Strengthening Constitutional Self-Government

No Left Turns

Lap Dancing on the Constitution

George Will nails this sodomy ruling: "The question is not whether states are wise to criminalize this or that sex act outside of marriage. Rather, the question is: Once the court has said that some such acts are constitutional rights, by what principle are any of the myriad possible permutations of consensual adult sexual activities denied the same standing?" Please read the whole thing.   

Discussions - 4 Comments

I do not pretend to be a lawyer, but I do think that all sides are ignoring the Ninth Amendment. I know that most jurists, and especially conservative jurists like Bork and Scalia, hold a very condescending view of that amendment, but that assumes that the founders were stupid enough to put a meaningless amendment in the Bill of Rights. I think that the amendment simply states the obvious, that the rights of individuals are nearly infinite and that the state may only abridge those rights in accordance with its enumerated (and rather narrow) duties. Therefore, a right to individual privacy and autonomy within one’s home is probably covered amongst the rights the people as individuals retain over and against the state. With this in mind, the Court’s analysis of the history of the enforcement of sodomy laws becomes very important insofar as it was impossible to enforce them against private consensual relations because of the perceived, if not explicitly stated, principle that we are autonomous within the sphere of our own homes to the extent that we are not commiting violence against others (e.g. physical assault, incest, bestiality, etc). Violence against nature does not count as Thomas Aquinas was not one of the founders and the neo-Thomistic interpretation that say Thomas West has of the Declaration and the Constitution is, to say the least, hard to swallow given the Founding Fathers view of the Jesuits.


Mr. Will and, indeed, the Roe court miss the fact that things such as abortion, drug purchases and lap dances are incidental to commercial contracts (i.e. one pays for the services) and are therefore well within the scope of legitimate governmental authority. That is why I tend to agree with Justice Kennedy (who is in my humble opinion the best jurist on the Court, even if he is wrong on first-term abortion) that liberty protects the bedroom from unreasonable state intrusion. I only wish he would have explicitly base that finding on the Ninth Amendment rather than the vague proclaimations of Roe and Griswald.


One final point: I do not have any fancy legal jargon in which to couch the following idea, and it may be totally anti-constitutional, but might it be appropriate for the court to strike down "uncommonly silly" laws that are unenforced and unenforcable on the grounds that such laws breed contempt for the law as a whole and therefore undermine the ability of the Executive and Legislative branches to execute their duties under the Constitution? Just an idea which, as I said, may be entirely without merit.

"Mr. Will and, indeed, the Roe court miss the fact that things such as abortion, drug purchases and lap dances are incidental to commercial contracts (i.e. one pays for the services) and are therefore well within the scope of legitimate governmental authority."

If the Founders had intended that the Supreme Court should write laws they sould have spared us the utter nonsense of electing representatives to the U.S. House every two years and senators every six.

Quite to the contrary was the intention of the Founders. It was after all the offensive "taxation without representation" that caused much of the fuss in the first place, and one thing they sought to remedy by instituting a "representative republic" in the summer of 1787.

Justice Kennedy obviously disagrees with this form of federal governance (Congress should merely just dole out the dough as specified by "special interest groups," and leave writing the law to the courts). It would be nice if SCOTUS would just do us all a real favor and cut off that legislative branch, and spare the trouble and expense of electing these nitwits every two years.

"If the Founders had intended that the" Federal government dictate community morality standards, they would have officially nullified the sovereignty of the 13 States and people in the text of Consttitution of the United States of America. Instead we had to wait some 217 years for Associate Justices O’Connor and Kennedy to DISCOVER this Federal POWER to nullify "State’s authority" hidden amongst the untold multitude of the shadowy "penumbra" of "Constitutional Rights".

"Violence against nature does not count as Thomas Aquinas was not one of the founders and the neo-Thomistic interpretation that say Thomas West has of the Declaration and the Constitution is, to say the least, hard to swallow given the Founding Fathers view of the Jesuits."

No, but Thomas Jefferson was and his thoughts on the subject are enlightening, to wit:

"Whosoever shall be guilty of Rape, Polygamy, or Sodomy with man or woman shall be punished, if a man, by castration, if a woman, by cutting thro’ the cartilage of her nose a hole of inch half inch diameter at the least." (Jefferson Papers, Princeton University Press, V. 2, p. 305).

You are correct that at least some the Founders, especially the Viriginians, where a Catholic could not even serve on a jury nor testify in court, having a low regards for Jesuits. However, you might consider their generally high regards for works of John Lock. Also, you might also consider the enfluence Francisco Suarez, a Jesuit, had on Lock’s philosophy and political thought.

Francisco Suarez (1548–1617)

“...if a legitimate prince governs tyrannically and no other means of self-defence can be found than the expulsion and deposition of the king, then the people, acting as a whole...may depose him.”

During the sixteenth century, a mixing of the profane and the sacred took place in the political scene characterized by the appearance of the doctrine of Divine Right of Kings. Throughout mostly northern Europe, and particularly in France, monarchs were demanding for themselves divine sovereignty just as the church had claimed divine moral authority. What occurred was a divinization of the state in which the monarch claimed to be answerable to neither church nor his subjects but to God alone.

Against such defenders of Divine Right, like King James I of England, Francisco Suarez sought to defend the sacred institutions against a secular perversion that threatened the integrity of both church and state. Suarez, a Jesuit priest and professor of theology at the University of Salamanca in Spain, believed that no monarch could posses attributes of the sacred.

Suarez argued that the church was the only institution established through divine intervention by an immediate act of Christ and thus truly of divine right. The authority of the state is not of divine but of human origin. It is the people who consent to be governed by the political authority, not from God directly. Thus the people, in extreme cases, may depose their king.

The church’s object is the health of each individual soul and its spiritual salvation, as opposed to the state whose jurisdiction is solely temporal, concerned with the common good in secular life. Given the primacy of the spiritual over the temporal, the church is thus superior to the state. This does not mean, however, that the church has unrestricted temporal power. The pope’s legitimate authority lay in spiritual and theological, rather than secular and political, matters. The major works of Francisco Suarez include De Legibus on law and Defensor Fidei, a defense of the church against King James I. From: Acton Institute for the Study of Religion and Liberty at: http://www.acton.org/publicat/randl/liberal.php?id=108

His "expulsion and deposition" of the tyrannical prince by the people sounds like:

"that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government" - from the Declaration of Independence.

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