I almost always have the POWER to beat up on someone (metaphorically, by passing a tax, or literally, by declaring a crime to be punished or a behavior to be enforced, for example). But I rarely have the RIGHT to do so. If you see what I mean. I wish more people did.

[Funky Winkerbean]

There's no law that says you have to follow case law.

[P.Mason]

"There's no law that says you have to follow case law."

No, but you'll never get a job at any law office if you don't.

[Anonymous]

When the tree is rotten to the core, it's better to cut it down. Better to let new seedlings rise up out of its corpse.

Also you have to get through the Nazgul Nine before you can cut off the Ring of Power held by Greenspan. Think about it.

[Croesus]

Mona,

Actually, judges in the Anglo-American tradition have also had much to say about "constitutional rights" as well as the common law in general. This is of course what seperates the common law legal system from the civil law system. In fact, many of the rights in the uncodified British constitution were established by judges, not by the Parliament.

[Anonymous]

I agree with Beth. The Constitution (like the UN, I might add) has become a mockery. Ironically, the best thing for the Union at this point is the devolution of the State. It has become a tired, gasping and wheezing ediface to the impotence and recklessness of Federal Power. Having it go on is like having life without parole. Put this little beastie to bed. It's time to put it out of its misery.

Arizona and Texas may have the balls to secede (and maybe annex New Mexico, hehe). As well, the Republic of Cascadia makes a lot of empirical sense. The US has already begun its slide into irrelevancy. Why not hasten the process and save everyone involved the bother of the flatulent thrashings of decline?

[James Merritt]

"I wish there was a self-enforced 150 or 200 word limit on these posts." --Douglas Fletcher

By coincidence, Fletcher's post appeared right after my two, which were 112 and 363 in length, respectively, for a total of 475 words. A bit over his recommended limit, but from what else he said, I gather that he may not have read them anyway, so I hope that means I didn't waste his time. I also had to go through the entire 100 posts before even getting to the point of making those two comments.

I've had quite a few letters to the editor published, over the years. I don't say that to blow my own horn, but to make a point about brevity and editing. Here in my town, the LTE limit is 200 words. It takes a lot of editing time to squeeze any coherent argument more complex than "four legs good two legs bad" or "you're either with us, or you're with the terrorists" into a note of that size. And you can certainly infer the truth of that, by looking at editorial pages in most daily and weekly newspapers.

When the topic is close to my heart, or I feel an especially urgent need to make a point that I don't see being made by anyone else, I will spend the time and effort necessary to fit into a 200 word box. But with a job and a family, I don't have a whole lot of time for too many such exercises. Newspapers don't pay for LTEs and people like Reason don't pay for message board posts. In both cases, the people who bother to speak up have other motivations for doing so.

In a message board situation, it's a lot easier and quicker (for the writer, at least) to dash out somewhat longer pieces that cover the ground you wish to discuss, and then post what you have when you run out of time. I don't like doing that, but even if I had all the time in the world to craft haiku-like gems, the nature of message board publishing is that, if you spend too much time polishing and pruning, your finely honed prose will arrive too late to be relevant to the discussion. Indeed, the discussion thread itself may disappear or scroll into obscurity by the time you get back to it. Then, your time and effort are completely wasted. By posting the first draft, you run the risk of people not reading something that exceeds "25 words or less." But for anyone with a serious point to make, not participating in the discussion at all is worse than having a few people pass up one's contribution, as bad as that outcome might also seem. You just have to try not to waste people's time, make solid points, and hope that your wheat vs. chaff ratio stays high enough for people to want to keep reading what you're writing.

The great thing about message board format is that you can indeed skip material, As Fletcher did, if you are running short on time and patience. It's not at all as if someone came to your door, stopped you on the street, or called you on the phone, to harrangue you.

Sorry this is off-topic, but I really wonder what people who seek extreme brevity expect to find in a place like this. Or how they expect any intelligent conversation at all through the trading of zingers and sound bites of four or five sentences each. I'm not saying that Mr. Fletcher is such a person, but I certainly have seen comments similar to Fletcher's by many of them on the handful of idea-oriented message boards I have time to visit regularly. A prudent brevity promotes discussion, but there comes a point where too few words waste just as much time as too many. I come to message boards to participate in something that is a bit higher on the quality scale than the soundbite interviews we see on shows like the O'Reilly Factor, or that we hear ad nauseum on talk radio.

Are message boards and talkback threads to become yet another form of fluffy infotainment? How would such a development be much different than telling people to sit down, shut up, and enjoy the soma?

[James Merritt]

"people like Reason don't pay for message board posts." ??

James, my boy, have you been the only one here who's been working for nothing? You mean, you've been slaving away with your deft prose for all these months without getting paid for it?---BeanCounter

Droll, BC, droll. My point was that posts here are for love of the topic, not money. The only slavery that would be involved is if we thread-comment contributors were arbitrarily constrained to keep our arguments within a 100-200 word box and also not get paid. What do people want for free? Having a little flexibility on the length saves casual contributors from having to spend so much time editing disposable postings that they can never be timely, or worth the investment of sweat and braincells...

[joe]

Christ on a cracker!!!

116 comments!

[Hank]

Originally, the ninth amendment did only apply to the federal government. But it embodies the natural rights principles set forth by the nation's framers -- establishing that certain liberties pre-date entry into organized society. Once the 14th was ratified, federal power was extended greatly into the states; in fact, the 14th exists to prevent the states from denying "liberty" without "due process of law"...And that "liberty" is firmly grounded in the ninth.

So the proper path, imo, is to hold the states accountable via the 14th to the liberty standard espoused in the ninth... Remember, the word "liberty" here has FEDERAL meaning, because it's in the 14th... Do we ignore it? Or do we reconcile it with the framers' notion of "liberty"? It's innacurate to call such analysis judicial "fiat", when it's the constitution itself that extended the federal power...

[Perlov George]

EMAIL: [e-mail]
IP: 62.213.67.122
URL: http://uncircumcised-penis.nonstopsex.org
DATE: 12/21/2003 01:01:32
What's on your mind, if you will allow the overstatement?