Here's where I get off the bus with the article. It is indisputable that the founding fathers intended to leave issues like sodomy, gambling, prohibition etc to the states. The notion that the Constitution did not do so would have been laughable to the founding fathers. The Federal government has NO power in those areas under the constitution--neither the power to regulate individual behavior nor the power to prohibit the states from doing so.
So at the Federal level, the author is correct. But at the state level, he is completely wrong.
Not true at all. All prohibitions are infringements on individual liberty. -- Do you really think they agreed that States could flat forbid a man from drinking booze? Or from carrying cards/gambling? - Hell, they enumerated our right to carry guns, - and then said in the 9th that enumeration of such rights wasn't needed.
The notion that the Constitution did not do so would have been laughable to the founding fathers. The Federal government has NO power in those areas under the constitution--neither the power to regulate individual behavior nor the power to prohibit the states from doing so.
The Constitution specifies in the 10th that some powers are prohibited to States. Due Process of law denies Fed, State, or local government the power to arbitrarily prohibit booze, guns, -- whatever.
So at the Federal level, the author is correct. But at the state level, he is completely wrong.
"-- The reasoning, in essence, is that a Constitution that recognizes the right of a populace to revolt against arbitrary power and oppression cannot be interpreted to grant the state government authority to pass arbitrary and oppressive legislation. --"
"-- Thus, the right of revolution -- a key Second Amendment concept as well -- also works to forbid a Borkian majority's outlawing, say, contraception or sodomy [or other vices like booze, or gambling] -- merely because such practices cause (in Bork's words) "moral anguish" among the electorate. --"