The powers not prohibited by the constitution to the states are prohibited by the constitution to the states
The most frustrating thing about post-Roe constitutional discourse, for somebody insular like me who doesn't get out much, is that everything bad is considered unconstitutional. Even by Tim Sandefur. On the law student with the bright future who asked Mr. Justice Scalia at an NYU speech whether he sodomizes his wife:
The question is deeply disrespectful, and I said so. My entire point is that it is equally disrespectful for the voters of Texas to arrogate to themselves the authority to inquire into the private sexual life of John Geddes Lawrence and other homosexuals (and for Scalia to hold this constitutional). My argument is this: if private sexual acts are a matter for public discussion and legislation -- as Scalia [believes] -- then there is nothing politically wrong with asking this question....
Justice Scalia’s private life is his private life, and nobody has the right to pry into such things. Well, then the same goes for John Geddes Lawrence and all other people: because we have a right to privacy that ought to protect us from such insulting interference. Yet this is precisely the principle that Scalia [denies. He] cannot have it both ways.
A consequence of believing (deliriously, one gathers) that the federal constitution is silent on something is that it should be made law, and the delirious proponent of that totalitarian view should live with the consequences. If Scalia believes the constitution is silent on whether duck hunting should be legal or not, it follows, naturally, that duck hunting must be outlawed, and we must giggle and point at the trapped Scalia, a hunter. Burned you!
If we have a right to privacy, it must be, ipso facto, protected by the federal constitution, as all good and salutary things are. Intuitively, you'd think the idea the federal constitution concerns itself with these kinds of things would be anathema to libertarians, but not the result-oriented ones, I guess.
It has been rightly said that the purpose of the Bill of Rights was to remove some things entirely from political discussion. Justice Scalia believes that private, adult, consensual sexual activity is not among those things. Therefore, it is entirely legitimate for a citizen to demand to know what Justice Scalia does in private.
Assume -- based on whatever evidence you can conjure up -- that the Bill of Rights appended to the federal constitution is meant to remove "sexual activity" from the sphere of political discussion. Sandefur's argument rests on the unstated premise that there is no other source of protection for our rights than the federal constitution, and no other legitimate guide to which to conform our behavior. No state laws or constitutions, no mores, no ethics, no values. No religion: Scalia, a Roman Catholic, should ignore his catechism and discuss sex with his wife in public, because whether or not his church says he shouldn't, that stricture isn't memorialized in the Bill of Rights. Federal government über alles.
If I agree with it the constitution protects it. This suggests as much tyranny as Sandefur seems to want to avoid.
The constitution, per the Ninth Amendment, does not deny or disparage rights retained by the people. To those of us for whom English is a first language, that does not mean every right retained by the people is protected by the constitution. To some of us, the federal constitution concerns itself with certain matters relevant to a large, diverse, remote government, and leaves the more important things to smaller groups.
We defend the dignity and privacy of individuals against old, outdated, wrongheaded, liberty-impugning state laws by persuasion and democratic change. More and more since Roe, most others run to court, or brandish the constitution and hold forth on how it plainly says things us dullards don't see or comprehend.
Read the last quote above again. Whether a private matter is anybody's business or not depends on whether you think the federal constitution addresses it. As a libertarian, I'd hate to live in that world.
:
Post a comment
Due to comment spam, please enter the five-digit security code along with your comment. I'm sorry for the hassle.
Terms of use/privacy policy (opens in new window)