Supreme Court

Does Gorsuch Stand with Scalia on Sodomy Laws?

An issue the Supreme Court candidate should address.

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Neil Gorsuch
Bill Clark/CQ Roll Call/Newscom

During his Senate confirmation hearings, Neil Gorsuch may be grilled on such legal topics as due process, enumerated powers and stare decisis. I'm hoping the discussion will also get around to a less arid subject: sodomy.

Not that I care what the Supreme Court nominee does under the sheets, and the dialogue I envision would probably qualify as PG-13. But his view of two major rulings on state laws banning certain types of sexual conduct is worth investigating. A candid discussion might make Americans wonder whether the judicial philosophy he upholds is quite as appealing as it sounds.

In nominating Gorsuch, President Donald Trump wanted to duplicate the late Justice Antonin Scalia's "image and genius." Gorsuch described Scalia, whose death created the vacancy he was chosen to fill, as a "lion of the law." In a speech last year, he embraced him as a model. Both Republicans and Democrats agree that the two are as different as Mary-Kate and Ashley Olsen.

That brings us to the matter of sodomy. In 1986, shortly before Scalia joined the Supreme Court, the justices upheld a Georgia law making it a crime to seek gratification in oral or anal sex, gay or straight. The case arose after police arrested two men caught lustily violating that law in a private home.

"The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy," said the court. Had he been a justice at the time, Scalia would have voted with the majority.

We know because he bitterly objected in 2003 when the court changed its mind. Striking down a Texas ban on homosexual sodomy, Justice Anthony Kennedy wrote that the two men challenging the law "were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment."

Conservatives denounced the decision as a case of judicial activism. Then-Sen. Rick Santorum, R-Pa., said it opened the way to legalizing incest. Evangelist Jerry Falwell called it "a tragedy for America."

What they were defending was a criminal statute telling grown-ups what they could do to gratify each other in bed. The very idea may sound preposterous now, but it wasn't then; 14 states had similar laws. Such medieval prohibitions would still be allowed if a certain sainted justice had gotten his way.

In a blistering dissent, Scalia insisted the state of Texas was perfectly entitled to outlaw "certain forms of sexual behavior" because it regards them as "immoral and unacceptable." In overturning the ban, he charged, the court had "signed on to the so-called homosexual agenda" and invited "a massive disruption of the current social order."

By the logic of his judicial philosophy of originalism—relying on what the words of the Constitution were understood to mean when it was ratified—his view was understandable.

After all, the words "oral sex" are flagrantly absent from the Constitution. He could also point to the long history of laws against oral and anal pleasuring and to the obligation of the court to follow precedents, notably the 1986 ruling.

So the question for a nominee who fervently champions Scalia's approach to judging is: What about sodomy?

The 2003 decision no longer gets much attention from conservatives. Scalia's caustic fulminations on the topic were left out of the eulogies. No Republican has endorsed Gorsuch on the grounds that he would uphold laws against gay sex.

But given the chance, why wouldn't he? If he reveres Scalia and his approach, it would be logical for him to agree that oral and anal sex can be banned. But to admit as much would alarm most Americans—who think that adult partners should be free to do whatever floats their boats.

To repudiate Scalia, however, would suggest there is something fundamentally defective in Gorsuch's entire approach to judging. It would imply that the late justice was not all-wise.

It would suggest that the principles established by the Framers can clash with conservative ideals. It would imply that the meaning of important constitutional provisions is not fixed for all time but evolves under the pressure of new circumstances and changing standards—and that judges have to acknowledge as much.

So by all means, let Gorsuch explain his view of those decisions. In doing so, he might reflect that what one New Orleans mayor said about prostitution applies as well to sodomy: You can make it illegal, but you can't make it unpopular.

© Copyright 2017 by Creators Syndicate Inc.

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  1. Are you fucking kidding me!!??

    Chapman you fucking moron.

    Hillary would have literally nominated someone determined to make certain types of political speech illegal.

    And this is the shit you choose to write.

    Fuck it Reason, maybe some of the commentariat will start a real libertarian website. One that would eat your lunch come fundraising time…..

    1. Hillary would have been terrible – true. This is why I supported Trump, though it was the only reason (other than my opposition to ‘debt-free’ college and ‘liveable wage’). Chapman isn’t criticizing Gorsuch – read it again. He is just making an interesting point that could lead to some contention in the hearings. Wouldn’t that be fun to watch? I certainly think so. Anyway the dems will approve him (after some histrionics), it’s not even a question. Finally, I would point out that Chapman supports free speech, an ideal whose loyalty I would question among the people who are too quick to call people ‘fucking moron’ on issues they don’t even fully understand themselves.

      1. Hopefully Clinton would have taken ? and Trump, as well as the nominee himself, will take ? a firm stand against the unpresidented “First Amendment dissent” of a single, isolated, so-called judge in America’s leading criminal “satire” case ? see the documentation at: http://raphaelgolbtrial.wordpress.com/. We need to get this sort of junk banned from law libraries around the country before any more damage is done to the executive branch.

    2. That’s in the works, BigW. I now have an anonymous email address (click my name) so folks can contact me.

    3. Hillary lost the election, so we can stop worrying about what she would have done now.

      1. But it’s not like the guy who got elected is indicating he might be an enemy to freedom or anything.

        1. Yes, I might have added “and start worrying about what the guy who actually is president will do”.

          I don’t think a return of sodomy laws is a significant concern, however.

          1. ^This. I don’t imagine it’s on anyone’s agenda right now.

            Plus, with sodomy being legal in all 50 states under Lawrence, I don’t see how a live case could even reach SCOTUS for Trump’s allegedly ultra-SoCon bench to rule on it.

            1. “I don’t see how a live case could even reach SCOTUS for Trump’s allegedly ultra-SoCon bench to rule on it.”
              There’s two ways. First is a well-meaning chap trying to get his decades-old conviction overturned? so that he can get off a friggin’ sex-offender list, and an Attorney General deciding to be a dick about it.

              Second, an idiot cop arrests someone under their state’s unconstitutional sodomy law?, and instead of doing the sane thing and dismissing charges, the District Attorney decides to go for it.

              So sure, it’s unlikely. But not impossible. Especially if there’s already been a strong attack on Roe v. Wade and it looks like the court isn’t so keen on “privacy rights” anymore and some DA/sheriff wants to make a name for themselves.
              ________
              ?I think there’s already been at least one case this year where a guy was doing just that. IIRC, his case was about getting his dishonorable discharge overturned so he could be buried in a military cemetery with honors.
              ?In 2012-2013 Baton Rouge, the police were actually doing sting operations to catch gay men seeking consensual sex with other men in private. Not in public, mind you. The arrests were all for sodomy, not public indecency like nearly similar sting operations. The cops defended themselves saying that it was still the law in Louisiana, and it wasn’t their job to decide not to enforce it. The DA kept throwing out the cases.

      2. And the justice who opposed striking down sodomy laws is dead and the striking down is precedent. So, can we stop worrying about how someone like him would have ruled?

    4. What the fuck does Clinton or campaign finance prohibitions have to do with sodomy laws? You are such a little bitch. There’s no fucking way you’re a libertarian.

    5. There’s this site.

      Being Libertarian

      I’m not sure if anyone’s ever been around there and I’ve never seen a comment. I just browsed through and looked at the article titles, didn’t read any of them. Might look some more when I get time.

      1. I’ve been there before. I think it is mostly just random people writing articles. Some of them look straight out of high school.

        Actually, looking at it again, it seems they have updated it quite a bit. It has potential, but they need better editors, IMO. Also wouldn’t hurt if they actually paid people for the articles they write.

    6. Check out “Liberty.me”.

    7. My last month paycheck was for 11000 dollars… All i did was simple online work from comfort at home for 3-4 hours/day that I got from this agency I discovered over the internet and they paid me for it 95 bucks every hour… This is what I do

      =========================== http://www.4dayjobs.com

  2. Chapman really gets to the bottom of this. Penetrating analysis.

    Sorry, I can’t get behind it, though.

    It stinks.

    1. Maybe you are one of those that prefer others to get behind him?

      1. or just get bent over anything?

    2. Crack analysis.

    3. Well done! Wonder if Gorsuch has viewed the Burning Angel site – where the porn seems to emphasize anal sex more than oral or “normal” genital sex. Not that I’ve viewed the site that many times – just a few – doing some research….

  3. If I was one of the Founding Fathers, I would totally put oral sex in the Constitution.

    1. Mandatory?

    2. “Of all the rights given by the Creator, the right to oral satisfaction of the genitalia, both male and female, will be not be infringed. Because it’s awesome, Sally does it to me daily and I have no complaints.”

      1. Dolly’s going to be pissed if Madison was getting it on with Sally.

    3. Mexican ass sex and weed should definitely be amended in. This is Trump’s test, let’s see if he does it.

  4. It would imply that the meaning of important constitutional provisions is not fixed for all time but evolves under the pressure of new circumstances and changing standards?and that judges have to acknowledge as much.

    It means that justices like- Holmes, Scalia, Roberts, Ginsburg, etc make judicial opinions that are inconsistent with the US Constitution more than once. The Constitution should not evolve with changing circumstances, like lefty dogma preaches. It should remain constant since it is the foundation of all other US laws and state Constitutions, unless there is a constitutional amendment.

    The justices that decided government power trumps private sexual behavior were wrong then as they would be wrong now.

    Rule of thumb: If a law, especially a “moral” one, is never applied equally to all people, then is should not have been a law. Sodomy laws were never equally applied to heterosexual’s bedroom anal sex like homosexual’s bedroom anal sex.

    1. “The Constitution should not evolve with changing circumstances, like lefty dogma preaches.”
      “The justices that decided government power trumps private sexual behavior were wrong then as they would be wrong now.”
      … you do realize that you’re arguing that the folks that wrote the Constitution were wrong about what was in it, right? Every state of the union had sodomy laws until 1962, including states that didn’t become states until the 1900s. The founding fathers didn’t have too many public statements on such laws, but what we do have indicates they were largely A-OK with ’em.

      Heck, they didn’t have much interest in a “right to privacy” as we understand it today. Whether we’re talking about sodomy, adultery or birth control, early America didn’t have a problem with the government laying down the law.

      So you can think the Constitution prohibits sodomy laws, but don’t fool yourself into thinking that isn’t an “evolution”.

      1. I always think that part of the confusion in modern government and litigation in that we think in terms of Private Sphere and Government (think of Obama’s “government is what we do together”), versus older societal structures like the Founders understood. In that case it was Private Sphere and Public Sphere (in terms of the commons, like we think of old grazing lands or modern signals); government was basically the equivalent of the custodial staff that was hired among private folks to pick up the sheep dung building up in the common space

        So, there are many social rules that are deliberately not put in the province of government (civil or court) in that schema which we assume to be its province now, but are rather intended to be mores or customs. Rules on marriage are a perfect example that we tend to debate here (understanding that the tax benefits and the like given to social custom stratified what had always otherwise evolved as society required).

        It’s a key progressive fallacy that the Supreme Court’s job is to fence in and farm the commons.

    2. “The Constitution should not evolve with changing circumstances, like lefty dogma preaches.”
      “The justices that decided government power trumps private sexual behavior were wrong then as they would be wrong now.”
      … you do realize that you’re arguing that the folks that wrote the Constitution were wrong about what was in it, right? Every state of the union had sodomy laws until 1962, including states that didn’t become states until the 1900s. The founding fathers didn’t have too many public statements on such laws, but what we do have indicates they were largely A-OK with ’em.

      Heck, they didn’t have much interest in a “right to privacy” as we understand it today. Whether we’re talking about sodomy, adultery or birth control, early America didn’t have a problem with the government laying down the law.

      So you can think the Constitution prohibits sodomy laws, but don’t fool yourself into thinking that isn’t an “evolution”.

      1. Some of the language in the Constitution invites subjectivity such as the prohibition against “cruel and unusual” punishments. The due process clauses are similarly vague and seemingly constructed to invite the moral judgments of the interpretor. The framers should have used more precise language.

        1. Yea, it depends on whether you believe the Constitution can be interpreted any way that can be used to fit the language, or whether the meaning has something to do with the intentions of the people who wrote and signed it.

          Someone like Scalia would have argued that the Constitution is just like other law : in that case, legislators come together, write something, agree on it, and sign it. In that light, the issue then becomes “What did they agree to?” Originalists call this the “original public understanding.” Also, look at it similar to when people sign to a contract. And, in fact, the way the founders talked about the Constitution suggests that’s how they saw it as well. For example, Jefferson spoke about the Congress violating what “the states had acceded to” when they voted at the Constitutional Convention.

          Putting that clearly, Accede: “to give consent, approval, or adherence; agree; assent; to accede to a request; to accede to the terms of a contract.”

          In other words, in that view, the Constitution is not an abstract philosophical document, its like a contract. As far as expressions like “cruel and unusual”, originalists look to legal tradition to determine what the founders meant by this. Scalia actually argued strongly against “strict constructionism”, which only looked at the language and not the historical context.

        2. It is cruel to just shove it in without lube and some warm-up. So there’s that.

    3. “Sodomy laws were never equally applied to heterosexual’s bedroom anal sex like homosexual’s bedroom anal sex.”

      Yes, they were, before the 20th century. And, in fact, we have cases on record of sodomy convictions against men who engaged in that behavior with their wives, so the laws didn’t discriminate between relationships in and out of marriage, either. At some point though, the ban against heterosexual sodomy was dropped, and the law was narrowed to homosexual sodomy. Justice Kennedy actually cited this as part of his reasoning in Lawrence v. Virginia.

      Regardless, of that, originalists like Justice Scalia did would still argue the law isn’t against people, but behavior.

  5. So Chapman Wants to know how a Supreme Court nominee would vote on a hypothetical state law that a majority of Americans would consider alarming and preposterous, that the court has already addressed, and that even those who once supported such a law no longer care about, Now that’s what I call a useful way to invest our time.

    1. Assex, Pot and Mexicans are Reason’s Holy Trinity and every issue must be analyzed in the light of each member thereof.

      1. Huh huh huh huh, “member.”

      2. Oh, look, everyone, somebody is actually making a principaled argument for a right which Homple doesn’t personally care about. A right that is generally only denied to a class of people that Homple isn’t too keen on. Typical “my-rights libertarian.”

        1. “principled” dammit

        2. The anti-sodomy laws have been thoroughly and rightly quashed by the courts, so there’s no point in bringing up the Gorsuch vs. Scalia hypothetical.

          No point, that is, except reverence to a member of Reason’s Holy Trinity.

          The sodomy law parrot is pining for the fjords, but Chapman resolutely nails it to its perch

      3. That would be better. However, their Holy Trinity appears to me to be 24/7 Trumpocalypse, outrage over having any borders at all, and some good stuff on the side.

    2. “[…] and that even those who once supported such a law no longer care about […]”
      Not true, actually. According to Gallup, in 2016 28% of respondents thought that gay sex should be illegal. And despite numerous attempts to repeal them, quite a few states still have (unconstitutional) sodomy laws on the book, because the state legislators want to keep them around?.

      And seeing as how many privacy right SCOTUS cases follow the same path, support for/against Lawrence is probably a good compass for views of privacy rights as a whole. And you really shouldn’t forget that all that goes back to Griswold, which is admittedly lower on the radar then Roe, but still in the cross hairs for the religious right.
      ________
      ?Whether it’s out of an idle hope that Lawrence v. Texas will be overturned allowing their laws to go back into effect, or just because they get a thrill from having “we don’t like your kind” written into the law. There really isn’t a benign interpretation here.

      1. I suspect they are hoping that Lawrence is overturned. But the talking point they use is they need those anti-sodomy statutes so they can tack on additional charges like sodomy in rape cases, etc.

      2. Of course, we’re a common law country based on built legal precedent, not classical Athens built on pure representation, so that wouldn’t mean diddly squat even if 51% wanting such laws overturned.

    3. This is a person who not long ago thought it wasn’t preposterous for the government to jail consenting adults for the type of sex they prefer. There are only nine seats.

  6. I have another question for Gorsuch: Can you imagine invoking the 9th Amendment in defending an unenumerated right?

    Scalia had no use for the 9th and was, indeed, scornful of it: “[The Ninth Amendment’s] refusal to ‘deny or disparage’ other rights is far removed from affirming any one of them, and even further removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.”

    The 9th says, simply: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    This would be a powerful defense of the rights of people to engage in consensual sexual activities regardless of the beliefs of those in the community.

    How does Gorsuch stand on the 9th?

    1. “authorizing judges to identify what they might be”

      The 9th Amendment presupposed the existence of certain rights, independent of the wishes of judges or other government officials.

      What Scalia is worried about is that judges would use the 9th Amendment as a justification for making up “rights” without justification in constitutional history or tradition – though of course judges can invoke any constitutional provision they want if they’re just going to make stuff up (“sodomy laws are obviously bills of attainder! And they interfere with interstate commerce!”). And they do, without the need for a 9th Amendment.

      The historical reality is that at the time of the Constitution and Bill of Rights, Americans believed they enjoyed certain rights which never made it into the bill of rights – like the right to a legal remedy for injuries to person, property and reputation, freedom from monopolies, and some other things.

      1. On sodomy, the question is whether sodomy (hetero or homo) was recognized as a right at the time of the Bill of Rights, or whether it’s one of those “rights” which was “discovered” later, in the penumbras or under the sofa cushions.

        1. If that’s a question, it’s a trivial one. In 1789 every state in the union had sodomy laws, and every state that was later added would have sodomy laws (including Hawaii and Alaska, which didn’t become states until the 1900s).

          Throw in that it’s been part of the UCMJ since we had a UCMJ?, and it’s pretty clear that no, in 1789 there was no understanding that sodomy laws were unconstitutional, and it would be nearly two centuries before any court struck such laws down, and over two centuries before it was done-so nation-wide.
          ________
          ?In a 30 second search I couldn’t get a clear answer as to whether the UCMJ still prohibits sodomy or not. Even if it’s still there, it’s almost certainly unenforceable though. But that just puts it in the company of other states that have maintained their sodomy laws despite their unconstitutional nature.

        2. It’s also possible that recognized rights at the time of the BOR were not applied in consistent ways at the time. The Founding Fathers were far from perfectly consistent in their regard for protected rights.

          Also, at the time of the BOR, the BOR didn’t apply to state laws.

          1. Right, the Founders disagreed on many points.

            There were some points where they did agree, eg, none of them said there was a right to sodomy, for example.

            1. What I’m talking about isn’t just disagreement, but inconsistency. None of them may have thought that sodomy was a protected right. But that doesn’t mean that the rights that they did think people had didn’t logically imply a right to ass-fucking in the privacy of one’s own home. And that’s the problem with going with what people thought at the time. People are good at overlooking inconsistencies in their own reasoning so they can justify things they want to be so.

              1. Sure, but that inconsistency really doesn’t bother “originalist” judges, it just means they can shop around to find an opinion they already agree with, and then say “this is obviously what they really meant”.

                Disclaimer: I don’t have charitable impressions of the “originalist” judicial philosophy. If it were an objective deterministic process, I might be more charitable, but as-is it’s as reliable as reading tea leaves and always conveniently gives the answer the judge wanted to give anyway.

                1. Yeah, that’s the problem with that version of “originalism”.

                  I think you have to look at original context to some extent. But the main thing should be the text.

              2. “But that doesn’t mean that the rights that they did think people had didn’t logically imply a right to ass-fucking in the privacy of one’s own home.”

                The rights they thought people had (in a constitutional sense, not moral sense), were areas of power that were not enumerated to the states or the federal government. Obviously, the power to regulate “ass-fucking in the privacy of one’s own home” was not given to the federal government. Whether that was given to a state government would depend from state to state, based on their state’s constitution.

                This isn’t an argument about the 9th, it’s about the 14th.

                1. (Unless it involves unwarranted searches and seizures regarding the alleged crime, then its about the 4th.)

            2. As far as I can tell, not a single one of them said you had a right to watch TV, drive a car, or heat up left-overs in a microwave oven, either.

              They did, however, suggest that they were aware that they didn’t know everything and couldn’t think of everything so they left some space to allow for their ignorance. Maybe the ins and outs of sodomy, abortion, T-shirts that say “Fuck The Draft”, and owning black people were just subjects you didn’t bring up in polite society and so nobody talked about it.

              1. Jefferson talked about it a proposed law code:

                “Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro’ the cartilage of her nose a hole of one half inch diameter at the least.”

                1. By all means, once we find ourselves wiser than the Founders let’s adjust the laws, or even the Constitution, accordingly, but let’s not do a Weekend at Bernie’s – let’s look at what they did and not what antics we can make their corpses do.

                  1. Are you saying we need to amend the constitution to allow for buttsex and polygamy?

                2. I really have to wonder if he meant by Sodomy and Polygamy to include cases where all is consensual. Because those really don’t line up well with everything else he wrote there.

                  1. Like I said: Tea leaves. “Originalism” is a very dangerous game of confirmation bias.

                    You can sit there and make your argument, that he surely wasn’t thinking of consensual sodomy.

                    And anyone else could point out that yeah, he didn’t define the crimes themselves, because they were already understood, and they were understood to not worry about consent.

                    Looking forward, you could pick up that “consent” being the magic word that makes just about any sexual act between two adults morally okay is a relatively recent concept, and simply wasn’t part of Jefferson’s time, and so conclude that no, he wasn’t concerned with consent.

                    Like I said, it’s tea leaves.

                3. Jefferson proposed a whole lot of stuff in his time. He, however, had no part in the drafting of any part of the Constitution (being in France as Ambassador during the entire process).

        3. And yet it is self evident that if I own my body, then I can damn well put anything in my ass that I so choose (as long as it’s consensual). Any federal laws contrary to such are obviously wrong.

          I would also argue that any state laws regarding such, especially after adoption of the 14th amendment, would likewise be wrong.

          1. While I don’t disagree that they’re wrong, they’ve been existence (worldwide) for literally hundreds of years, and in America survived the 14th Amendment by over a hundred years.

            If it was that “obvious” and “self-evident”, then they wouldn’t have lasted so long. You really shouldn’t fool yourself that you aren’t also a product of your times, and that the things obvious or self-evident to you haven’t always been so, and to many people today, still aren’t.

            1. I guess I just figure that the people that wrote and agreed with the Declaration and the Constitution understood on some level that we all own our bodies and the products of our labor, even if they did allow for hypocritical and/or contradictory laws and norms to abide.

              But I see your point, and think that is a valid way to look at it.

              1. “[…] understood on some level that we all own our bodies and the products of our labor […]”
                … you do know that slavery was a thing at the time, right? A good chunk of the Founders literally owned other people and the product of their labors. Jefferson himself literally owned his mistress. And that’s before we even get into the situation of women which was deplorable but far more complex.

                I think you’re overlooking some huge context to maintain your rosy-glasses version of the Founders.

                1. Yes, I’m aware. That’s why I included this: “even if they did allow for hypocritical and/or contradictory laws and norms to abide.”

                  1. When you have to ignore more contradictory evidence then you have supporting evidence, you’re beyond “hypocritical”.

            2. It probably lasted that long because sodomy, or any other kind of sexual activity legal or illegal, wasn’t really a topic of general polite discussion. Not to mention that a) times were indeed different in the late 18th century (as in, the real intent for sodomy laws was probably to combat STDs which, absent antibiotics, had a higher death rate at the time, but everyone just went with “to reflect our moral values” as the official reason); and b) a lot of these archaic laws had the faint stink of ethnic discrimination (as in, birth control was outlawed because the Catholic immigrants were reproducing at an alarming rate and the lawmakers wanted to jack up the Protestant birth rate).

          2. And yet it is self evident that if I own my body, then I can damn well put anything in my ass that I so choose (as long as it’s consensual). Any federal laws contrary to such are obviously wrong.

            In that case, there’s nothing in the Constitution against repealing or replacing those improper laws. The originalist argument is that the legislators at the time considered such to comport with the Constitution. However, since nothing in the document requires control over the body (including having no such spooky ephemera), there is no inherent legal reason to maintain those laws if society now finds them not to comport with the Constitution ? it’s a trap to think originalism means that the law must somehow always look like it did in 1789.

      2. Its also important to note the 9th Amendment as written only applies to the federal government and not state governments, so when we talk about privacy rights in Roe, Griswold, Lawrence, we’re also specifically talking about the 14th Amendment and the notion of substantive due process.

        1. If the “nor deprived of life, liberty or property” part was broadened to mean what one person couldn’t do to another person, and not just what law enforcement couldn’t do to the accused, then that would probably be the basis for the unmentioned rights brought up by Number Nine.

      3. Did someone say “interstate commerce”?

        #MuhRoadzSignal

      4. “The historical reality is that at the time of the Constitution and Bill of Rights, Americans believed they enjoyed certain rights which never made it into the bill of rights – like the right to a legal remedy for injuries to person, property and reputation, freedom from monopolies, and some other things.”

        These are largely covered by the Seventh Amendment.

    2. As much as I would like it if the 9th had some teeth, I think it is probably impossible to really apply in a supreme court case. It give no guidance on what any of these rights might be, so how can it be applied in a way that is at all consistent?

      1. Suppose, to take a non-hypothetical example, that Congress passed a law that you couldn’t sue government officials for damages for false arrest, no matter how illegal the arrest was. This would violate what I mentioned above, the right to legal recourse for interference with one’s person.

        Or say Congress passed a law that nobody could sell watches except a government-designated monopoly watchmaker. That would violate the anti-monopoly right I mentioned.

        1. (suppose these laws were limited to the District of Columbia, so as to minimize the 10th Amendment concerns)

      2. A: Would calling the exercise of this action a “right” infringe on any right of another person?
        B: Is the right enumerated in the Constitution?

        If no to both, go ahead.

        1. That’s what I would like it to mean. And that is a consistent application. But no court is going to go with that interpretation.

      3. It give no guidance on what any of these rights might be, so how can it be applied in a way that is at all consistent?

        They ignore it because they simply don’t like the answer to that question.

        The 9th exists. It was placed there for a reason. It prohibits government from disparaging rights I have that aren’t listed in the Constitution. So what are these rights and where do the originate?

        Do I have the right to breathe air? Scratch my ass? Eat? Eat what I choose? To bang sheep? To other people’s wealth?

        How do I get rights? Do I need a law granting them? Does the court grant them through precedent? Does 51% of the population decide for the other half?

        There is only one logical boundary. Only one answer that allows for the consistency required by the legal system. And it scares the hell out of them, because it strips them of their power.

        The 9th is what makes the Constitution libertarian in nature, and is therefore summarily dismissed.

        1. As I say, that’s what I want it to mean. And perhaps that’s what it was supposed to mean. But at the time it was written it only applied to the federal government and it wasn’t until long after the 14th passed that the Feds started getting into the business of making laws that would violate the 9th.

          1. “[…] it wasn’t until long after the 14th passed that the Feds started getting into the business of making laws that would violate the 9th.”
            That depends… do you favor the view that the ACA’s individual mandate is a violation of the 9th? If so, then you should read this.

            Within a decade of the Constitution being ratified, there were laws requiring purchase of health care and firearms. And those are just examples I have off the top of my head, I’m sure there are plenty of other cases. But we don’t hear about them because (A) it’s 200 years ago and (B) the Libertarian view of “violations” isn’t a common one and never has been.

              1. … why did the link die? WHY DID THE LINK DIE?!

                /froth

                Try googling “Harvard Law professor says early Congress mandated health insurance for seamen and gun ownership for most men”.

                Long story short, within a few years of the Constitution being signed congress passed a law requiring ship captains over a certain size to provide healthcare for all their sailors without deducting it from their pay, required captains pay a “healthcare charge” to all ports they stopped at, which *could* be deducted from crewman’s pay, and a law requiring all able-bodied men to acquire a gun.

                1. Long story short, within a few years of the Constitution being signed congress passed a law requiring ship captains over a certain size to provide healthcare for all their sailors without deducting it from their pay, required captains pay a “healthcare charge” to all ports they stopped at…

                  Healthcare in 1800 was leeches for what ailed you, a “barber” to remove your rotten teeth, and a “sawbones” to perform amputatations without anesthesia. I would be happy with that level of “mandated” coverage…

                2. And since I own a wide variety of firearms and would like to include a fully automatic weapon, a cannon, and a couple ICBMs- all of which were legal at the time- I could tolerate such as long as we disband our “standing army” and reap the savings of ~95% of our current Defense budget.

          2. As I say, that’s what I want it to mean.

            So question:

            What else could it mean and be consistent?

            They certainly didn’t put it in there as filler.

        2. No, the 9th doesn’t automatically make the Constitution libertarian. For instance, if Congress and the states passed a Constitutional amendment banning contraception, it would override the 9th. Yet, a Constitutional amendment banning contraception would be anti-libertarian. What it does do is make the Constitution a (r)epublican document, meaning a government of laws and not men.

          Second, I think overly focusing on the 9th is just missing the point when we’re talking about the right of state governments to ban certain practices. The issue here is the 14th Amendment, not the 9th, and what strictures it creates on the states. So, if the state of Alabama passed an amendment to its state constitution banning contraception, would the 14th disallow this, and why. The Supreme Court’s answer was substantive due process. But that has nothing to do with the 9th Amendment. It actually allows the court to upend state constitutions, and upend powers enumerated in a states’ constitutional document.

          1. (Sidenote: Interestingly, though, the same conflict wouldn’t exist if it the amendment were passed into the federal Constitution, even though we have a due process clause that by their own logic would prohibit this. So its the Court creating a stricter standard of due process for the states than they hold for the federal government.)

      4. Does your proposed right impose on obligation on anybody else beyond “mind your own damn business”?

        1. And that would be great if we could convince most people to agree with libertarians on the nature of rights.

    3. What the 9th basically means is that there are too many specifics to even try and list them all. I’d say it was a “hope for common sense” Amendment, one that unfortunately proved that politicians and judges often have little common sense.

  7. Glad to see this one seems to have the social-liberal bias alarm brigade out in full force! Allow me to join you:
    .
    Scalia had a very “conservative” interpretation of unenumerated rights. For such a person, his position on sodomy made perfect sense. For a person who actually places importance on consistency and on figuring out what the Constitution actually says, you cannot have Lawrence–indeed, you probably cannot have Griswold–without Lochner. Our “liberal” judges, even the better ones like Ginsburg, are simply making shit up to suit their personal political ideologies.
    .
    Rather than trying to figure out whether Gorsuch will serve our (admittedly admirable) political agenda on this or that issue, we should remember that he is a judge, and focus our discussion and speculation about his “Scalianess” on how much he possesses Nino’s principle and honesty and fealty to public-meaning originalism, and on how much he shares his rabid, insatiable hatred of Lochner.

  8. Steve Chapman was sodomized by Shikha Dalmia.

    1. A Reason-progretarian fanfic! What was Robby doing?

      1. Watching and combing his hair, to be sure.

      2. Bogarting all the fruit sushi, of course.

      3. Explaining how self-defense is violent.

  9. There is nothing conservative about policing bedroom behavior. The fact that Scalia was wrong on this doesn’t say shit about what Gorsuch will do.

    1. “There is nothing conservative about policing bedroom behavior”
      Have you told conservatives this? They seem to be consistently confused on this matter.

      1. Have you told conservatives this?

        Like Catholics?

        I think the problem is that ‘conservative’ has been overloaded so many times it almost doesn’t have any meaning.

        1. “Like Catholics?”
          Catholic Church: opposed to Griswold v. Connecticut, Roe v. Wade and Lawrence v. Texas. And while the church lost those fights here in the US, they continue to fight them abroad to varying degrees of success.

          “I think the problem is that ‘conservative’ has been overloaded so many times it almost doesn’t have any meaning.”
          I think the problem is you don’t like what the word means these days, but are unwilling to relinquish it, and instead pretend it’s ambiguous.

        2. It doesn’t have any meaning, as the progressive media will often conflate American Conservatives with say, Afghani Conservatives. Then the same media will conflate themselves and every other Top Man worshipping sycophant with liberalism.

          1. Even “American Conservative” has multiple meanings. Even in a mainstream sense, a T.S. Eliot-style Traditionalist is very different than a William F. Buckley Jr.-style classical liberal, even if both can read Russell Kirk and vote for Ronald Reagan.

            1. …and I realize that I’ve left out the entirety of populist conservatism here (not referring to the Alt-Right, but the classic lunch bucket Reagan Democrat union conservative who Trump brought back to the GOP)

    2. It does because Scalia or any other justice may be political “conservatives” or “liberals” or whatever, but distinct from that they also are people with a certain jurisprudential philosophy when they put on their robes. And Scalia was not trying to be a “conservative” with his opinions, much less to decide on a case by case basis whether he wanted to “police” this or that thing, but rather to interpret American law as it is in a certain way. That way happens to be, rightly or wrongly, that the Ninth Amendment does not put much of any restraint on legislators policing anything from minimum wage to sex lives. He quite explicitly does not politically favor these policies, but that is neither here nor there.

      It seems quite understandable, for any number of reasons including the effusive, explicit praise he has showered on the man and his judicial philosophy, that one would suspect that a Justice Gorsuch might be “Scalia-like” in his opinions, including this one. I do not see at all where the “doesn’t say shit” would come from.

      1. Fair point but I think as others point out the author chose a pretty far-out there hypothetical.

        1. Oh yeah, the article sucks ass in every conceivable way. (In ways even Lawrence didn’t make legal.)

  10. I have no fucking idea what the point of this article is. Teh Rethuglikkkans be comin fur ya’lls buttsecks?

    1. More like “Teh Rethuglikkkans be comin fur ya’lls [privacy rights]?”

      Conservatives (starting before Conservative and Republican became virtually synonymous) have always had issue with “privacy rights”, from Griswold v. Connecticut, Roe v. Wade, and yes Lawrence v. Texas.

      1. So Gorsuch is going to overturn Lawrence v Buttsecks? That’s the concern? Because if it were privacy rights, you might talk about things like mass surveillance which could feasibly be ruled on by the courts anytime soon.

        1. Legal opposition to mass surveillance is often rooted in the 4th Amendment, not in “privacy rights”.

          So no, legally speaking, mass surveillance doesn’t have much to do with “privacy rights” cases.

          1. Isn’t the privacy right found in the constitution largely based on the 4th amendment?

            1. Maybe? I’m an arm-chair lawyer, not a real lawyer, so take this with a grain (bucket) of salt.

              But I know that “privacy rights” cases (meaning Griswold, Roe, Loving, Lawerence and so-on) aren’t couched as 4th Amendment cases, even if that’s where that ultimately derive from. It’s one of the reasons they’re attacked as “discovered rights”.

              Concerns with mass surveillance, drug dogs, car searches and so-on have a direct link to the 4th though, and are phrased/argued as such. Regardless of whether someone agrees/disagrees with individual verdicts, the constitutional applicability is rarely questioned.

              So privacy rights might ultimately derive from the 4th, but they’re off on their own speculative branch, and that’s a branch that (A) is pretty obviously not part of “original intent” and (B) been under attack by conservatives/religious right/morally-minded-busybodies since, well, forever.

              1. Privacy rights in this specific sense means “private matters (like sex) aren’t the legislature’s concern” which is a lot broader of a statement than the 4th Amendment, which alone is just about searches and seizures. Its derived “substantive due process” in the 5th (for the federal government) and 14th (for the states).

                Scalia hated the concept of “substantive due process”, noting that it originated in the Dred Scott decision, where Justice Taney ruled that the due process rights of slaveholders was violated if they didn’t recognize the legal ownership over a slave who had run away.

    2. Seems unlikely. I don’t think there is a lot of interest in re-criminalizing sodomy.

      There is a tendency sometimes to ignore more negative aspects of people who have recently died. So I think pointing out that Scalia wasn’t always great on every subject is worth doing from time to time. But his deference to police would be a much more relevant thing to bring up than this.

      1. Exactly. The outlawry of buttsex is more apt to raise emotional responses, discussing police abuse and general judicial deference to law enforcement agencies might actually require readers to rub two brain cells together about a relevant and presently important issue.

    3. It’s a guest piece from that Trib columnist. He is easily the weakest regular.

      I see no particular reason why guest columnists need to be libertarians. (Lenore Skenazy is not, to name one example.) A piece from a diehard leftist, for instance, who does not give two fucks about freedom about why a proposed regulation will fuck over the poor could be a valuable perspective to hear. What pieces should be is smart and insightful. Mr. Chapman rarely is; he just comes across as the guy who’s given a column to fill with his thoughts on anything in the local paper every week. (The ones with more sense just spend their time ranting about the latest place they used to go to closing and how they can’t find a good cup of coffee anymore and so forth.)

    4. Make America Anally Chaste Again.

  11. I wonder if Scalia would have been OK with a law criminalizing straight PIV sex not done primarily for the purpose of reproduction. Seems like that could be excused/justified by the same reasoning as anti-sodomy laws.

    1. Yep. There is/was a weird tendency for conservatives to legislate morality, although they’re *supposed* to be strict constitutionalists/originalists.

      Thing is… I think the vast majority of morality legislation has been taken off the books (with the noted exception of the war on drugs), so it’s unlikely that this will come up at the SC.

  12. “Although the Constitution is silent on the specific matter of sodomy, the State maintains an interest in regulating butt stuff for the purposes of public health and promotion of strong marriages. This includes but is not limited to the mandating of one (1) birthday anal for married couples, and allowing the ban of digital insertion without explicit prior consent no matter what you read in Cosmopolitan Louise.”

  13. That brings us to the matter of sodomy.

    Butt, enough about the U.S. health care system.

  14. Did I miss something? Is the administration proposing to bring back sodomy laws? Just seems like an odd, out of nowhere analysis.

    1. Pants-soilers gotta soil their pants.

    2. Pants-soilers gotta soil their pants.

      1. And squirrels gotta squirr.

    3. The issue with SCOTUS nominees is that, after they hit the bench, the president who nominated them is largely irrelevant. Baring tragedy Gorsuch would probably serve on the bench for thirty or forty years, so the cases he may consider will go far beyond what any single administration will be interested in.

      So while President Trump may not have privacy rights on his agenda?, that has very little to do with whether or not Gorusch’s views on privacy rights are relevant and interesting.
      ________
      ?That said, he has claimed he wants to overturn Roe v. Wade. And if Roe v. Wade gets overturned, then there’s a lot of “privacy rights” decisions that are tossed up in the air, including Lawrence v. Texas.

      1. if Roe v. Wade gets overturned

        Trump says a lot of things, but this one is not gonna happen. There would be freaking insurrections nationwide.

        1. “[…] but this one is not gonna happen.”
          I don’t think so either, but I didn’t think Trump was going to win so my record as a prophet isn’t exactly perfect.

          That said, there are numerous states passing laws specifically to push the limits of Roe v. Wade, so there are challenges in the works. And if Trump gets a second pick (say, if Ginsburg, Beyer or Kennedy retire/die), it’s pretty safe to say that he’ll be pressured to put a second “conservative” and “pro-life” justice on bench.

          So I don’t think it’s going to happen, but Gorsuch is one of the people that ultimately is likely to get a say.

          “There would be freaking insurrections nationwide.”
          Sure. But to what effect? We already have states that have no surgical abortions, only first-trimester medication abortions. We have states that keep limiting their clinics further and further such that there’s only one in the state. We have states pushing the limits, and in some cases exceeding the limits, of Roe v. Wade.

          And yes, those attempts spur protests. But the protests ultimately don’t stop the laws, the courts do.

    4. If you’re a Falcons fan, all you can think about today is sodemy.

      1. Or in the case of the Falcons team itself, auto-erotic asphyxiation. 😛

  15. Sodomy laws?

    We’re talking about sodomy laws?

    1. Well we can’t talk playoffs now, can we?

      1. Playoffs? You kidding me? I just hope we can win a damned game.

        The “diddly-poo” rant is still the best of Mora’s meltdowns, though.

        1. I’ll always be partial to Dennis Green’s “they were who we thought they were” meltdown. RIP.

  16. “Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct…. [T]he Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed.”

    The problem with Scalia, as is the problem with all Republicans and conservatives in this country, is that their diet of FOX News and fat-man radio with their stupid tropes seems to elbow out actual rational thinking.

    1. I prefer Jake radio myself. A bit more easygoing.

      1. Nah, William Conrad was in a class by himself.

  17. What about sodomy?

    Tradition says you combine it with rum and the lash. But I’m not sure if Kennedy considered that in his opinion.

  18. STEVE SMITH SUBMIT AMICUS CURIE AFTER RAPE SCALIA CORPSE

    1. A *real* “friend” of the court.

      1. Steve Smith looked pretty good yesterday on the set of The NFL Network prior to the SB.

  19. I didn’t read the article. So I’m not sure what it’s really about. But going by the headline, a couple of questions come to mind. 1. How many people were arrested in the USA for sodomy in 2016? 2. Does someone think that Trump and Sessions are going to make going after sodomites a big priority?

    1. Based on the hyperbolic ravings I’ve read/heard over the past two months, it would appear the answer to your second question is “many.”

      Did you miss the histrionic screeds about gays and trans people going into hiding? The interview in which a survivor of the Pulse shooting claimed he is more afraid of Trump than he was of the guy fucking shooting at him?

    2. 1) None that didn’t involve assault of some kind.

      2) If they do, we should rat out Lyndsey Graham to them.

  20. How about questioning the nominee, “Do you think Dred Scoltt was correctly decided, at the time?”
    Instead of wasting time, ask pertinent questions. Someone should have asked Kagan about recusing herself if a law she had defended prior came up for a SC decision.

    1. I imagine that in the 1870s that wouldn’t have been an unreasonable question. The 14th might have made it moot, but if you think the views of a justice prior to the 14th won’t impact their decisions after the 14th then you have far more esteem for judges then I do.

  21. RE: Does Gorsuch Stand with Scalia on Sodomy Laws?
    An issue the Supreme Court candidate should address.

    Sodomy has been legal since 1913.
    That was the year the income tax was introduced into our country, and the IRS has been ass raping the worker here in America ever since.

  22. Scalia’s dissent went well beyond denouncing the “so-called homosexual agenda.” He moaned that “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.”

    So, the next time you jack off, give thanks to the gay-lovin’ six in Lawrence v. Texas, because if it had been left up to Scalia, Rehnquist, and Thomas, the state might be beating down your door in a “no knock,” “hands off the cock” raid.

  23. Many things, like wearing a hat or walking the dog are not “fundamental rights” explicitly guaranteed by the Constitution. That’s what the 9th amendment says, explicitly.

  24. This, of course, brings a fundamental issue up. If the Constitution is inconsistent with your policy preferences, should you favor a judge who will adhere to the word of the Constitution or your policy position?

    We should all demand the former. If you have nine Justices all ruling as best they can in accordance with the original public meaning, you can overturn the Supreme Court by passing constitutional amendments with new original public meaning.

    If you have justices selected for favoring policy outcomes, however, you have no damn recourse. See how the 14th Amendment was gutted thirty years after its adoption by the courts, by first accepting the dodge of “separate but equal”, and then allowing states to do the extraconstitutional “separate” without enforcing the very explicit-in-the-text “equal”.

    I would prefer a judge who thinks the consistent application of the Ninth and Fourteenth Amendments in their original public meaning did, in fact, prohibit state laws against sodomy even if the people of the time didn’t work out the logic of their enactments correctly. But I would far sooner have a judge who reaches the reasonable conclusion that the Constitution is silent on sodomy laws and thus they are legal than one who thinks that the Constitution was silent on sodomy laws but Justices have the right to change that because, well, it’s the 21st Century, maaaaan.

  25. “The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy,” said the court.

    I don’t believe so either, but here’s where the joy of lying comes in: Had I been one of the judges, I’d’ve said I did. I believe in cheating for freedom.

  26. We know what sodomy is but what is gomorrahy?

    1. I was trying to be funny but apparently it’s the insertion of a non-sexual extremity into a vagina or an anus, for sexual purposes

      1. Will Gorsuch make finger banging illegal?

  27. What they were defending was a criminal statute telling grown-ups what they could do to gratify each other in bed.

    I hate to break this to you, but Constitutionalists are not necessarily libertarians. However, they may be the closest we can get.

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  29. The discussion in the comments section was even more enlightening than the article regarding legal interpretations of the US Constitution. Quite an interesting mental exercise.
    That being said, Reason seems to put a lot of emphasis on tangential issues which affect a small percentage of the population, seemingly making them as important as other issues affecting all of us (taxation, monetary policy, bureaucracy, size of government etc). This might give the wrong impression of libertarianism to the public at large – just like how Gary Johnson’s simplistic summary of his philosophy, fiscally conservative and socially liberal, turned off a large part of the electorate. Libertarian does not mean libertine, and if we focus too much on certain topics, we risk losing focus of the most important priorities in our quest to keep the ever-growing government in check.

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  34. I’ve often wondered if, since Scalia resided in Virginia while sitting on the DC Court of Appeals and the Supreme Court, he never gave nor received oral sex from 1982 through 2003.

    1. That’s not the question. The question is whether the Constitution barred Virginia from passing laws against oral sex. Plainly, the Constitution does not. Asking judges to create laws by judicial fiat is just as bad when libertarians ask.

      1. I’m pretty sure that my question was whether Scalia went 21 years without oral sex, or did he violate the laws of Virginia? Yep, re-reading it, that was exactly the question. Not sure where you got “whether the Comstitution barred Virginia…” from that, but to each his own. (Probably like Scalia) I don’t really start thinking about the 9th and 10th amendments, and whether of not what’s going on down there is an a priori right. I either sit back and really, really enjoy it, or I take care to be “listening” to the reactions I’m getting. For me, the term”judicial fiat” just doesn’t, ahem, come up.

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  36. What is scary is that the “libertarians” who run this magazine/website seem to believe that it’s perfectly consistent with libertarian principles to impose laws by judicial fiat, so long as they appear sufficiently “libertarian” in nature.

    1. Nah, we just really, really like oral sex. Sorry to hear that you feel differently; trust me, you’re missing out.

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