Is Lawrence Worse Than Roe?

CRISIS Magazine - e-Letter ^ | 6/27/03 | Deal Hudson

[Jim Noble]

But to say that private sexual transactions between consenting adults may be criminalized, is to ignore the 9th Amendment and give it no effect whatsoever.

The authors of IX recogized,as you do not, that such "transactions" seldom are truly private.

[aristeides]

The Supreme Court's order in Limon vacated the Kansas court's judgment and instructed it to reconsider the case in the light of Lawrence.

[cherrycapital]

A 17 year sentence vs. a 15 months sentence has no rational basis.

[Sabertooth]

Or, in the words of the court, "uncommonly silly."

Those were actually the words of Clarence Thomas in his concurrence with Scalia's dissent. Thomas held that the silly law was Constitutional, and that the SCOTUS had no legitimate basis to strike it down.

[tdadams]

I haven't thought about the issue enough to have a considered opinion.

Well it's nice of you to make this confession after you've launched a bellicose tirade about it.

[Jim Noble]

If all bad laws are going to be declared unconstitutional, we're in a heap of trouble

Especially if the grounds to strike them down is the power of the Court as an embodiment of the General Will.

That will lead HERE in short order.

[tdadams]

If all bad laws are going to be declared unconstitutional, we're in a heap of trouble.

Really? Why is that? I would think striking down bad law would be a good thing.

[aristeides]

That's as conclusory a statement as the Supreme Court's was in Lawrence that sodomy laws lack any conceivable rational basis, in what purported to be rational review.

[Hat-Trick]

What about the 4th Amendment. Do we not find a right to privacy somewhere in here:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Hat-Trick

[aristeides]

My tirade is against declaring the law unconstitutional. That I certainly have thought about.

[cherrycapital]

Yes, it's come to be known as "rational relations with teeth" which is a long overdue development.

[Reactionary]

It's spelled "fallacy." Fool.

[aristeides]

I take it you would be happy to be ruled by philosopher kings who have absolute power. No thanks.

[Schuck]

A contrarian view...

While I agree this case was wrongly decided (see Justice Scalia's excellent dissent), I'm not sure we are headed down the slippery slope.

Years ago, the Court ruled that illegal immigrant children had to be allowed to attend public school. (I'm too lazy to look up the case name or cite, think it was a Texas case). Everyone predicted that was it, it was just a matter of litigation until illegals had every right that citizens have. Didn't happen. While there may be one or two more exceptions, the Court has refused several times to extend other constitutional rights to illegals - that's why we can have "military tribunals" for terrorists, for example.

Why only the right to attend school? My theory is that the Justices let their desire to be charitable and offer a hand up trump the Constitution, and issued sort of a "one-time" exception. Legislating from the bench? Yes. Wrong? In my opinion, yes. But understandable - I think the thought of kicking poor children out of school onto the streets would give even the most hardened conservative pause.

Flash forward to Lawrence. The Texas law was archaic and, in Justice Thomas' words, "silly." The Legislature should have repealed it years ago, it was an invitation to discriminatory enforcement. It needed to go. So the Justices bent the Constituion this one time. I suspect when the issue is gay marriage (or polygamy or drug use or euthanasia) the Court will find an excuse to back-pedal away from their reasoning and let this decision stand as a one-time freak.

[aristeides]

You call it "overdue," I call it fundamentally dishonest.

[cherrycapital]

Better by far than the yahoos and pinheads in the state legislature.

[tpaine]

I disagree with the whole substantive due process reasoning, by the way, for the same reasons mentioned by the article. However, I would've reached the same result (upholding a right to privacy) as one of the 9th Amendment's unenumerated rights (this was Justice Goldberg's position in Griswold v. Connecticut, but the 14th Amendment faction won out by the time of Roe.)
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Our general rights to life, liberty, and property encompass ~all~ of our unenumerated and enumerated rights that can be imagined..

IE.. It is doubtful that any rational person would argue against our right to live a 'private' life, secure in our homes and persons.
- Thus, does it not reasonably follow; - we have an unenumerated, fundamental right to privacy, found under both the 9th & 14th amendments.

In the same way, we can find our right to keep arms in both the 2nd, and in the 14ths restriction that we can not be deprived of property without due process of law.

Prohibitory state laws against behaviors or property can not be termed to be 'due process'. - They are simply the arbitrary rules of a majority.

[Western Phil]

The supreme court said the punishment must be the same. They in no way argued about the length a state can impose, only that the punishment must be equal.

You seem to be arguing that statuary rape and statuary sodomy should be punished the same. The crime is not the same and why should the punishment be the same?

[B-Chan]

If my kids want to be gay, that is a-ok with me.

Then I pity you, my friend. Would it be "okay with you" if they decide to become alcoholics? How about heroin addicts? Or necrophiliacs? Just more alternative lifestyle choices, right?

You can have all the Judeo-Christian culture you want in your own homes and churches.

Not for much longer. Pretty soon people with your sentiments will be locking up us "hate criminals" for what we do in our homes and churches.

Besides, it's not "culture" unless it's public and common to the majority of the population.

But the government is not your private goon squad for the enforcement of Christian morals. At least not anymore.

In general, the goon squads used to enforce the common morals of Western civilization, not specifically Christian morals. Some communities had laws that were specifically based on Christianity, true, but most laws enforced by the goon squads were based upon common-law restrictions on behaviors that were considered evil by people in all Western cultures -- you know, things like murder, rape, sodomy, and so forth.

But you're right -- we as a society won't enforce those laws anymore. The New Order has come swept away those tired old relics of a less-enlightened age! Behold, all things are made new!

But the goon squads remain. The question is: whose morals will they enforce now?

[aristeides]

Doesn't Limon show that Lawrence is already more than a one-time freak?

My chief reason for supporting the sort of amendment that this thread is about is that it might persuade the Supreme Court to severely limit the application of Lawrence.