The death of morality?

Our Founding Fathers did not fight the Revolutionary War over a right to homosexual sodomy. And it should be obvious that the Constitution they drafted a few years later did not create one. Rightly or wrongly, as evidenced by the anti-sodomy laws they left intact, our Founding Fathers simply did not share the gay-rights conclusions of today's legal intelligentsia.

Likewise, the Fourteenth Amendment — the alleged source of many of our recently discovered "constitutional" rights — did not establish a sodomy right. It is silent on the subject, and thus had no effect on the criminal sodomy laws that 32 of 37 states had at the time of ratification in 1868 and that all 50 states adopted by 1961. Indeed, it was not until last week in Lawrence v. Texas that six Supreme Court justices found a constitutional right to gay sex. In so doing, these six appointees did not even pretend to find a basis for their ruling in either the text or history of the Constitution. They effectively admitted that none existed.

To many, the most troubling aspect of the Supreme Court's decision is the conclusion that public morality is an insufficient basis to sustain a law. Texas had argued that preserving the majority's sense of morality was a legitimate state interest, but the Court disagreed. According to the dissent, the consequence of this holding is "the end of all morals legislation."

At least at first blush, there appears to be something to this concern. Criminal statutes prohibiting bestiality, adult incest, and polygamy have been enacted for no reason other than to promote the majority's moral views. If morality is an insufficient reason to sustain a law, then the constitutionality of these statutes has been called into question.

Moreover, the Court attempt to distinguish such laws by suggesting that they prohibit behavior for which "consent might not be easily refused" should convince no one. These laws have nothing to do with consent. Take the prohibition on bestiality, for example. Society does not care about animals' consent. If it did, we would all be forced to be vegetarians because, presumably, animals do not consent to being killed and eaten. In any event, what is the reason to uphold a law protecting consent, if not to preserve public morality? We value consent not because it has been etched in stone tablets and delivered to us from above, but simply because we have made a collective moral judgment that consent is desirable.

Nonetheless, the dissent is ultimately incorrect in its conclusion that the Court's decision means the end of morals legislation. Paradoxically enough, the decision confirms that morality is a viable basis for law. The Court's decision was all about morality, the justices' morality. There is no other way to explain the result. As noted above, the Constitution's text and this country's history and traditions do not recognize a right to homosexual sodomy. And Supreme Court precedent is equally unsupportive, as less than 20 years ago the Court reached the opposite conclusion to the one it formed last week. Finding no basis for its decision in the Constitution, history, or precedent, the Court majority had no choice but to rely on its own collective moral judgment.

Hence the great irony of the Supreme Court's decision: Morality was the only reason for holding that public morality is irrelevant to the constitutionality of a law. In effect, what the Court held was not that morality has no place in constitutional jurisprudence, but only that public morality is irrelevant. The justices' own morality is decisive. Morals laws — such as prohibitions on bestiality, adult incest, polygamy, and, yes, gay marriage — pass constitutional muster if, and only if, five Supreme Court justices say so. The Court's holding does not signal the end of morality, but merely the transfer of decision-making power. Instead of permitting the public to enforce its moral views — as it should in a democracy — the Court (or, more aptly put, six members of it) surmised that it was the final moral arbiter. Because the law was "silly" (as Justice Thomas accurately described it in his dissent), the Court struck it down.

The bell thus tolls, not for morality, but for government by the people, an outcome that is neither "liberal" nor "conservative." Judicial fiat can be — and has been — used to serve the goals of both sides of the ideological spectrum. At the beginning of the last century, for example, the Supreme Court invalidated worker-welfare laws to benefit industry. The constitutional provision ostensibly relied on to reach that conclusion, the Due Process clause, is precisely the one used by today's Court to create a right to gay sex. And the next invocation of "Due Process" (depending on what alleged rights become acceptable to the legal elites in future years) may very well be equally "conservative" — perhaps at the expense of environmental programs or other social-welfare legislation. Alternatively, "Due Process" could be used for ends that are neither liberal nor conservative, but just plain-old wrong. For example, in Dred Scott, the decision that sparked the Civil War, the Supreme Court imposed its view of morality in finding a constitutional right to own slaves as property, immune from federal government interference.

Judicial activism can thus work in many directions, so until the high Court refrains from second guessing the moral choices of the democracy, the loser is not the Right or the Left, but the American people at large

The significance of these recent Supreme Court decisions is as follows, and they are, wothout exception ominious:

1. The battle over states' rights, 138 years after Appomatox and 49 years after the court ordered school integration, is finally, conclusively, over. There are no more states' rights and it is only a matter of time until the court gets around to picking off the remaining vestiges of states' powers one by one.

2. The idea of the written constitution as a social contract is dead. It has now morphed into a manifesto which can accomodate groups' rights as they come into favor.

3. The idea that law, constitutional law, should be dominant in ordering the affairs of men is now dead and in its place we will governed by a coctail of sociology, anthropology, psychology, and pop culture.

4. The unwritten Confession of Faith shared by our Justices for generations in which they conceive themselves in spirit to be LEGAL arbiters operating within a LEGAL system and according to its rules has been tacitedly abandoned, although its vocabulary has been retained to conceal the metamorphis, and the Justices now have assumed a new role as Shamons, Priesters, Oracles or something quite different which has yet to be fully revealed.

5. The legal system will cease to be a place where rights are vindicated and become a source for the establishment of INTERESTS. To attain the establishment of his interests, the clever advocate will see that the Gods of the new system will have to be propitiated. Theis means that sucessful advocates will have established their cause as the flavor of the month in a ever changing menu of fads, movements, and the like.

6. Resort to the Constitution will be an empty exercise resorted to by fools who do not know how the real game is actually being played.

I have a family member who is a lesbian. In her 50s, she has led a quiet life and is a very successful professional woman. She is as disgusted over all the gay activism as all of us are because she worries about children. She is quietly rearing a son. She believe that the activists in the gay community are few compared to the gays who do not agree with them and are blended into our society in a normal way. I believe that while the rest of us were distracted by the day to day grind of rearing children and building families and communities, the gay activists were busy getting higher degrees which would help them secure high level positions in all the institutions of society, including the judiciary. I believe that the judiciary, academia, the church, goverment, media, and the artistic community are filled with gay sentiments throughout. I also think the rest of society does not agree that the issue of homosexual sex should involve legislation which gives extraordinary access to those outside an adult age of consent or of animals. How many diseases do we now have that may have come from some kind of contact with animals? This has to do with the public good, folks. The majority of Americans feel they have no control over all this insanity while the cesspool gets larger and this will go on until terrorists attacks, disease or some other kind of calamity breaks the thin veneer of this society..Then corrections will come...

It seems to me that the difference between O'connor and Scalia is this: Oconnor will go to her grave gritting her teeth in the desperate conviction that she has done the right thing respecting abortion or gay sodomy or etc.

Scalia will go to his grave cheerfully indifferent whether he has done the right or the wrong thing, confident in the knowledge that neither the Constitution nor his salvation is dependent on whether a Justice does the right thing.

While there was much arguement about trade and manufacturing, the greatest arguement about states rights was the right of the states to keep slaves to keep th farms running, for without the cheap labor that slaves provided, the Southern farms of the day could not compete economically.

Also, the Gentry felt themselves above manual labor, so that also demanded slaves.

Either way, when considering economics of the south and the arguements of states rights, slavery was the main issue for the south, for it was not a simple desire to keep people in subjection, it was a simple desire to remain economically powerful as the industrial north.

Slavery was one of the main issues, therefore, and not a side issue as some try to make it, it was the greatest factor. There are too many quotes from the southern states leaders to dismiss it, openly declaring their need for slaves, and of their desire to keep slavery in those states.

Even the opening of new states was controversial. The introduction of NON-Slave states threatened the economics of slave states, and that was an additional reason for the slave holding states to defend their slave holdings.

Ive been reading up on this lately, two sources: One, an Oxford History of the US, another, a totally biased book wriiten by a Northerner at the end of "The Great Rebellion". Up here in Ct, it is hard to find a soley Southern version of events in the used book stores.

the greatest arguement about states rights was the right of the states to keep slaves

I am not aware of any STATE which held slaves but I acknowledge that states rights was advanced to justify slavery. The problem with that is that the Constitution explicitedly acknowledged slavery so a resort to states rights was not intellectually necessary.

But I think I do get your larger point which is that states rights as a Constitutional posture is tainted because of its being invoked in justification of racism, especially Jim Crow.

To get rid of Jim Crow the court swept aside states rights. As was pointed out in a recently posted article, Blacks were denied democracy in repugnance to the foruteenth amendment and the Justices acted to restore democracy at the ballot box and elsewhere. This was Constitutionally correct. But now the Court has gone further and denied the democratic will (in Texas to curtail homosexual sodomy)and impose their own morality. The states rights of Texas have been swept aside, its democracy ignored, to advance a social agenda.

That is a far cry from restoring democracy where there was none because of Jim Crow. Gays have a right to campaign to change the sodomy laws, they should not be able to litigate their way aroud the democratic process. Blacks had no other option but litigation.

States rights in this context is not a code phraze for anti - democracy but for democracy itself. States rights should not have been swept away in every application because it was abused by racists. We ought not to throw out the first amendment because it was also used by racists.

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