'Sins' like prostitution, polygamy & homosexuality can not be made federal crimes, nor can they be 'legalized'.
-- Public aspects of all three however, can be regulated by State & local authorities using due process within Constitutional bounds.
The Court's decision in the Texas sodomy case changed nothing in that regard. -- It simply enforced the 14th in the Laurence case.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
B-Bob:
--- the Supreme Court CAN "legalize" anything they want, simply by finding that there is a new "right" under the Constitution which protects such activity. Perhaps you've heard of Roe v. Wade? It was in all the papers.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Both Laurence & Roe defend our same old rights to life, liberty, & property, Bob.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
B-Bob:
The only thing preventing the Texas sodomy case from being extended to groups of consenting adults, plus the occasional barnyard animal, except the replacement of Justice O'Connor by Justice Alito. We need at least two more Justices appointed to fill coming vacancies, to assure that the Court will stop inventing "rights."
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Repeating that rights are being 'invented" doesn't make a valid point Bob.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
B-Bob:
That is Justice Scalia's point. And if you do not understand that, you need to read his Dissent in the Texas sodomy case. He lays it out chapter and verse.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
I've read it, and Barnett best counters Scalias dissent, "chapter & verse".
National Review Online Address:
http://www.nationalreview.com/script/printpage.p?ref=/comment/comment-barnett071003.asp
Barnett:
" --- judicial conservatives say that there is no textual basis for the protection of a general right to liberty.
Unlike "privacy," however, both Due Process clauses explicitly mention "liberty."
The judicial-conservative response to this is to argue that liberty may properly be restricted so long as "due process" is followed.
As Justice Scalia wrote in his dissent:
"The Fourteenth Amendment expressly allows States to deprive their citizens of liberty, so long as due process of law is provided." (his emphases)
This is wrong on two counts.
First of all, the "due process of law" includes judicial review. And judicial review includes an examination of whether the government is acting within its delegated powers.
That is why, in U.S. v. Lopez and U.S. v. Morrison, the Supreme Court could properly strike down a federal statute that exceeded the power of Congress under the Commerce Clause.
Second, both the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment authorize the protection of unenumerated (and unenumerable) liberty rights "retained by the people."
The Ninth protects against federal violations of liberty rights; the Privileges or Immunities Clause protects against violations by states like Texas of liberty rights plus the Bill of Rights and other privileges or immunities of its U.S. citizens. --"