[CobaltBlue]

Scalia is pretty hot about it, isn't he? Yet, even Scalia recognizes that certain fundamental rights are protected by the "liberty" clause in the 5th and 15th amendments:

>>Our opinions applying the doctrine known as “substantive due process” hold that the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest. Washington v. Glucksberg, 521 U. S., at 721. We have held repeatedly, in cases the Court today does not overrule, that only fundamental rights qualify for this so-called “heightened scrutiny” protection—that is, rights which are “‘deeply rooted in this Nation’s history and tradition,’” ibid. See Reno v. Flores, 507 U. S. 292, 303 (1993) (fundamental liberty interests must be “so rooted in the traditions and con-
Cite as: 539 U. S. ____ (2003) 9 SCALIA, J., dissenting science of our people as to be ranked as fundamental” (internal quotation marks and citations omitted)); United States v. Salerno, 481 U. S. 739, 751 (1987) (same). See also Michael H. v. Gerald D., 491 U. S. 110, 122 (1989) (“[W]e have insisted not merely that the interest denomi-nated as a ‘liberty’ be ‘fundamental’ . . . but also that it be an interest traditionally protected by our society”); Moore v. East Cleveland, 431 U. S. 494, 503 (1977) (plurality opinion); Meyer v. Nebraska, 262 U. S. 390, 399 (1923) (Fourteenth Amendment protects “those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men” (emphasis added)).3 All other liberty interests may be abridged or abrogated pursuant to a validly enacted state law if that law is ra-tionally related to a legitimate state interest.<<

Take a look at what Scalia says - he argues that liberty interests are protected if they are deeply rooted in our history and tradition. Even Scalia believes that history and tradition can create rights that were not contemplated by the framers of the Constitution, e.g., the right of black people to vote was certainly never contemplated by the Founding Fathers.

He argues that the majority opinion in Lawrence v. Texas purports to rest on the "rational basis" test but he doesn't think it does. Well, that's the way the cookie crumbles.

Just thought I'd mention it for the edification of those who argue that the Constitution has no elasticity whatsoever.

[ninenot]

And do you think that Scalia used the phrase "orderly pursuit" by accident?

Scalia understands, as do we, that "orderly" is not the same as "Disorder," which is commonly ascribed to homosexual inclination, not to mention activity.

[colorado tanker]

So, just what makes the "right" to gay sex so "deeply rooted" in the Constitution? On the other hand, I don't think I want you to tell me.