Sandefur reads the Ninth Amendment as an affirmative protection of unenumerated rights -- surely not all unenumerated rights, like duck hunting, so a question for another time may be which rights in particular are affirmatively protected and, possibly more importantly, who decides.

At the outset, I should note that to the extent Sandefur's previous post said (and it did) "there is nothing politically wrong with asking this question" (emphasis supplied), he's absolutely right. I bring this up because he characterizes my argument in the previous post to be that "it's not fair" that Scalia was treated unprofessionally by some punk. That's not really what I was getting at. As I tried to make clear, what prompted me to write was Sandefur's conflation of "a bad idea" with "unconstitutional."

To wit: Anything not mentioned in the constitution is "a legitimate state interest," in the passage reproduced above. Here, the distinction may be more difficult (which is a shame, based on how well we're doing otherwise). True, Scalia dissents in terms of whether the constitution of the United States allows a state to outlaw or regulate particular conduct, and a short answer to that may be under the constitution, something is left to the states. That's because he and the Court have jurisdiction to decide that queston, not whether, the matter being free of constitutional stricture, the state should act. (At least, Scalia and I argue the Court has no such jurisdiction, the people do; and that may be the crux of the problem here.)

We can peer into Scalia's character for clues whether he would support a law against homosexual sex or not, as I wouldn't and Sandefur wouldn't, and Sandefur is free to, but it strikes me as unnecessary. All a Justice of the Supreme Court has the power to do is to decide, in concert with other Justices, whether the federal constitution prohibits the state action at issue. Where we seem to part is that I am comfortable with the idea that if the constitution does not prohibit something, all is not lost. There doesn't have to be a catch-all clause in the Bill of Rights, Ninth Amendment, Fourteenth or elsewhere, prohibiting laws that aren't good ideas. There are other ways to govern ourselves, and better ways to change bad laws.

I'll dispense with my "frivolous" argument, because it's not that big a deal, except to note that I think it's fundamental that our first recourse should be to the political process, which is a distinctly minority position lately, you may have noticed.

Mr. Justice Scalia is a big boy and probably doesn't need me to defend his feelings, but I wasn't, as I hope is clearer now. His view that where the constitution is silent you need to look elsewhere for guidance, prohibition, regulation, revelation, whatever does not mean that anything not menioned in the constitution is fair game for "armed agents of the state" to run around enforcing. The country needs to disentangle itself from the notion the constitution of the United States is full of every good thing and a balm against every bad thing the human mind can conceive and legislate against. That's it's own kind of tyranny.