Conservative Inadvertently Asks The Right Questions

In a Sunday New York Times op/ed, Princeton University jurisprudence professor and conservative pundit Robert George questions the Supreme Court's justification for finding a "so-called right to privacy" in the Constitution based on the 14th Amendment. The 14th Amendment declares, "nor shall any state deprive any person of life, liberty, or property, without due process of law."

George pointedly asks:

"On what constitutional basis can we say that abortion is protected by "due process" but a right to assisted suicide - unanimously rejected by the court in 1997 - is not? Why is sodomy protected and prostitution unprotected? Why does the right to privacy not extend to polygamy or the use of recreational drugs?"

George clearly finds all of the activities he listed distasteful and immoral and wants the Supreme Court, Congress, state legislatures and county commissions to outlaw them all. Yet, he asks exactly the right questions--why should the Supreme Court permit any level of government to interfere with these private pursuits?

Comments

[Jaybird]

Cash flow.

[Aaron]

Because both parties are all about telling people what they can't do? The difference seems to lie in what the can't dos are.

[jf]

By the same token, why is growing marijuana in your backyard for your own consumption considered to affect interstate commerce, while abortion, which removes a potential consumer from the economy, uses equipment generally made in states other than where the procedure is performed, and creates biowaste which must be dealt with according to federal regulations, is not?

[Akira MacKenzie]

George clearly finds all of the activities he listed distasteful and immoral and wants the Supreme Court, Congress, state legislatures and county commissions to outlaw them all. Yet, he asks exactly the right questions...

I hate it when someone asks the right questions for all the wrong reasons.

[Yaron]

You seem to be making stuff up here - where do you get the idea that he wants any of these things outlawed? He just wants a legislature to be allowed to outlaw them; not at all the same thing.

From the snarky headline, and previous things you've written, I really get the sense you have some sort of personal dislike of conservatives beyond issues of policy.

[Akira MacKenzie]

Because both parties are all about telling people what they can't do? The difference seems to lie in what the can't dos are.

Remember, American politics is all about two goals:

1. Getting as much money and/or power for yourself and your allies.

2. Screwing everyone else (and not in the nice way).

[Larry]

Slightly off-topic, but I've been wondering what would happen if those of us in support of the right to privacy were to highlight the idiocy of state legislatures -- such as the folks in Virginia which, until Hardwick overturned them, had laws banning oral sex on the books.

[thoreau]

He just wants a legislature to be allowed to outlaw them; not at all the same thing.

The Judean People's Front Steering Committee recognizes that men can't actually have babies, but they should still have the right to have babies!

until Hardwick overturned them, had laws banning oral sex on the books.

The case was actually called Hardwick? Seriously?

[Akira MacKenzie]

You seem to be making stuff up here - where do you get the idea that he wants any of these things outlawed? He just wants a legislature to be allowed to outlaw them; not at all the same thing.

The operative word of your remark is "outlaw." Doesn't say that we would allow the states to "legalize" any of the above. So, yes, it's the same thing.

From the snarky headline, and previous things you've written, I really get the sense you have some sort of personal dislike of conservatives beyond issues of policy.

Now who is making stuff up? Since when does pointing out that you disagree with a conservative (or anyone for that matter) a sign that you take a "personal dislike."

Oh yes, I forgot. This is Dubbya's America and ifin' you aint fur us, your again' us, Right?

[fyodor]

I think Yaron's distinction is valid because there's a difference between whether a law is a good or bad idea versus whether it's constitutional or not.

But it's certainly not clear that drug laws are constitutional to anyone who believes that the 9th Amendment makes clear that our government was founded on the concept of a being limited to particular legitimate areas of concern, not that it can do whatever the hell it wants except where the Constitution specifically says no.

[Isaac Bartram]

I thought Hardwick was the GA case where the Supremes upheld sodomy laws. 1986?

I think Lawrence is the TX case where said Supremes overturned sodomy laws. Last year?

[Matt Bruce]

Honest question for Ron, Akira, or anyone else who cares to answer:

Why do you say that George "clearly finds all of the activities he listed distasteful and immoral and wants the Supreme Court, Congress, state legislatures and county commissions to outlaw them all"? Unless this is extremely subtle dry humor, I see no reason to make that inference.

George's argument closely resembles one I've frequently had to make in real life about the "right to choose" slogan.

(Data point: with the exception of abortion I am heartily in favor of every practice mentioned in the quoted paragraph. Aren't you?)

[linguist]

Akira,

Though I'm not sure I stand by Yaron's opinion, he is right about the snarky headline.

"Conservative Inadvertently Asks the Right Questions" implies that no Conservatives would ever ask these questions for the 'right reasons'.

I'm assuming you actually do understand the underlying logic here, and were just being disingenuous.

[Ramon Rozas III]

The scary thing is, I partially agree with George. There's likely no right to privacy in the 14th Amendment - its in the 9th!

[fyodor]

Oh come on folks, can't someone just make a point through flippant exaggeration without being nitpicked to pieces by the party poopers anymore?!?

1/2 🙂

Okay, all seriousness aside, it's obviously going too far to imply that conservatives are somehow unable to think that all these private matters should be legal or that there's a consitutional case against all the laws that prohibit them, but it's hardly typical conservative fair to favor extending the right to privacy to polygamy and the use of recreational drugs. Right?

[Akira MacKenzie]

"Conservative Inadvertently Asks the Right Questions" implies that no Conservatives would ever ask these questions for the 'right reasons'.

Is George asking this question for the right reasons? If not, then at least ONE conservative wouldn't, and that's too many for my tastes.

[fyodor]

Hmm, I guess "fair" shoulda been "fare."

[Kermit]

Matt Bruce:
(Data point: with the exception of abortion I am heartily in favor of every practice mentioned in the quoted paragraph. Aren't you?)

Prostitution denigrates women and panders to the most base natures of society. Decriminalize, but don't encourage.
And would you really want to have more than one woman mad at you all the time? Polygamy (shudder).

[linguist]

Is George asking this question for the right reasons? If not, then at least ONE conservative wouldn't, and that's too many for my tastes.

Then, why not, "Pundit inadvertently asks right questions"?

[dead_elvis]

Decriminalize, but don't encourage.

But the problem is that politicians always spin permission to be promotion.

Typical debate:

Legalization advocate: "blah blah blah, usual arguments"

Politician: "why do you want little children to be high all the time?"

[Akira MacKenzie]

Prostitution denigrates women and panders to the most base natures of society.

Ignoring the silly claim that the desire for sex is "base," how does paying a woman for sexual favors any more denegrating than giving a woman a house, a car, a diamond ring in exchange for the promise that she'll screw you once or twice a week? If marriage isn't legal whoring, then we need to call the lexographers at Webster's and make sure they've got the definition straight.

[fyodor]

Decriminalize, but don't encourage.

Ditto to dead elvis. Please don't you Kermit keep perpetuating the notion that these two totally separate matters are somehow tied together!

[fyodor]

Ditto to Akira, too.

Except that I'll add in the question: is it more denigrating to women to allow men to pay them for sex or to put them in jail for being willing to sell it?

[Mike]

how does paying a woman for sexual favors any more denegrating than giving a woman a house, a car, a diamond ring in exchange for the promise that she'll screw you once or twice a week?

If that's you're idea of marriage, you must be a pathetic wretch.

[Yaron]

Akira,

The operative word of your remark is "outlaw." Doesn't say that we would allow the states to "legalize" any of the above. So, yes, it's the same thing.

Well, everything's legal until there's a law against it. If there was a massive outcry to make, say, drugs legal, federal laws would be overturned, then state laws. But, alas, there's no such outcry. The question is, does the constitution prohibit a "tyranny of the majority" here? R.P. George doesn't think so, and I don't see it either. It can't be said enough - nowhere in the constitution does it say, "you cannot make bad laws".

As to the author's bias, I'm thinking of a post a few months ago where Bailey attacked President Bush for not federally funding stem-cell research. A reasonable libertarian might call that ban a "good start".

[Akira MacKenzie]

Well, everything's legal until there's a law against it. If there was a massive outcry to make, say, drugs legal, federal laws would be overturned, then state laws. But, alas, there's no such outcry. The question is, does the constitution prohibit a "tyranny of the majority" here?

I guess if the majority wanted everyone to jump off a cliff, we'd all have to follow too, right. I mean, the constition shouldn't prohibit a "tyranny of the majority." Tyranny is A-OK as long as it's done in the name of "states rights," correct?

A reasonable libertarian might call that ban a "good start".

Are we talking about not funding stem cells or banning them? You use both terms. If it's the funding, ideally I would agree that such research belongs in the private sector. If you mean ban out right, then no it wouldn't be a "good start" unless they're one of those libertarians that want to extend human rights to zygotes in the name of the imaginary superbeing they think we have to worship.

[Akira MacKenzie]

If that's you're idea of marriage, you must be a pathetic wretch.

Yes, it is. However, how this makes me a "pathetic wretch" remains to be seen.

[M1EK]

"Because both parties are all about telling people what they can't do? The difference seems to lie in what the can't dos are."

Yeah! Also, this guy I know who shoplifted a couple of times is just as bad as Ted Bundy. See, I'm unbiased; I called them BOTH bad!

[fyodor]

It can't be said enough - nowhere in the constitution does it say, "you cannot make bad laws".

Thank you for a very good description of the Statist view of the Constitution. Translated, the government can do anything that the Constitution does not overtly specify that it cannot do. I guess the 9th Amendment is truly a "blot" on the Constitution, or whatever is was that Bork called it....

[Yaron]

Are we talking about not funding stem cells or banning them?

Sorry, I meant banning federal research.

[Yaron]

...federal research funding. Dammit.

[Akira MacKenzie]

Thank you for clarifying, Yaron.

[Realist]

All of George's comparisons are red herrings except the recreational drug use part.

[John]

I support legalizing many of the things listed there. I do not, however, support giving up my rights as a citizen to vote on and debate these policies by declaring them "constitutional rights" and yielding my rights and duties as a citizen to a judge.

The exchange does prove something by the negative. It is pretty clear that the writers of the Bill of Rights or the 14th Amendment never intended polygamy, prostitution, or drugs to be a constitutional right enshrined in their document. Yet, if you follow the logic of recent Supreme Court cases beginning with Griswald, as this exchange points out you pretty clearly end up these things being protected as constitutional rights. The obvious response is that the Constitution evolves as society evolves and that it is wrong to just read into the document the narrow view of its drafters. Okay, fair enough, but exactly by what standard do we determine which rights are worthy of this evolving constitution? Clearly, it is not popular consensus, because the majority of Americans do not support legalizing any of these activities. Further, even if you can point to this or that poll that says they do, their elected officials certainly don't seem to reflect that. Again, the question is how and by what authority did these "rights" arise between the Constitution and the 14th Amendment's drafting in 1789 and 1865 and now?

The only way I can see them arising is because a few people in elite positions and a few judges in particular have decided that they are there. That is a pretty piss poor and undemocratic way to run a government. Even if I support he results, the un-democratic and elitist means can never justify them. In the end, the exchange makes a very good point.

[Realist]

It is clear that the 9th amendment says there are unenumerated rights. Thank the intelligent designer that at least our founders but in the enumerated rights they did or we'd live in a country with only the rights a legislature might give us.

John, you need to go read the Lawrence opinion because that decision is grounded in liberty and its due process via the 14th Amendment. The right to privacy is not the basis of the opinion because it puts the burden on the wrong party. Rights imply something given to you by government. Liberty implies that you have control of your own freedom and for the government to ingringe that liberty it must show good cause.

[Akira MacKenzie]

I do not, however, support giving up my rights as a citizen to vote on and debate these policies by declaring them "constitutional rights" and yielding my rights and duties as a citizen to a judge.

Then what does and what doesn't a right? If there is a right for an individual to use drugs, solicit a hooker, have more than one spouse, or any other action, why should we have to have them recognized by our government, be it federal or local? After all, they are our rights.

[Akira MacKenzie]

Whoops! That should be: Then what does and what doesn't constitute a right.

[fyodor]

John,

I don't know where people get the right of privacy from the 14th Amendment, but I think the 9th Amendment makes it clear that rights do not have to be specified (I believe "enumerated" was the language used) to exist, and and this is according to the writers of the Bill of Rights. My understanding of the Framers' understanding of rights, which I learned from a very Conservative professor, is that they were based on English Common Law, which was indeed developed over many years by (eek!) JUDGES. And according to this understanding of rights, it is the authority of the government over its citizens that requires articulation, NOT the authority to limit the government's powers. This is not contradicted by the fact that legislatures were bent on depriving people's rights even back in the day nor by the possibility that many of the Framers held views that may have contradicted their own clearly stated principles. Human nature, that.

[John]

Realist,

I have read the Lawrence opinion and I disagree. The basis of it is the idea that the government cannot regulate anything between to consenting adults without a compelling reason. If taken to its logical conclusion, things like polygomy and beasteality ought to not only be legal but a constitutional right, which is clearly not something ever intended by the founders. I ask you again, exactly where did these things become rights beyond a few elitists like yourself dreaming them up? You seem to think that the Consitution was meant because of the 9th Amendment to be a 1960s anything goes libertarian document. No one least of all the people who wrote it, the population of the United States or anyone who has actually won an election believes that the 9th Amendment or the Constitution means that. Yet, we have five members of the Supreme Court who have decided that it does. How do you justify stretching the text that far and more importantly, what is to stop a future Supreme Court from deciding that the document means that we have fewer rights not more? Afterall, if Lawrence is allowed to stand, neither elections results or founders intent mean anything when interpreting the Constitution. Therefore, there is no reason why some future generation of judges cannot decide that the text needs to evolve into a much more totalitarian document than it is. Indeed, this has already happened with regard to the equal protection clause and affirmative action. The document evolved to read white men right out of the Amendment. Thanks to McCAin Feingold the First Amendment now protects everything but what it was written to protect, namely political speech. What is to stop this from happening further if the intent and common understanding of the document can be disregarded? Lawrence makes me fear for my liberties not feel safe about them.

[John]

Fyodor

Under the English Common law there is no formal Constitution and Parliment can always override a judicial decision. Not that I would want to go to that system, but it seems to me that there has to be a system for interpreting the Constitution other than, "the judge said so", which is what Lawrence looks like to me.

[fyodor]

John,

Well, somebody's gotta say so. If it ain't the judge, then who? The problem with giving it to the legistlature is that it's a classic conflict of interest. They get to decide the constitutionality of their own laws?? Also, the courts cannot act, they can only react. Thus, balance of powers. And don't forget, judges are appointed and confirmed by the same people popularly voted into power to pass and execute laws, so it's hardly like they inherit their position at birth or win it through military conquest or something. Their power does NOT come from outside the democratic process. You might as well say cops have no authority because they weren't directly elected!

[John]

First, there is nothing in the Constitution that gives the courts the ultimate authority on what the Constitution means. That is neither here nor there. I don't have a problem with the courts interpreting the Constitution or even having the final say in theory. What I do have a problem with is the courts completely ignoring the intent of the drafters and the plain meaning of the text on the basis of an evolving Constitution. Lawrence is a great example. When the Forth Amendment and the 14th Amendments were written, sodomy was illegal. No one who drafted those Amendments dreamed in a million years that they would make Sodomy a "right". Why is it a right now? The only reason I can see is that five judges decided it was based on the circular logic that what other judges had said in other cases made it so. The constitution as written ought to be a restraint on judges as well as government. As it is, it is no restraint since the court can make the terms mean anything they choose.

[Realist]

John, you completely misunderstand and mistate the Lawrence decision. As long as you play on Scalia's field and assume rights are only to be granted by government unless specifically enumerated and there is no personal liberty upon which government cannot infringe, then of course you can say "there's no right to sodomy in the Constitution!" because I don't see it there. The SC found in Bowers that there is no right to sodomy using this standard but in Lawrence the court did not all of sudden find that right in overturning its precedent. Instead it grounded its decision on liberty and due process via the 14th Amendment priviledges and immunities clause.

I suggest reading the following excellent piece by Randy Barnett (who argued the Raich case last year):

http://www.randybarnett.com/pdf/revolution.pdf

[Phil]

The basis of it is the idea that the government cannot regulate anything between to consenting adults without a compelling reason. If taken to its logical conclusion, things like polygomy and beasteality ought to not only be legal but a constitutional right, which is clearly not something ever intended by the founders.

Under what schema, for the purpose of finding a right to bestiality, is an animal considered a "consenting adult?"

Poor John. He doesn't want to live in America where neither he nor some petty tyrant cannot have a say over where people put their penises. Tell me, John, which part of the Constitution gives government the enumerated power to outlaw blowjobs and butt-fucking?

Generally speaking, IMO, the intent of the founders can go jump in the lake. I don't live in 1789, and have no intention of letting people drag the country back there. The founders didn't intend for women, nonwhites, or nonproperty owners to vote, so you'll forgive me for not constantly deferring to the wisdom of their intent.

[thoreau]

I support legalizing many of the things listed there. I do not, however, support giving up my rights as a citizen to vote on and debate these policies by declaring them "constitutional rights" and yielding my rights and duties as a citizen to a judge.

I don't actually want to dictate how my neighbors live their lives, but I want the right to dictate how my neighbors live their lives.

Akira-

If that's your view of marriage then Jennifer is right: Your bad luck with women is a function of your attitude.

[Akira MacKenzie]

If that's your view of marriage then Jennifer is right: Your bad luck with women is a function of your attitude.

Actually, my bad luck with woman has more to do with my fear of rejection and fact I'm too afraid to ask them out. My views about marriage have nothing to do with it.

Now, what ARE my views toward marriage? Personally, I think it's a waste of time and effort. Why do I need cosmic approval from some imaginary friend for me to have live with a woman (or a man), have sex, and raise children? If I really do think that I want to spend my life with another person, I should need anyone's approval--not the government, nor some mythological being--to do so. I'd just do it.

That said, let's be honest and admit that monogamy is a myth. We want to screw other people, it's in our genes and, biologically speaking, it may be better for us to spread the genetic diversity around than keep to one partner. However, no thanks to the brain-dead religions we've invented out of our neuroses, we've somehow convinced ourselves that we have stand fucking the same person "till death do us part." Is it any wonder we stray?

Of course, just because we are promiscuous doesn't mean we create loving relationships and families and have extra-marital partners. What we have to do is abandon the possessiveness that goes into our relationships and stop being uptight when our partner wants to be with someone else for a while. In fact, our partners may actually stick around longer for the kids if we let them play around a bit rather than constraining it with the fascism that is "traditional family values."

[Akira MacKenzie]

Error: ...I shouldn't need...

[thoreau]

There are many happily married atheists out there who think that there's more to marriage than paying a woman for sexual favors. As a scientist I know lots of atheists, many of them happily married. I've never heard any of them describe marriage as paying for sex.

[Realist]

This quote by Thomas Aquinas says it best:

"Now human law is framed for a number of human beings, the majority of which are not perfect in virtue. Therefore human laws do not forbid all vices, from which the virtuous abstain, but only the more grievous vices, from which it is possible for the majority to abstain, and chiefly those that are to the hurt of others, without the prohibition of which human society could not be maintained; thus human law prohibits murder, theft and the like."

[Dave W.]

until Hardwick overturned them, had laws banning oral sex on the books.
The case was actually called Hardwick? Seriously?

Isaac is right. Here is the real story on Bowers V. Hardwick (wonderfully captioned, badly decided, now overturned):

http://en.wikipedia.org/wiki/Bowers_v._Hardwick

[anon]

Trust me. Robert P. George, natural law Catholic and author of _Making Men Moral_, wants to outlaw all those things; and he was among the contributors to that First Things symposium a decade ago about whether Chistians could be expected to treat a government that permitted abortion and homosexuality as legitimate at all. He's not simply after states' choice.

[John McAdams]

Robert George isn't inadvertently asking the right questions, he's just asking the right questions.

Judicial activism isn't any more principled than Congressional legislation. If the cultural biases of the judges say that sodomy isn't so bad, but incest is, sodomy will be legalized, and incest not.

The truth is that there aren't may libertarians in the world, and this includes judges. Judicial legislation won't be consistently libertarian, in spite of an occasional outcome or two that libertarians happen to like.

Have you paid attention to the cases where U.S. state courts ordered more taxing and spending on education?

Remember forced busing for racial balance in the 70s and 80s?

John

[dhex]

"That said, let's be honest and admit that monogamy is a myth."

here's to a decade of the power of myth!

seriously, stop being such a virgin, d00d.

[Realist]

Granted the Lawrence decision is likely to be a one-off and is inconsistent with how the more liberal members of the court view fundamental rights any time a good decision comes forward it is a good thing.

The Supreme Court is political and there is no way it is ever going back to the pre-Roosevelt Court packing era.