'Majestic' Foolishness: The Supreme Court Legislates Again

The Supreme Court has passed another law, this one supplanting the law passed by the people of the state of Texas in its democratic process. But you say the Court doesn't pass laws. Well, as Justice Scalia in his angry dissent said, the Court is supposed to be a court, but it has become a super-legislature overriding the decisions of the people. What a travesty.

By a 6-3 vote, the unelected nine based their decision to make sodomy constitutionally protected on the so-called "right to privacy."

Justice Kennedy, who wrote for the majority, said that the issue was "two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle." To deny that, he said, would reflect animus. And, he added, times and circumstances do change. Maybe, but the Constitution doesn't.

And what about the 1986 decision that Kennedy and this majority overthrew? In abortion cases, they constantly lectured us, they can't change the law that people have come to rely on.

Well, most Americans seem to be applauding the decision, and I guess there's a libertarian streak in all of us. We don't like the government in our bedrooms.

But if laws are unreasonable, we ought to change the law through our legislatures, not the courts. As George Will wrote, "'Unconstitutional' is not a synonym for 'unjust' or 'unwise.' . . . Legislators can adjust laws to their communities' changing moral sensibilities without creating, as courts do, principles, such as the broadly sweeping privacy right, that sweep away more than communities intend to discard."

Precisely. If the right to privacy protects adults engaged in private, consensual sex, how are we going to outlaw polygamy? The polygamist and all of his wives practice private, consensual sex.

How are we going to maintain laws against incest? It's private, consensual sexual behavior in the security of one's own bedroom. Why stop a forty-year-old man having sex with his consenting nineteen-year-old daughter-or son? And why stop siblings as long as there's consent?

And what about pedophilia that's "consensual," or "intergenerational intimacy," as the North American Man-Boy Love Association calls it?

One even has to raise the question of bestiality. Peter Singer, the eminent bioethicist at Princeton, argues that animals can consent since consent needn't be verbal.

Sen. Rick Santorum (R-Pa.) was vilified for raising these questions. So was Bill Pryor, the Alabama attorney general nominated for the Circuit Court. Critics say they're making homosexuality and bestiality or incest morally equivalent. Nonsense. They're simply pointing out that that's what the court is doing -- making it inevitable, in fact.

The gay lobby immediately hailed the decision as the prelude to gay marriage. Of course! As Justice Scalia said in his dissent, this decision "effectively decrees the end of all morals legislation." Well, will the media apologize to Santorum? They ought to. Will they lobby now to reinstate the Catholic priests who are pedophiles? After all, much of that was "consensual." Hardly.

What we can hope and pray for is nothing less than a miracle -- that two sensible judges will be appointed to join Scalia, Thomas, and Rehnquist. Please, Lord, may it happen.

And what about the 1986 decision that Kennedy and this majority overthrew? In abortion cases, they constantly lectured us, they can't change the law that people have come to rely on.

30 year old baby-killing case=Settled, bedrock law. 17 year old sodomy case=20th century Dred Scott. Sorry, that just don't add up. And where's the line? Is a 20 year old case too old to reconsider? 25? 29? 18?

I do not believe that these sodomy laws do any concrete good at this point in our societal evolution, but if we make consent a trump card in order to get rid of them, we have really, really shafted ourselves.

How does Scalia square his comments with his joining the decision to overturn Oregon's "assisted suicide" law? Isn't that a state matter that's none of the USSC's business?

And how does he & Colson feel about state laws that allow, for instance, medicinal marijuana? Or a state law that would allow gay marriage?

How do Scalia and Thomas square their view that the words of the Constitution have some meaning, when in the decision earlier this court year about the continuing extensions of copyright and patent terms making them de-facto indefinite? They have in effect voided the "for limited terms" clause, and allowed the legislature to be rogue agents of a contract committed (that is, for example, We the People granted a 14 year copyright in 1928 covering Mickey Mouse -- Steamboat Willey) -- by granting indefinite term to Disney these rogue agents have taken the side of one party in that contract, against those they are agents for.

Just as the Federal legislature has grabbed for and taken a rogue agents's power, the Bono Copyright Extension Act being but one example -- there are a myriad of others. Just as the Legislature went rogue, so did the Executive in its abuse of Executive Orders and Bureaucratic Regualtion dictats -- now too the Supreme Court -- ALL 12 -- has marked out its rogue's franchise.

IIRC, the question in the assisted suicide case was whether a federal law prohibiting overdoses of controlled substances would necessarily override a state law allowing their use. This would be a whole different question from the sodomy law question, since there is no federal statute that relates to sodomy.

And how does he & Colson feel about state laws that allow, for instance, medicinal marijuana? Or a state law that would allow gay marriage?

In his dissent, Scalia took the SCOTUS to task mainly for its impatience. He pointed out that societal mores change over time and vary from place to place, so these matters should be left to evolve on their own. It seems to me that Scalia hates the idea of gay marriage, but what he clearly hates more is that the SCOTUS has clumsily misused it's power to allow one thing that most Americans think is OK (not having sodomy laws) but opening the door to practices that only a very few Americans would support. All of this was done using a right that is not explicitly spelled out in the Constitution in a manner that shifts the entire way that the law views behavior. Bad, bad news.

As for how Colson would feel about a state gay marriage or medical marijuana law, I'm sure he'd hate them. The difference is, unlike the six Justice majority on the SCOTUS, Colson doesn't have the power to impose his moral judgement on 12 states when he feels like it, or to make up new Constitutional rights.

IIRC, the question in the assisted suicide case was whether a federal law prohibiting overdoses of controlled substances would necessarily override a state law allowing their use.

There could not possibly be any such "question" for Scalia, if he believes his own rhetoric in the Lawrence dissent. The plain language of the Constitution (the Tenth Amendment combined with the absence of explicit Constitutional authorization for such a federal law) makes it perfectly clear that the state law is the "controlling legal authority".

Actually, there is a huge difference between the Sodomy case and the medical mj case.

In the sodomy case, there was no federal statute that was inconsistent with the state sodomy laws--that is, no federal statute expressly making sodomy a federal right.

Thus, to invalidate the state law, the SC had to invent a brand new constitutional right of Sodomy, which then superseded the state law under the Supremacy clause. It is the invention of the new right of Sodomy (where none exists in the constitution) that was the essence of this case and about which conservatives complain. Without the wholecloth invention of this new right, the state law stands.

On the other hand, in the medical mj case, federal statutory law makes mj illegal. So the SC did not have to invent any news federal laws or rights. MJ has been illegal under Federal law for years.

Of course, the state statute makes mj legal. Thus, there is a conflict between the existing federal and state laws and, under the supremacy clause, federal law prevails.

So the difference between the two cases arises from whether the SC created an entirely new, extra-constitutional, right. In the sodomy case, it did. In the medical mj case, it did not.

Now, if you were to argue that the medical mj case was wrongly decided because the federal statute there was not within the enumerated powers of the federal government, you would have a much better argument, imho. But the 10th amendment by itself is no basis at all for ignoring the supremacy clause, which is the essence of your argument on the medical mj case.

Yeah, what ModelBreaker said, with one slight change: The new right the SCOTUS found was not Sodomy, and was not really new. They've found it before: Privacy. They first found this right in the 9th Amendment in a contraception case in the 60s, and went on to "find" it again in the 9th and/or 14th (more detail in this article) for Roe vs. Wade and Doe vs. Bolton. What the Justices of the last two generations simply refuse to recognize is that if the Founders wanted to include a right to privacy they could have done so very easily. The current court is stretching the combination of privacy and consent to make a trump card that outweighs all state interests, and I don't think that they realize just how badly they've screwed up.

Actually, the supremacy clause has no relevance, because a federal "law" that is not supported by the powers granted to the federal government in the Constitution is not really a law at all. Hence, there is no conflict between two laws.

Yeah, what ModelBreaker said, with one slight change: The new right the SCOTUS found was not Sodomy, and was not really new. They've found it before: Privacy.

I was out of town so this reply is late. I agree with most of your post, but disagree with the quoted language. I would not dignify the Supreme Court's so-called 'privacy' decisions by characterizing 'privacy' as a right. 'Privacy' is just a label that the Supremes use when they decide to declare a law unconstitutional.

The proof of this statement may be found in the range of 'private' behavior that the Supreme Court would never contemplate including in this so called right. For example: the right to murder someone in the privacy of your home, the right to sell a gun to another in the privacy of your home, etc. Thus, that an act is private is not sufficient to bring behavior into this so-called right. There has to be a belief by the supremes that States should not regulate this behavior--in other words, the behavior itself has to be in some way approved by the Court.

Thus, the Supremes decide that something (eg abortion, sodomy) is OK and should not be regulated by the government and then they call it 'privacy.'

But what the supremes really declared is a right of Sodomy. Privacy is the euphemism to let them pretend (perhaps to themselves, and certainly to the public) that they don't actually approve of the behavior they have just lent constitutional status.

Don't let the left set the terms of the debate. It is not about privacy. It is about the power of six old men (and women) to act as unelected and unrecallable dictators, amending the constitution willy-nilly to suit the whims of our leftist elite. In the Lawrence case, it is about amending the constitution to conform it to the leftist elite's belief that homosexual Sodomy is cool.

I see your point, but the problem isn't recognition of a privacy right, which can be construed to exist because of the 9th Amendment, the way the Framers set up the Constitution and basic human traditions. The problem is extending that right to things that aren't private, such as abortion.

Abuse of the right to privacy by the Court doesn't negate the right or the correctness of its place in American law any more than their decision to allow the sale of fake child porn negates the right to free speech and free enterprise. When the right is further stretched to allow numerous sexual deviancies and assisted suicide, it will still not negate the right.

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