I agree that the context of his statement can color it "defending" or merely "elucidating". However, I don't think he made a "reasonable" case that this is not a constitutional issue. Scalia repeats over and over again that there is "no right to homosexuality" in the constitution. Well of course not...but there is no explicit right to property either but that right is implicit in several amendments...notably III and IV. Sexual actvity is among the most personal of all human behaviors and it is absurd to me to think off the government as having that jurisdiction. There is no reasonable way to defend the proposition that the question isn't of constitutional importance merely becase it is not expressly mentioned in the words.

There is no way a reasonable person could disagree with you, huh?

Mike,

You say :

"Sexual actvity is among the most personal of all human behaviors and it is absurd to me to think off the government as having that jurisdiction."

And then contradict yourself in the very next sentence.

I think what Scalia was trying to say, albeit not perfectly worded, was exactly that which I quoted from you above.

Whatever sexual preference or encounter or whatever I chose to have is exactly my own personal business and shouldnt be a constitutional issue.

I agree with you, Dean, but it should be noted (as Taranto does) that most people are probably not intentionally removing the context from Scalia's statement but instead are mistakenly relying on an early Associated Press dispatch, widely linked around the blogosphere, that elided the context:

"The court has taken sides in the culture war," Scalia said, adding that he has "nothing against homosexuals."

I've found at least one later rewrite of the AP story that removes the "nothing against homosexuals" part but keeps the "court has taken sides in the culture war" part (see fifth paragraph).

Well, it is a Constitutional matter now. I think somehow the Republic will survive. ;-)

Dean,

Misinterpretation of Scalia's dissent is another example that we live in a PC world. Being a liberal means never having to admit you are wrong. It also means you have no burden of proof, either.

Just move on and ignore legitimate criticism. You only have to vilify those with whom you disagree. Once you've escaped those two you can then act as if your opponent has the burden of proof to prove what you said wrong. It must be nice being a liberal.

Kevin,

In this case, what would you say the opposite of a liberal is?

I'm not sure I understand your critique of Dean's point. Of course, when I faced down Dean in a discussion, I usually walk away with my tail between my legs. I am a liberal too but not always right (except on social issues, where I'm never wrong).

Tim the Soldier

Now, why is it that I suspect he will continue to be pilloried as a horrible backward mean-spirited jerk, and that few corrections and retractions will be issued?

I don't Antonin Scalia gives a rat's ass what the media think of him. I think he regales his friends with all the "bad press" he gets from the likes of Dowd, et. al.

Just my opinion. I might be wrong.

But I doubt it.

What Mike says above re: liberal meaning never having to say you're sorry, etc., ad nausaeum, is just a continuation of a long script of "Is not! Is too! Is not! Is too!"

There is credible evidence that Justice Scalia, while standing on steady Constitutional ground in his dissent, does believe that homosexuality is immoral and that the "promotion" of homosexuality (i.e., the lack of legal restraints against it) is a Bad Thing. During oral arguments in the Lawrence v. Texas case, Scalia suggests that a compelling State interest in preventing gay and lesbian Americans from teaching kindergarten is that they might be encouraged to follow the path to homosexuality. This betrays his belief -- a common anti-gay belief -- that homosexuality is a choice and furthermore a sinful choice, since why would you protect children from something neutral and/or good?

Now some liberals do take their criticism of Scalia too far, labeling him a bigot or a fascist, et cetera. These are emotional statements without any real fact to back them up. I don't believe that anti-gay sentiment is evil, just incorrect. He's certainly entitled to his opinions and feelings -- yet I must question Scalia's assertion in his dissent that this ruling is tantamout to calling anti-gay sentiment evil. It isn't evil -- it just isn't a basis for law.

Taking any opportunity you see liberals misbehaving to label them all, while turning a blind eye in the same sentence to, say Ann Coulter (McCarthy apologist) or Michael Savage (xenophobic cultural warrior), is disingenuous and partisan. It feels good, but it doesn't prove anything.

What Mike says above re: liberal meaning never having to say you're sorry, etc., ad nausaeum, is just a continuation of a long script of "Is not! Is too! Is not! Is too!"

There is credible evidence that Justice Scalia, while standing on steady Constitutional ground in his dissent, does believe that homosexuality is immoral and that the "promotion" of homosexuality (i.e., the lack of legal restraints against it) is a Bad Thing. During oral arguments in the Lawrence v. Texas case, Scalia suggests that a compelling State interest in preventing gay and lesbian Americans from teaching kindergarten is that they might be encouraged to follow the path to homosexuality. This betrays his belief -- a common anti-gay belief -- that homosexuality is a choice and furthermore a sinful choice, since why would you protect children from something neutral and/or good?

Now some liberals do take their criticism of Scalia too far, labeling him a bigot or a fascist, et cetera. These are emotional statements without any real fact to back them up. I don't believe that anti-gay sentiment is evil, just incorrect. He's certainly entitled to his opinions and feelings -- yet I must question Scalia's assertion in his dissent that this ruling is tantamout to calling anti-gay sentiment evil. It isn't evil -- it just isn't a basis for law.

Taking any opportunity you see liberals misbehaving to label them all, while turning a blind eye in the same sentence to, say Ann Coulter (McCarthy apologist) or Michael Savage (xenophobic cultural warrior), is disingenuous and partisan. It feels good, but it doesn't prove anything.

McCarthy got a lot of things right. The fact that he, personally, was a scumbag, does not discredit him any more than it doesn any other member of Congress.

I'm looking forward to Annes analysis. (Not that I think she has a chance of rehabilitating his rep.)

Actually, you don't even know that Scalia thinks that children can be taught homosexuality. You only know that he thinks that the state may have a reason to believe it. That's not splitting hairs, or anyway, it's the kind of hairsplitting a Justice should be doing.

I do think Thomas' dissent was much clearer, and that Scalia would have been better off just joining in that dissent: there's no such thing as "constitutionally silly." It's a reasonable argument, even though it lost.

Anyway, as I said, I'm glad the laws are gone anyway; I just hate to see dissenters treated so shabbily in some quarters (not that you're doing that, John.)

To change the subject somewhat: I've long believed that gays are playing a dangerous game with this unswerving, at times almost rabid insistence that "gay is not a choice." There are several things wrong with it, not the least of which is that it implies that homosexuality is a birth defect and that, at some point, it will be curable. It also implies that bisexuals are okay to kick around, since they are making a choice--and, indeed, you know as well as I that bisexuals do get kicked around a lot in the gay community.

Overall, the "it's not a choice" rhetoric--and that's really what it is, since the science does not support that conclusion in all cases--has served the gay community well politically. But in the long run, I'm not sure they realize the potential price for that political expediency. Yes, today, while some claim to have been "cured" from homosexuality (and by the way, they don't deserve to be hated for their choice, do they?), we know such a reliable "treatment" does not exist. But if sexual attraction is merely a matter of chemistry--and it seems likely that, biologically, it almost certainly is--then it's quite possible that in some future decade, some scientist somewhere's going to invent the little magic pill to "fix" it.

I've long believed that, "this is my lifestyle choice, leave me the hell alone" is the more morally correct position, rather than, "I simply can't help it." The latter has worked well, for now. But at what price to the future?

Well, we'll see I guess.

Dean,

I didn't care how many times my mother tried to feed me celery. Putting cream cheese or peanut butter on it didn't get me to like it. The fact is, I don't like celery. And the fact is, I never chose to be heterosexual, I just am. Maybe I have a defective anti-celery gene in my DNA, who knows? What I do know is that I don't like celery...period, but some of my best friends love celery and I respect that. I certainly don't want to make laws to forbid eating celery, and if my state banned celery eating, I would hope the court would step in to strike down those laws.

Tim the Soldier

You know, I like that celery metaphor. I've made the same point similarly by comparing being gay to enjoying banana and mayonaise sandwiches. Which an aunt of mine does. Other people run screaming from the room when she does it, but there you have it: she loves 'em.

Although it does point to another problem with the "it's not a choice" business as a firm, unswerving, "no dissent allowed" position. Does it open the door to suggest that some heterosexuals have an instinctive aversion to homosexuality? Could it be that some straight men, in particular, have a genetic revulsion for the very subject, which has nothing whatever to do with social conditioning, religion, or anything else? Indeed, could it be that those icky religious laws calling it perverse were there precisely because certain people felt this instinctive revulsion?

Mind you, it's not a revulsion I've ever really felt--I've had gay friends since I was 13, well before it was socially acceptable to say that. And I often defended them in situations where it was not politically expedient for me to do so. I'm asking these provocative questions because I think they're worth exploring, and that they point to potential conflicts in the future.

By the way: I would not expect a law against eating celery to be unConstitutional. Nor a law insisting that celery be put on all food. If you didn't like such a law, I'd suggest your best way to change it would be to, you know, lobby your legislature, and vote, and stuff like that. That's the whole idea of democracy, isn't it?

The question here is academic, of course, but still. Where do you want the court to stop with this striking down of laws you don't like? I find our anti-pot laws immoral. But if I were a Supreme Court Justice, would it be my place to impose my moral views in the matter?

I know I'd be happy if the courts simply decided that medical marijuana in particular were also covered under the right to privacy. But a part of me would worry about just how much we're letting the courts get away with this sort of thing. Where's it end?

Tim,

I am commenting on the usual behavior of liberals here. National debate was debased ever since Clinton arrived in Washington, D.C. I saw no attempt on the part of liberals and Democrats to accept any burden of proof for some of the outlandish things they said. For example, all the Clintonistas ran against Bush 41 saying "Bush gave us the worst economy in fifty years" without providing any proof that I saw. They seemed to think that if they say anything enough times it would turn into the truth.

First, the worst economy in fifty years occurred during Jimmy Carter's administration, not during the Bush 41 administration. Jimmy Carter had no solution whatsoever for the double-digit inflation and the double-digit unemployment all Americans experienced while he was President. If fact, it was the ONLY time America ever experienced both phenomena simultaneously.

Second, the Clintonistas SHOULD amply share their burden of proof supporting this unsupported claim. They did not do so during 1992. I am still waiting. Sliming people in this way is typical Democrat behavior these days. It all begins when they make any irresponsible comment without proving it. They always believe that anybody disagreeing with them must prove them wrong. This cleverly reverses the burden of proof.

When reversing burden of proof in this way liberals utilize what lawyers call the "negative precedent." Hitler called it the big lie theory. It works this way: If I say something bad about you or make an outlandish claim I know is false I gain credibility every time I say it. The more times I say it the more people will begin to believe it provided you do not confute or at least refute what I say. After all, if I say you are an immoral child molester voters might believe it provided you do not sue me for saying this lie. This is the essence of the Big Lie. The entire fulcrum on which this pivots is the negative precedent. If you do nothing, I win. Therefore, there is no disincentive for me to stop until you stop me. When I repeatedly say the exact same lie with impunity I win because you did nothing.

I believe liberals such as Dowd, Begala, et. al. are doing much the same thing to Antonin Scalia and Clarence Thomas. It's as if the liberals believe they took Clarence Thomas' reputation from him during his confirmation hearings. However, Mr. Thomas CAN get his reputation back IF he rules "the right way on 'important' cases" that are, of course, very important to liberals. If he does not, then he still receives the same old liberal treatment from the media. This clearly illustrates how arrogant these liberals are.

These types of bitter, spiteful liberals NEVER admit to being wrong on anything. The closest they will come is to accuse a conservative of "being wrong, too." Or, they will accuse you of "doing the same thing, too." This goes on ad nauseum with liberals. I guess Democrats/liberals quite incorrectly believe this tu quoque argumentation is somehow valid. Or maybe, they just never took a course on introductory logic. Heck, even if they read one-half a book on introductory logic would be an improvement.

Democrats also believe that personally attacking somebody with whom you disagree is fair. The abuse of Florida's Secretary of State after the 2000 recount is a classic case in point. I saw Paul Begala personally attack Katherine Harris on Crossfire repeatedly for her physical appearance and her use of makeup. This is as low as any public figure can get. Attacking a woman for her looks is always regarded as hideous behavior, unless you are a Democrat. Not only does Begala not see fit to admit he was WRONG and APOLOGIZE for attacking Harris so hideously, he just does not stop. He mentions this every single time he says Katherine Harris' name. You begin believing her real name is "Katherine Harris the Woman Who Wears So Much Makeup You Can Carve Your Initials in Her Face." I am referring to these typical obnoxious, liberals. I guess you can throw Maureen Dowd in there, too.

>> In this case, what would you say the opposite of a liberal is?

To answer your question, I would say the opposite of a liberal is an open-minded person who listens with his ears instead of his mouth. I hope I answered your question. This has been an interesting dialogue.

kevinb,

I present to you Kenneth Starr. If there ever was a more biased personally attacking asshole in american politics, I haven't seen one. If he is the opposite of a liberal, I'll always be a liberal.

Tim the Soldier

By the way: I would not expect a law against eating celery to be unConstitutional...If you didn't like such a law, I'd suggest your best way to change it would be to, you know, lobby your legislature, and vote, and stuff like that. That's the whole idea of democracy, isn't it?

Well, partially. Simply said, in a democracy the rights of the minority are ultimately protected by the Constitution. You can appeal to the judicial branch of government to protect you against the will of the majority, if in fact their will goes against the Constitution.

But then you knew that.

The correct verb ought to be "Dowdlerize", rather than "Dowdify".

"Bowdlerize", according to Webster's, relates to the unfortunate habit of one Thomas Bowdler, an editor, circa 1825, "to expurgate (as a book) by omitting or modifying parts considered indelicate".

In short, the 19th century godfather of political correctitude.

I also submit "Dowdosity", for any of the most pungent examples of her work.

Arnold Harris
Mount Horeb WI

Kevinb criticizes "liberals" (whoever they are) for being closed-minded and slanderous and illogical, and that the opposite of a liberal is an open-minded person. What an easy way to end a debate: claim your opponent is incapable of debate.

Well, if that works for your day-to-day life, I won't question such a lifestyle choice; but it's the sword many conservatives live by, and when they die by it, I'm hard pressed to feel sympathy.

In response to Dean's questions about homosexuality, it's my opinion that the general concept is: sexual desire is not a choice, while sexual behavior is. It's the basis many anti-gay people use to argue against homosexuality: it's wrong, you don't have to act on it, so don't. My argument, however, is that while we aren't necessarily at liberty to choose who we will be attracted to, we have the liberty to choose who we will actually enter into intimate relations with. Some people think that liberty can be curtailed by the state. I do not.

Working from a simple definition of democracy, it's true that things like sexual behavior or the consumption of celery could be voted upon. However, from the standpoint that individual liberties have primacy and that government's role is to protect individual liberties first and foremost, there is little rational justification for the state interfering in private matters of choice.

I'm one of those "bisexuals" that get such rough treatment in the gay community. I do find myself attracted to women on occasion. However, my overwhelming preference is men, both sexually and emotionally, so while I could marry "the right girl" and live that sort of life, I choose not to. I like my attraction to men, and my bond with my current partner. They're positive things in my life.

And so I must concede to Dean that the "I can't help it!" defense is flimsy, both rationally and legally, and that we'll have to eventually come to a consensus that sexual orientation is not a "class" in the same way race or gender are classes; yet it is a fundamental human right that must be respected.

When anti-gay religious persons tell me that I should try to change, I remind them that religion is also a choice. It's far easier to switch religions than it is to switch one's sexual orientation, if the numbers are any indication. Yet religion is protected. Sex should be, too.

Well I must say I find that quite refreshing, John, because I've gotten blasted as a hatemongering neanderthal in the past just for saying things like that.

FWIW, I'm quite in agreement. I still worry that relying on the courts to fix these things is worrisome, and I worry about potential abuse in other areas, but on a moral level I'm completely supportive.

Well, partially. Simply said, in a democracy the rights of the minority are ultimately protected by the Constitution. You can appeal to the judicial branch of government to protect you against the will of the majority, if in fact their will goes against the Constitution.

Yes, well, there's a good deal more of that going on than I'm comfortable with. We seem to be inventing rights right and left these days, and it bothers me. Why do we bother with legislatures, or even Constitutional amendments? Let's just appoint judges who promise to do whatever we want on our behalf, and be done with it?

Concerns about judicial overreach do go back to the very beginnings of the Republic, so I don't pretend that we're on the verge of the Supreme Court simply seizing control of everything. But still... where does the basic philosophy that says, "hey, if you want this done, go vote, this isn't what the judges are there for" get remembered in these discussions?

Did someone say "amendment?"

Or perhaps, "culture wars?"

The shot's been fired:

Senate majority leader said Sunday he supported a proposed constitutional amendment to ban homosexual marriage in the United States.

My word, is this a matter of constitutional proportions?

I would say that it should not be a Constitutional matter. But the kind of people who would screech at a Scalia or a Thomas for saying, "the courts should limit their interference in the democratic process" are the people who've caused caused revolts like this.

Because let's face it: this may be revolting, but it's also a revolt--mostly because an increasing number of people believe that the courts are subverting democracy itself.

This is going to get really ugly. I expect to lose some friends over it. It's very depressing.

Sow the wind and reap the whirlwind.

Conflicts like this are necessary in order to learn more on a societal level about what human rights mean. There are some people who believe that, according to a strict interpretation of the Constitution (a fundamentalist interpretation, in my opinion), individual liberties can be legislated away by community consensus at the State level. There are some people like myself who believe that individual rights have primacy and are a matter neither for the State or the Federal government to regulate.

Then again, I'm largely an Objectivist, which probably has a worse name in civil discourse than "homosexual".

It's highly, highly likely that this Constitutional amendment will pass. The will of the people notwithstanding (I don't know if same-sex marriage has majority support or not, and I don't care), the majority in Congress is Republican, and their platform is clear: homosexual Republicans are okay, just not homosexual Republican acts. We'll tolerate the campaign contributions (ever since the Bob Dole / Log Cabin debacle), but we won't allow any public sanction of their lives as they care. It's strangely reminiscent of Catholicism, whose approach to homosexuality strikes me as schizophrenic: follow the rules, pay your tithes, stay silent and single, and you're fine as long as we don't know about it. What sane homosexual with any personal dignity would suffer that? Some do, to be sure, but it's beyond my ability to comprehend.

But even as the Prohibition amendment passed, the amendment that repealed it passed too. In a democratic society (even in a Republic), the beauty is that no one person or group owns the truth, and today's defeat could be tomorrow's victory. In the long term, I think that the reality of stable, loving same-sex relationships, comprised of law-abiding, tax-paying citizens who mow lawns, who plant flowers, who fix cars, and who take out the garbage, will eventuall make even the most strident anti-gay activists wonder what they're fighting so hard against: nice people? Seems the truly Christian path would be feeding the poor and comforting the sick -- and giving up one's possessions, as they will not fit through the eye of a needle.

The thing to remember, Dean, is that they always intended to pass this amendment. They would have done it regardless of Lawrence v. Texas. And it isn't because we're trying to take their democratic freedoms away. It's because we have the audacity to live our lives without shame and without apology -- throwing our sin in their faces -- and in order for them to continue to live with their premises unchallenged, they must use the law as an intstrument of tyranny and not of freedom.

The Lawrence v. Texas ruling takes away the freedom of the State -- not individual liberties. Last time I checked, Texans were free to not engage in sodomy. Community standards are determined by community consensus -- and gay people are a part of that. We are part of culture. We are part of America.

Let them pass it. Many, many gay Americans have been waiting our whole lives, and we'll keep waiting. We already know we can get married. We've always known it. To know it, I all I have to do is cook dinner for my partner, and watch a little television, and go for a walk and pay the bills. I'm married. The government just needs to catch up.

I don't want to get into a long diatribe about Objectivism, mostly because I don't tacitly accept everything Objectivism proposes (which to many an Objectivist means I'm not one, which is ludicrous). However, what I'm having a really, really hard time with here is the concept of collective rights. What I'm hearing (and I could be wrong), is that the many (a community, for example) have the right to regulate the private behavior of the few (a couple or an individual, for instance), for the sake of upholding community standards of morality.

This is the place where it's exceedingly difficult to bridge the gap.

I believe that collective rights do not exist. There are only individual rights, which governments either protect or violate. The Supreme Court ruling essentially says to the State -- which is a collective representing a collective -- "you may not meddle in these matters". Now on a purely States' Rights grounds I can understand the opposition to this ruling. It's dangerous for the Feds to do too much meddling in State matters.

My argument, however, is that rather than the Feds saying to the States, "The Feds reserve the right to legislate private morality and you do not," the ruling actually means, "Neither we the Feds nor you the State may meddle in these affairs. We're both out of the picture."

This can be compared to what's happening in this country in the so-called (ineffective, unjust, irrational, ravaging) war on drugs: the Feds and the States are meddling in private matters (and matters pertaining to the sovereignty of the body); but when a State decides to get out of the private sphere, the Feds muscle their way in. That's an example of inapropraite meddling in State matters by the Feds.

I don't agree with this ruling, Dean, merely because I agree with it. This isn't assent by convenience, whatever delusions you might charge me with. I agree with this ruling because it upholds individual liberties and refutes the collective rights of the majority through the State.

When the constitutional amendment against same-sex marriage comes about, it's my hope that it will be overruled on similar grounds: what right does the government have, whether state or federal, to define personal relationships as either a "sacrament" (as Bill Frist puts it) or "not a sacrament"? Isn't commonlaw marriage different from religious marriage?

The day Texas says that sodomy on the steps of the Capitol is illegal and the Supreme Court says otherwise, I'll be as up in arms as you are. Public decency statutes have a rational basis, because in the public sphere, our liberties and our responsibilities must be balanced. In the private sphere, however, individual liberties must be sancrosanct, or else bills like Patriot Act II might only be the beginning.

Objectivism attempts to objectively define what a liberty is, and in so doing holds that acting in a way that violates the freedoms of others isn't a liberty. Murder isn't a liberty. Neither is theft. But private consensual adult sex? I can't see what freedom that takes away from anyone.

I think where I'm in pretty strong disagreement with opponents of this ruling is that while they believe that the State can legislate private conduct according to community standards, I do not.

I'm sorry you're depressed about this, Dean. I think I'm just pretty used to conflict on this subject, and this is just another chapter.

Re: voting for Republicans. I could not, in good conscience, vote for a Republican because, as the old saying goes, "The only way to negotiate with a tiger is to be devoured." The republican party has a lot of things going for it -- it's not like I demonize them wholesale, as much as you're seeming to pin that on me -- but until the Republican party platform recognizes privacy rights, it's a no-go. I'll make concessions on almost any point, but not on my citizenship.

I mean, what if the government told you you couldn't get married to your wife? Do you consider that a minor thing, merely because it's so unlikely? Can you really say you'd be willing to accept that possibility?

Well, John, as an Objectivist, you'll be pleased to meet your fellow Objectivist (and fellow atheist) Arnold Harris, who also hangs out here. Except he thinks homosexuality is a disgusting perversion. You two have fun with each other.

But anyway: quite honestly John, I think your ignorance of Republican politics is staggering. Have you ever considered that there might be decent and thoughtful people who have perspectives you haven't even thought of?

As a non-partisan who often (somewhat reluctantly) votes Republican these days (I used to hate them), I can tell you I had to de-program myself from a lot of cant. I really did.

The fact is that amendment's been in the works a long time, and it's NOT primarily religious forces behind its crafting. Although obviously they're on board, the fact is that this would be getting nowhere within the Republican coalition without the libertarian, federalist, and civil-rights wings of that party, which exert considerable power. Despite the fever-dreams of certain left-wing paranoids, religious conservatives make up no more than a quarter or so of the Republican base, and are powerless to affect radical change in these areas without cooperation from the other wings of the party.

Furthermore, you should not kid yourself into thinking that this would have much less chance of passing even if Democrats held majorities of both houses of Congress. In a way I almost hope it passes just so certain people who work under this delusion of the "evil Religious Right Republicans trampling human rights" will have the scales finally fall from their eyes.

I would expect to see a large number of Democrats favor this bill. Rounding up enough Democrats to support it will be nowhere near as difficult as you probably think. Indeed, the best hope for preventing it is probably to get enough Republicans to oppose it--of which there are a good number who would, if they were given proper motivation to do so. (And no, before anyone snears, I don't mean money, although that sometimes helps a little.)

Oh, but you despise the Log Cabin Republicans? You think having a gay voice within the Republican party is a bad idea? If so, then quite honestly you're a fool. If you want to stop this, you really ought to be joining the Log Cabin Republicans, not to mention running as the Republican delegate in your next election, and doing everything you can to help increase the gay power base within the Republican party. Because that is how politics works.

Instead of spitting on the Log Cabin Republicans, you ought to be sending them money and offering to donate your time to them. Because really, John: what does being gay have to do with your position on taxes, on guns, on Affirmative Action, on welfare, or on drug policies? Why does being gay mean you have to think the Kyoto protocol's a wonderful idea? Jesus. Get over this stupid "Republicans are mean to me" cant and realize that for gay people to tie their fate to one political party is sheer lunacy! You shouldn't be laughing at the Log Cabin Republicans John. You should be a Log Cabin Republican.

You can kid yourself into thinking this is about religious fervor if you want. But it's a delusion. This thing wouldn't be possible at all if it weren't for the backlash against the courts that has been growing over the last couple of decades. Because in their "expansive" view of individual rights, they have too often trampled other, equally important, individual rights.

Why rely on convincing people that homosexuality is harmless and that people such as yourself are normal, decent, harmless people who contribute positively to our society--which is what I've always believed, and still do--when you can get the courts to ram acceptance down everyone's throats? I'll tell you why: because a public backlash like this one is inevitable sooner or later.

I'm horrified by this so-called "defense of marriage" movement, in part because I don't agree with it and in part because I feel that self-righteous fools have caused it. It should never have been necessary.

Alas, when you sow the wind, you reap the whirlwind.

I'm very depressed about this, I really am.

Oh, and let me answer this question directly:

I mean, what if the government told you you couldn't get married to your wife? Do you consider that a minor thing, merely because it's so unlikely? Can you really say you'd be willing to accept that possibility?

Yes, I can say that. I really, really can. I accept it and embrace it. Let me tell you why:

If I accept the view that the courts are there to willy-nilly "discover" new rights on my behalf, then I would have to accept all of the following possibilities, and more:

* The courts could "discover" that we all have a right to life and cannot simply be murdered in the womb.

* The courts might "discover" that we all have a right to keep most of our money and that any income tax rate over 1% is a violation of our human rights.

* The courts might "discover" that we have a fundamental right to travel which makes drunk driving laws a violation of our civil rights.

* The courts might "discover" that wife-beating is covered under the right to privacy.

* The courts might "discover" that we all have a fundamental right to vote starting at the age of 6.

* The courts might "discover" that private businesses have a right to free association and can stop hiring gays, blacks, women, or anyone else they want to.

* The courts might "discover" that circumcision of infants is a violation of a child's civil rights and is justification for forcibly removing boys from Jewish homes.

Do you want me to go on? Maybe you like some of those ideas, hate others. But you can't possibly like them all, and I could go on all day thinking of more like them. There are all kinds of individual "rights" that the courts could "discover" on my behalf, under the theory that the 9th amendment means "anything goes if enough Justices think so."

What you're essentially arguing, John, is for power to be enforced by simply electing politicians who will appoint judges to do their bidding. Basically, you're arguing to elect petty tyrants who will say or do whatever is most popular at the moment. I find that far more frightening, far more dangerous, a much bigger threat to my liberty and that of those I love, than the thought that maybe, just maybe, you and I will have to convince people to leave us alone.

I find also find that far more frightening than the tedious process of having to convince people that gay marriage is a good idea.

Because when you ram your values down other people's throats, which is exactly what you are embracing, sooner or later they're going to get tired of it and do something about it. And you might not like the results at all.

Is that "conservative," John? Is that "fundamentalist?" Or is it just maybe possible that there's something to what I'm saying?

There's something to what you're saying if:

1) All values are relative (i.e., privacy and wife-beating), and;
2) it isn't the Supreme Court's job to interpret law against the Constitution.

From my perspective, values against homosexuality have been shoved down my throat almost literally from my birth, and it's been done in many places with the sanction of the government. Gay sex has been illegal. Gay employment has been illegal. Gay housing has been illegal. Gay marriage has been illegal. I'd say that's a far more clear example of having values shoved down one's throat.

Government's don't have rights -- they have powers granted to them by the Constitution, which is a living document. Right now, the Supreme Court says government doesn't have the power to regulate adult consensual behavior. Read the opinion -- they make very specific, very rational distinctions between consensual adult sex and, say, pedophilia or bestiality. As much as you're arguing that they're just pulling this out of their asses based on a popularity contest, I think you're denying the merit to the argument.

Was it the best decision? No, but anti-gay forces practically forced our hands. I'm not willing to wait for future generations or maybe even never. This is too important.

You talk about patience and long fight to convince the majority. It's like Women's Sufferage, or like the Civil Rights movement of the 60's. Both of those ended up with both unpopular Supreme Court decisions and Constitutional amendments. Both issues were bitter and contentious, but things worked out for the better for all Americans.

I conced your argument that the court may have taken too much power, but can you concede my point that privacy and individual rights as pertain to sex are in a completely different class than, say, the age of adulthood? If you think my right to be intimate with my partner is literally up for a popular vote, then I don't even know what to say.

John, Women's suffrage didn't come about due to court fights. It came about because women convinced men that they deserved the right to vote. Enough men agreed with them that the 19th amendment was ratified.

(In fact, here's a side note: I'm really tired of self-righteous feminists talking about how oppressed women are. With only a generation or two of concerted effort, they convinced men to do the right thing. This despite the fact that many women were not on their side. Women didn't just "fight for and win the right to vote." Men decided to give it to them, when they really didn't have to. So anyone who wants to rant to me about "the patriarchy" can stuff it.)

There are all kinds of gay rights statutes on the books now. As I noted earlier, just two decades ago half the states in the union had Sodomy laws, but as of this year we were down to just over a dozen. We also went from the 1970s, when these laws were regularly enforced, to the 1990s, when we saw them steadily being ignored and unenforced except in rare, headline-grabbing instances.

The democratic and social process was working just fine, John.

The Civil Rights Act of 1964 was not passed by the courts. Although the courts have, sadly enough, decided that that very law, which forbade discrimination based on race, creed, color, or national origin, just doesn't count at places like the University of Michigan.

I cannot concede to you that it's the courts that have brought all or even most of the improvements in civil rights over the last few generations. In fact, I assert that the courts have always been a much greater threat to individual liberty, and still are.

Gays have won widespread social acceptance--which is exactly what they do enjoy now--not because judges gave that to them. It's because gay Americans came out of the closet and started asking their fellow Americans for their respect. And many of them made the committment to go about the messy and contentious process of politics to get what they wanted.

Yes, Harvey Milk died because of that. But then again, how far would he have gotten by just demanding that a judge give him what he wanted? He made the committment to the messy business of politics, and won.

I trust that same messy and contentious and frustrating democratic process far more than I'll trust a system whereby we simply ask judges to do what we think is right, based on our personal views of what is moral and what is not. I see things like the 9th amendment as there primarily to protect common law rights we all knew were there, but to tread very, very lightly when it comes to "discovering" new rights. Yes, sometimes they have to do so, especially since times and technologies change. But if they aren't conservative about "discovering" these rights today, radicals tomorrow can work far more mischief on others' behalf that we won't like at all.

What I'm hearing here is that the court essentially got ahead of itself in asserting gay rights and should have allowed the current trend -- that of increasing societal acceptance of gay and lesbian Americans as something other than a cultural disease -- to continue without perceived judicial coercion. The logical conclusion, I'm thinking, is an amendment that in legal terms asserts the rights of individuals to enter into relationships without interference from the government -- which I believe could really happen one day -- as opposed to the currently-proposed Constitutional amendment that would be a serious impediment to that goal.

I have to say, I totally agree with you on that. Yet at the same time, it's with no small amount of satisfaction that I see government -- both State and Federal -- essentially booted from the bedroom.

Which brings us to States' rights. Here's how I see the hierarchy of "powers" in our Constitution:

Federal (some powers) > States (a bunch of other powers) > The People (EVERYTHING ELSE). To quote my own site quoting Objectivist thought, "A private individual may do anything except that which is legally forbidden; a government offical may do nothing except that which is legally permitted." The Supreme Court ruling essentially said, "Neither the States nor the Federal government can legislate private consensual behavior." You can call that tyranny, if you believe the State, acting as the sword of the people, should be able to legislate your life away.

This isn't just about Constitutional interpretation. It's about values, and my values say that the majority may not act as a tyranny against the minority when matters of morality come into question. Have a rational argument based on individual liberties? Let's talk. Have a moral argument based on societal feelings? No discussion.

I'm not afraid of a backlash if it gets us closer to the truth.

Dean,

I would really like to hear what you have to say about the 9th. I understand why you're uncomfortable with it. I can also tell you why some of the things you mentioned in your list could not be "discovered" many violate established rights or violate compelling state interests. But I have yet to hear from anyone who fears the threat of "discovered" rights why they feel it's OK to ignore the ninth or exactly what rights the 9th protects if any.

For instance why is it that the federal government could not compel Augusta National to accept women members? There is no right in the constitution that protects the "freedom to associate". The constitution enumerates the right of freedom to assemble not the freedom of association, which it is silent on. I heard a lot of people claim that Augusta national had the "right" to be exclusive. Personally I agree, but by your reckoning there is no such right. If the state of Georgia wants to pass a law that says there can be no exclusive clubs then I assume you agree with that, no?

I view the 9th amendment as an integral and deeply important part of the Bill of Rights. What ever made you think I was uncomfortable with it? Its primary purpose as to secure those rights which were generally recognized as a part of the Common Law at the time of the 9th amendment's ratification but were not enumerated within the Constitution. I also view it as protecting all reasonable extensions of those common law rights since then.

I view the 9th as every bit as important as the 10th--which I note is far more neglected but every bit as important. Also, so far as I'm concerned, the 10th has not been rendered irrelevant by the Equal Protection clause, even though it's been softened by it.

Could the Federal government pass a law telling Augusta National to include women? I'd have to think hard about that. Frankly, I'd like to hear opposing counsels give oral arguments, and to debate the issue at length. ;-) Offhand I'd say they probably could, but that it would be contentious and I'd rather they didn't if they didn't have to.

We're well beyond the point where there are easy answers to these things, because there's been so much precedent. But I do believe--as do a few of our current Supreme Court Justices--that we are perilously close to a time when the courts have no clear philosophy or guidelines for legal interpretation at all, and are increasingly politicized. I don't think that's a good or healthy thing at all.

Can you characterize what makes, say, gay rights a "political" issue as opposed to a purely constitutional issue? I've heard a lot of arguments here against privacy as a basic human right, in which case I need to ask: whether privacy is currently defined in the Constitution as one of our inalienable rights, should it be? If not, why not? If so, what form would that definition take?

I'm working from the perspective that "life, liberty and the pursuit of happiness" are, both in and of themselves and according to our cultural traditions, inalianble rights. In order to live, we must have values and the freedom to act upon them. To pursue happiness, we must have at least a working definition of what happiness is -- something that can truly be done only at the individual level -- and the freedom to pursue it.

If Texas says gay sex is illegal, then a certain segment of the population is denied the liberty to pursue happiness in that context. Fatal? No. An injury to the quality of one's life? Certainly, to deprive someone the intimacy that is in our nature as humans is cruel, and should only be carried out as a last resort to protect liberty.

If the Supreme Court says that Texas (and the Feds, for that matter) may not prohibit gay sex (here we're assuming adult consensual sex, since children and animals cannot consent), no individual loses his/her liberties. In fact, the liberties of a small group are restored to them.

Whose liberties -- "democratic freedoms", as I've heard them put -- are infringed upon? The liberty of the majority to define certain social mores and to impose them upon the populace. This would be defined as a "collective" liberty. Yet liberty can only be held by individuals (and yes, I know that I'm essentially invalidating Affirmative Action and other "protected group" concepts with this statement).

Someone in Texas says, "I dont' like the fact that, as a member of a majority, I don't get to impose my views about private sex on others. Darn that Supreme Court! Communities no longer get to encode social mores in law with no other rational basis than personal distaste and tradition!"

My response would be: "You are still at liberty to choose your values and live by them. Now another group is also free to do so." Liberty has been increased, not decreased. There is less government, not more: something conservatives seem to think is a good idea.

In the same manner that Dean argues Supreme Court rulings are unnecessary and dangerous, my argument is that laws based on moral tyranny that have no relevance to the protection of individual rights are 1) unnecessary (people can carry on their own traditions without such laws) and 2) dangerous (when social morality is codified into law, people are criminalized by virtue of being unpopular, not because they violate anyone's rights).

The thing is: our Constitution and the couple of centuries of tradition that surround it might not be structured in such a way that it can really address individual rights. If, as some have argued in this thread, some of the Founders had no problem with the idea of States establishing religions (as long as the Feds didn't do it), then looking at our current society (in particular, its interpretation of "Separation of Church and State", the Constitution might be drifting from relevance at a very fundamental level.

Most Americans accept the concept personal privacy and individual liberty almost without question: live and let live, as they say. Yet our Constitution can't protect these values?

It seems like the rift in our society -- one that's been growing steadily for at least fifty years -- might mean that the Constitution needs a good close looking at, closer than the Supreme Court is looking.

Dean,

but you sort of skirt the issue, what is an unenumerated right? Do you have one off the top of your head? If you feel the 9th is integral to our constitution then in what way if not to protect rights that are unenumerated. Also by what process do unenumerated rights become established if not by the assertion of rights by citizens and the upholding of those rights through the courts?

I'm curious: does everyone think all judicial activism is equally evil?

I'm thinking of cases which restrict the government and expand liberty (Roe, Brown vs. BOE, this homosexuality decision) versus cases that expand government power and restrict liberty (Eldred vs. Ashcroft, the affirmative action decisions).

It seems to me that the latter is much more dangerous than the former.

I don't really see what I'm skirting. The Common Law remains the basis of most legal rights and proceedings in the United States. But the business of "discovering" new rights should not be at the top of that pyramid. At least certainly not most of the time.

Do you think that the Court has been "discovering" new rights most of the time lately (i.e., Roe, Brown, Affirmative Action, Lawrence)? How much is "most of the time"?

Do you think that, say, more than half of the country would need to recognize a right before it could be discovered by the court? Three-fourths?

I don't know what the actual legal precedents are for saying, "This is now a right."

I also wanted to comment on something you wrote earlier re: women voting. Yes, men gave them that right, but do you deny the fact that women have been discriminated against and mistreated as women? If I beat you and give you back something I stole from you, are you required to thank me for giving back stolen property while ignoring the beating? What's your rationale here?

"Do you think that, say, more than half of the country would need to recognize a right before it could be discovered by the court? Three-fourths?"

The answer is that a new right exists when three-fourths of the legislatures of the states say so, and not one second before. Art. V, U.S. Const.

Dean,

Then why is it so difficult to answer what should be a simple question, name a right, not enumerated in the constitution that is protected under the 9th? Surly you can think of one since you have already said that you feel it is an important part of the bill of rights. So give us just one. That is my challenge. My suspicion is that you won’t name one because to do so would make my point for me. As for common law how basic is the right to be left alone? Can anything be more common?

My position is that there is no such thing as a "new" individual right. Any rights asserted under the 9th are rights and have always been rights, until vetted in the negative through jurisprudence or direct modification of the constitution.

Once again because it is just that important:

Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

"To deny or disparage…" When you say something is a "made up right" that sounds pretty disparaging to me.

I can't understand why this is so difficult for anyone to accept. The language is not difficult nor is it complex. It is as plain and simple and unambiguous as it can be.

Spoons wrote:

""Do you think that, say, more than half of the country would need to recognize a right before
it could be discovered by the court? Three-fourths?"

The answer is that a new right exists when three-fourths of the legislatures of the states say
so, and not one second before. Art. V, U.S. Const."

So, you appear to be saying that unenumerated rights cannot or should not exist. So, what does Amendment IX mean? Apparently nothing.

Here's a thought experiment. Say some heavily socialist state passes a law that says "This state does not recognize bequests by those decedents who are not members of the Democratic Party. All such estates shall escheat to the state, which shall donate the proceeds to the Socialist People's Party."

There's no racial, sexual, national origin, or other discrimination besides party membership. There's no free speech issue. Anybody can write any will they want. The state just won't honor wills of non-Democrats. There's no other religious freedom, establishment, or even property rights issue. Nothing in the text of the Bill of Rights even mentions wills and bequests, only to living owners of property. So there's no federal Bill of Rights issue.

There's no common law rule abrogated that hasn't already been abrogated by statutes in some states already. Some states already don't entirely follow common law rules in matters of inheritance; some follow Spanish and French civil law rules which are somewhat different from common law rules.

Everyone, except perhaps some "Socialist People's Party" members, would view the law above as manifestly unjust.

Should the SCOTUS find a legal or constitutional penumbra emenating from say Amendment V, to "create a new right", the right to have the state honor all bequests equally regardless of political affiliation of decedent?

Or not?

If not, should people have to flee from state to state as the law catches on, just to avoid their estates going to the Socialist People's Party instead of to their children or designated beneficiaries?

Spoons writes:

The answer is that a new right exists when three-fourths of the legislatures of the states say so, and not one second before. Art. V, U.S. Const.

Your reasonins stems from the idea that the people only have such rights as the Constitution defines. This is balderdash. The Constitution limits the actions of government, not of the individual, as defined in Amendment X (Article the 12th) of the Bill of Rights. Simply because a right has not been defined Constitutionally does not imply that it doesn't exist.

By your reasoning, we would need a Constitutional amendment specifically outlining the right to breathe or eat, since nowhere in the body of the Constitution does it say specifically that an individual has the right to live.

In fact, in the entire text of the original Constitution, the word "life" only appears once.

If a right is inalienable, it may not be voted upon by any legislature or governmental body.

By your reasoning, we would need a Constitutional amendment specifically outlining the right to breathe or eat, since nowhere in the body of the Constitution does it say specifically that an individual has the right to live.

John,

You're setting up a straw man version of Spoons' argument by obscuring the difference between the Constitution allowing us to engage in certain activities and the Constitution prohibiting laws which prevent us from engaging in certain activities. The way our legal system works, everything is permitted except that which is forbidden, and the purpose of judicial review (and the amendment process) is to determine which prohibitions are un-Constitutional.

That said, you cannot on the one hand pose that rights are "inalienable" and also discoverable through judicial activism. I know, I know, you'll say the rights were there all along. But the fact that gays and lesbians DID NOT have rights within the law until very recently should confirm what Hannah Arendt wrote in The Origins of Totalitarianism -- that rights are intimately tied to the traditions of the nation in question. Rights are a kind of culture, and gays and lesbians need to change the culture in order to acquire the rights they desire. To posit, without cultural changes, that we should accept broad, sweeping "new" rights is a variety of nonsense on stilts.

By relying on judges to come along and identify which state laws are unconstitutional on grounds that do not yet have broad cultural support, we have to place the court in the position of Plato's philosopher kings -- and we invite dangerously dictatorial abuses of power in the process. Do we really want to say that our fundamental rights are based on the mood swings of Sandra Day O'Connor? For this reason, I would much rather see rights (and fundamental prohibitions) determined by a democratic supermajority in the country as a whole than by simple majority on the court.

Don't get me wrong -- I oppose the anti-gay marriage amendment, and if it ever left the Congress (which is highly doubtful at this point), I would vote against it on the ballot. I believe that our body of rights should be liberal and arrived at through democratic means. The creation or identification of new rights without democratic support will provoke a backlash in the culture of rights -- and gays and lesbians will lose many of their gains in the process.

I'm going to start out by suggesting that rights are much more than cultural traditions. There is a rational basis for individual rights which the Founding Fathers seemed to understand, e.g., in order to determine their own destinies, men require liberty. Over the course of history, tradition has traditionally [sic] been an enemy to liberty on the basis of class, race and gender and only recently, sexuality. It's true that attitudes did change over time (though never completely), but the legal and judicial changes that took place during that time not only affirmed individual rights, but put into place measures that would explicitly protect them into the future.

It's true: the Supreme Court's decision was shaky. That's why we need a Constitutional amendment. The current proposed amendment (which is far from a backlash: Republicans have been entertaining such an amendment for years and now just happens to be a politically expedient time to act) isn't exactly what I had in mind: more something along the lines of freedom to form private relationships through free association of consenting adults. Yes, that could mean bigamy and incest among adults; but that doesn't mean these individual rights can't even be mentioned. It just means that legislatures will have to make more compelling arguments to limit private relationships than merely, "Most people think it's immoral."

I think it's about time such laws were held to higher legal standards.

It seems that both approaches to ending criminalization of homosexuality (acts, whatever) -- legislative and judicial -- have their own pitfalls. On the judicial side, you run the risk of the judiciary becoming a small tyranny. Yet does the system of checks and balances not provide for situations like these? On the legislative side, you run the risk of the majority unjustly persecuting the minority because of religious-based moral bias. That's happening right now. Either way, there are risks.

Lastly, I reject this notion of, "Don't overplay your hand or you'll face a backlash!" From the gay perspective, we live in an endless backlash, as anti-gay forces continually accuse us of violence, of pedophilia, of gay evangelism, of destroying families, of spreading disease, and of any number of other bogus notions. Anti-gay forces are continually attempting to get us out of schools, out of the government, out of the military (quite successfully, which is an injustice of monumental scale), and out of communities by criminalizing our relationships and, in some states, forcing us to register as sex offenders.

Despite our significant social gains, the current climate is anything but friendly. Don't kid yourselves: this anti-gay marriage amendment was going to happen no matter what was ruled in Lawrence v. Texas. The backlash argument is, I'm afraid, bunk.

Then why is it so difficult to answer what should be a simple question, name a right, not enumerated in the constitution that is protected under the 9th?

I suspect that the problem here, Rick, is that you don't know much about the Common Law, since it defined many rights, and still does. Examples? The right to property, and the right to free association, both of which existed prior to the 9th amendment's passage.

My question is: when do Justices stop defining new rights? Do they have any limits at all? If so, what are they?

Seriously, I'd like an answer to that question. When do Justices get to stop defining new rights for us? And please explain to me why five Justices should not be able to declare that "All men have a right to be free of the odious presence of Sexual Deviants." Are there any limits at all? If so, what are they?

Well, I have an answer to that, but no one on this thread has responded to it, so I'll say it again:

The criteria that the court used in defining consensual adult private sexual behavior (geez I wish there were a shorter term for that) is that it's a liberty which does not, through its exercise, infringe on the liberty of others. If you attempt to say, "I have the right to be free of the odious existence of sexual deviants," you're essentially saying, I have the right to take the rights of others away.

Put more simply: if gay people can have sex, straight people can continue to have sex or to not have sex if they so desire. No liberties are taken away.

If gay people are legally prevented from having sex, then straight people can still have sex or not have sex, but gay people no longer have that choice. A liberty is taken away.

You're essentially arguing that theoretically, people have the right to not be offended. Furthermore, you're saying in the case of private consensual adult sex (geesh, long), that people have the right to not be offended by an idea, since they can't see the behavior they're offended by. This begins to creep into the territory of the 1st Amendment, which court rulings have interpreted to mean that there is no blanket right to never be offended (pornography laws notwithstanding).

John,

I believe that the gay movement faces a "Carver vs. DuBois" moment right now. When right-wingers argue in favor of this behavioral law or the next, liberals are often fond of saying, "you can't legislate morality." And they're exactly right. The same is true for BOTH SIDES of the gay rights debate. Culture will change, and law will catch up to culture (or perhaps lead it just a little), but you cannot expect anything BUT a backlash when you want to put law 10, 20 years ahead of our societal evolution towards acceptance of gays and lesbians.

One thing I don't think you realize is that while it may seem perfectly rational for you (and to a certain extent, myself) to say that gays and lesbians should have all the rights of heterosexuals, a majority of the country (perhaps even a supermajority) disagrees. Accordingly, you cannot pull an abstraction like "gay rights" out of the realm of thought experiments and make it a reality without an evolution of our cultural traditions toward your position. Rights without recognition do not exist, and recognition expands only through tradition.

John,

Regarding your stance about a liberty being taken away only in the case of restrictions on adult private sexual behavior, consider another example.

Some people don't want to live near pig farms. They find them unpleasant to be around from either the smell or the asthetics or whatever, yet by telling a pig farmer that he can't build in farm in a certain place you are inhibiting his personal liberty. At the same time, you can easily argue that you are taking away the liberties of people who don't want to live near pig farms, if you allow pig farms to be built anywhere.

For some people the issue of homosexuality is viewed the same way. Some people don't want it in their community, and they have made laws to establish that.

The constitution protects your right to pursue happiness, but it doesn't specify where. If a community finds something unacceptable should they not be allowed to not have it around them?

That is why there are more state powers for civil issues than federal ones. I don't think it is possible for nearly 300 million people to all agree on what is right or wrong or even on what they find acceptable.

Prostitution is another such issue. Many people and most communities find it unacceptable and have laws against it, though they are argueably infringing on the rights of women to pursure a specific career path. The state of Nevada, however, feels differently and has allowed prostitution there. That is the great thing about the state/federal mixed system. We can disagree on major issues and still all be part of the US. We can live under different laws and be part of the US.

The thing I regret about this decision is that the courts have taken more rights away from the states in doing that, and it has diminished the ability of the US to have that diversity among the states.

Just back from vacation, so apologies for contributing so late to this super thread.

I'm not sure that I detect so great a difference between the two "versions" of what Scalia said. Indeed, the "correct" version has nothing at all to say about gay people per se, and does not exclude the possibility that he could have a lot "against" homosexuals. I rather admire Scalia's scathing dissents (like the savage diatribe in Planned Parenthood v. Casey), but it's a waste of time trying to pretend he is anything other than a statist reactionary on this issue. No doubt that is why Justice Thomas was moved to make his own libertarian dissent which combined an explicit disavowal of personal support for anti-homosexual laws with a brief re-statement of classic judicial restraint.

It is worth reading Scalia's unpleasant dissent in Romer v. Evans (1996) which struck down Coloroado's anti-gay civil rights law, in which he states: "If it is constitutionally permissible for a State to make homosexual conduct criminal, surely it is constitutionally permissible for a State to enact other laws merely disfavoring homosexual conduct. He continued that it was not possible "to conclude that state sponsored discrimination against the class [homosexuals] is invidious. After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal... If it is rational to criminalize the conduct, surely it is rational to deny special favor and protection to those with a self-avowed tendency or desire to engage in the conduct. Indeed, where criminal sanctions are not involved, homosexual "orientation" is an acceptable stand-in for homosexual conduct... Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible - murder, for example, or polygamy, or cruelty to animals - and could exhibit even "animus" toward such conduct. Surely that is the only sort of "animus" at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries-old criminal laws" and ends with an unequivocal treatment of homosexuality and polygamy as equivalent.

The key issue is what Scalia was taking about - in both Romer and the June 2003 case of Lawrence v. Texas he was defending the ruling and the opinion in Bowers v. Hardwick (1986) which is without any doubt one of the very worst by the Court in the second half of the twentieth century -- "very worst" on constitutional and legal grounds, not the substantive content of the decision. Defending Hardwick with the kinds of appeals to judicical rectitude that Scalia makes is disingenuous and disreputable.

>When the constitutional amendment against same->sex marriage comes about, it's my hope that it >will be overruled on similar grounds

No court can "overrule" a constitutional amendment. Not even SCOTUS.

Hey Aaron:

There is an important difference between private sexual behavior and a pig farm: you can smell a pig farm.

There is an important difference between private sexual behavior and prostitution: prostitution is an industry.

If this were a SCOTUS case about two guys getting it on dookie-style in a public park, I'd say uphold the law: there's no right to have sex in front of other people. Holding hands, I'm not so sure, but straight people have never had the right to copulate in public, and I don't see why gay people should, either.

If you don't want to live near a pig farm, it's because you don't like the smell. That's a physical manifestation, like smoke from a fire (something that's regulated in communities) or loud music (ditto). If you don't want to live near private sex of certain kinds, it's because you don't like the idea.

This isn't that tough, kids.

John,

First of all, just to be clear, I am not describing my personal beliefs. I honestly don't care what adults do in private assuming they are not harming someone else.

However, it is not about simply the idea. Perhaps another example would be better. People don't want to live near a crack house.

It's not because they don't like the idea of people smoking crack(ok for soem of them it is), it is about the moral decline they feel it brings to the community(and it's after effects such as higher crime, etc).

Now different people have very different stances on the morality of homesexuality, and I am not saying people are necessarily justified in taking a stance that allowing homosexuality would cause a decline of any sort in their community, but many people do feel that way.

Would their community be harmed? I suppose that depends greatly on the definition of harm, but that is the point. Should not a community be allowed to define what it find acceptable?

Certainly there have to be limits, but how far should those limits go?

Personally, I don't think it should be against the law, but I also don't think that it should be decided by the courts that it cannot be against the law. I think that the communities should be able to decide for themselves.

Why is your "right" to have sex more important than someone else's "right" to live in what he believes is a morally better environment?

Why is your "right" to have sex more important than someone else's "right" to live in what he believes is a morally better environment?

The answer is simple: my rights involve controlling my conduct. Your so-called "right" involves controlling the conduct of others. It's that simple. You're essentially arguing that if someone else wants to live in a place where nobody does anything wrong, they can have that legislated. This creates an environment where popular morality is law.

If you can't see the fact that repeal of sodomy laws is a net *increase* in liberty, where as sodomy laws are a net *decrease* in liberty, then you need to read the First Amendment until something starts to click. Sorry to be so abrasive, but this argument is really, really played out.

Either you believe privacy is a right, or you don't. If you don't, then you think you have the right to impose your morality on other people.

A "moral community" is an idea, not a reality or a behavior. I don't want my rights legislated away because of someone else's Utopian dream.

I'm sure Dean would say that legal sodomy is the same thing -- a Utopian dream -- but better laws that increase liberty than decrease it.

John,

You are choosing to look at only one type of liberty.

Laws against drugs control the conduct of others. And while I do not support federal laws against drugs, I do support state and local rights to enact laws against them. My feelings are much the same about sodomy. The should not be a fedral law against it, but states and local governments should have to right to pass lows reguarding it.

If you don't want your rights legistlated away because of someone else's utopian dream then you have a few options. 1 - fight the battle in the state(or local) congress, where I think the battle belings, or 2 - move to a state(or locality) that fits more to your beliefs, or 3 - ignore the law and relay on privacy, discretion, and lack of enforcement(as many Americans do with laws mandating speed limits and such that they don't agree with). That is why states have that power and not the federal government. The entire country doesn't have to beleive the same thing or agree to the same laws.

While a "moral community" is an idea, a comminity living by a code of behavior is a reality. Communities have many laws some enforced and some not. Some of them I agree with, some of them I think are ludicrious. When I find a ludicrious law I enact one of the 3 options I listed above.

No, I don't agree with your assertion that repealing sodomy laws is a net increase in liberty. It is an increase for some and a decrease for others. Reguardless, my problem is not with repaling the law. I would applaud the sate repealing the law, but I am agaist the courts taking the right to enact the law from the state legislature. That is a power that I don't think the courts should have, and it is a dangerous one to give them.

Think about that power from a different angle for a minute. Suppose that one state decided to legalize homosexual marriage, because enough of the community has become opened up to the idea and believes it is a right and good thing to allow. Well this case has open up the courts to declare that the state cannot do that based on the courts interpretation of what marriage should be. Is that a power that your are more comfortable with appoited judges having or with elected congressmen?

I'm more comfortable with decisions based on Constitutional law (Supreme Court) than on public perceptions of morality (legislatures).

There's a fundamental point we just don't agree on: you believe in "collective" rights, i.e., the right of the many to impose -- under threat of violence -- their morality on the few. I reject the basis of your argument. Only individuals have rights. Groups don't. Governments don't have rights. They have strictly delimited powers, and exist only for the purpose of protecting individual rights.

What you're proposing is to morality as socialism is to money.

Yes, we could either fight it in the legislature, move, or keep doing what we're doing and hope we don't get caught. In case you haven't noticed, that's exactly what gay people have been doing for decades.

It sounds like you value States' rights over human rights. I have different priorities.

Actually no.

I believe in the right of pepole to rule themselves rather than to have their rules dictated to them by the few, which is why I support the rights of the states over the rights of the courts.

In this particular case I think it is right for the sodomy law to have been overturned, but I do not think it is right for the courts to overturn it, that should have been done by the legislation.

Laws are always about imposing will on people, byt setting up the courts with this power, hoever, you are letting the will of the few dictate to the will of the many.

I don't think that we disagree as much as you assume. I am all for individual rights and the protection of them.

The difficulty comes in how you define those rights. I am not comfortable with a judge who has little to answer to the public for(and therefore whom the public has little power over) defining those rights. I think it is better for the legislature(who is more answerable to the public) to define them when such definition is necessary.

I don't want a constitutional amendment defining marriage as being between a man and a woman, becuse then you take that power form the states and largely from the people based on the decisions made right now by the legislature. Yet, it is the courts taking this power to define rights over that has caused the legislature to consider seriously just such an amendment.

No you and I don't disagree on individual rights. You simply are for the enforcement of the few vs the many becuase the right that you care about at the moment is supported only by the few.

While I think that, in this case, the few are right and the many are wrong, I do not like taking power away from many and handing to a few. As I suggested earlier, in my hypothetical about a state with legalized homosexual marriage, how would you feel about this issue if it was a case of the few supporting a case against you, rather than for you?

I can understand this is more difficult and more personal for you than it is for me, as I am not directly affected by such laws and issues and you are. I can understand you seeing this as a victory and wanthign to accelerate anything that promotes the freedom that you desire, but, at the same time, this particular path has a danger of limiting much more freedom in the future either through a whiplash of the current majority through the legislative(in a constitutional amendment of one form or another) or in the judiciary(through the appointment of judges that use this new power of redifinition to limit rights rather than expand them.

I don't want to see either of those things happen.

Dean,

Dean,

Actually you would be surprised at what I know about common law. Despite its long tradition in constitutional jurisprudence I see it an only one of many different, and completely extra constitutional means of judicial interpretation. To focus on any one, to the exclusion of other is as arbitrary as throwing darts at a board. I understand why originalists like to talk about it as if it were a de facto standard but that doesn't make it so.

I find it instances of asking you a direct question you have once again failed to give us an answer. Name one common accepted right that is not enumerated and is protected under the 9th, or simply tell us a right that the 9th was meant to protect. Seems simple yet I have never heard anyone address that question directly except Robert Bork who said it was an inkblot and it doesn't mean anything. In other words he said it was a mistake and doesn't make a good case for that other then to assert it and leave it at that.

To answer your question would take a long post, which I may do and post it. But to give a short answer your question courts do not "make rights". As a citizen under the constitution I assert a right under the 9th. It might be compleat horse crap. I have the right to drug women and have sex with them because the 9th amendment of the constitution protects my right to sexual fulfillment. And I can only be sexually fulfilled if I have sex with unconscious women. The court must decide if this is right or not. Why would the court rule that the right of sex with unconscious women is not a right? Well several reasons not the least of which is that to fulfill the asserted right, women must be denied their right to be secure in their own person. A right that depends on others giving up their rights cannot be a right at all, so it fails that test.

Madison, who was the prime mover behind the 9th's inclusion, said that for a right to be a right and protected under the 9th that it should be a positive or "natural" right that was inherent in human nature and did not depend on society for it's existence. He mentioned the freedom of speech in his notes for a speech advocating the amendments but that one made the cut. I would suggest that a right to privacy not only meets those tests but also meets Hamilton' s rather poetic test that "scared rights of mankind are not to be rummaged from old parchment or musty records. They are written with a sunbeam, in the whole volume of human nature, by the hand of divinity itself and can never be erased by mortal power."

And to put a finer point on your question, the right to be free from the odious presents of sexual deviants might well be a right, but you can't deny other people their rights to sexual deviant behaviour if they are not in your presents. Your might have the right to insist they get a room. Also the right to be free from something is a negative right not a positive one. I could also go on about rights that flow from existing enumerated rights. Privacy is a natural extension of the right to be secure from search and seizure. Freedom of expression is an extension of freedom of speech. Freedom of association is an extension of freedom of assembly. Also you have a whole litany of jurisprudence that narrows the exercising or assertion of rights. Compelling state interest might limit your freedom to express yourself by beating off in the public square, and clear and present danger might limit your right to burning a flag near a gas depot.

Your whole problem with the 9th is that its subjective and it is, but so what, the entire constitution is subject to interpretation. The framers would have found absurd and bizarre most features of current constitutional law as well as our politics, cities, industry and society. The first and most fundamental rule of constitutional interpretation is to construe them according to the plain meaning of the language of the text. An while the 9th may well lend itself to unprincipled judicial decisions the fact is that the record of the jurisprudence of enumerated rights has lead to all kinds of unprincipled decisions so really your argument is a bit of a tempest in a teapot.

So are you going to answer my question now? Name a right, not enumerated in the constitution that is protected under the 9th? Come on I double dog dare you.

I am sure the current administration must be butt chapped over Laurence as it builds on Roe v. Wade.

Weird thing is, I don't think Roe was decided well, and that I would leave specific limits (or not) on abortion to the States.

But I agree with the logic in Laurence as I mentioned in message #60 on the previous thread on this topic.

I also think that Laurence could be used as useful precedent to strike down Federal drug Prohibition, specifically the Schedule I classification, and criminal laws related thereto.

Rick, what on Earth are you talking about? I've answered this already, but here we go again. I hate to be so sarcastic, but I'm going to use big letters just so you don't miss them this time:

THE RIGHT TO PROPERTY

THE RIGHT TO TRAVEL

THE RIGHT TO FREE ASSOCIATION

There are three (count 'em, three!) rights protected by the 9th amendment which existed prior to the passage of the 9th amendment.

Why do you keep saying I haven't answered this question, when I clearly have?

I will answer the rest of your arguments when you acknowledge that I have answered this question. Because I have, you know. Here it is again:

The right to travel

The right to free association

The right to property

None are enumerated in the Constitution, and all should be viewed as protected by the 9th.

Okay? It would also be nice if you'd acknowledge that I did, indeed, answer this already.

There are tons of rights not enumerated in the constitution, and not defined or interpreted by the courts.

The right to procreate, go outside, walk, hunt(or gather), barter, etc.

Most of them are not in the constitution becasue they were considered to basic to mention.

The purpose of the 9th amendment was not to leave it out there for the courts to "find" new rights, but to prevent the courts from using the few rights mentioned in the constitution as justification that the aforementioned type of basic rights didn't exist.

By the way, I do think Robert Bork's got a good point when he says that the 9th amendment has no specific meaning, that it's a philosophical statement more than a specific protection of rights. You can make a very good case for that very position--I just think it's wrong.

The Bork view would be that the 9th was simply added to quell fears in the late 1700s that somehow the enumeration of a Bill Of Rights would allow the courts to abolish anything that the framers forgot to add in.

I think it's wrong, but it's defensible. I think a much more reasonable interpretation is that the 9th protects well-known Common Law rights, such as the right to travel, the right to free association, and the right to property.

One should also note that the process of "discovery of rights" in the Common Law was always a painfully slow process, and not the type to cause sweeping social changes. Which is another problem of judicial overreach, and not one that 9th-amendment expansionists like Rick seem willing to address.

Indeed, Rick's entire position seems to be that all judicial interpretation is arbitrary, period. So it really doesn't matter what the Supreme Court decides, because the 9th amendment gives them license to do anything they want, at any time, based solely on the justification that the 9th amendment lets them do it.

Declare that Jews aren't human and we therefore have a right to liquidate them? Hey, why not? The 9th amendment makes it clear, after all, that rights are really just a matter of whatever 5 Supreme Court Justices say they are.

I find that interpretation frightening and excessive. I'd rather stick with originalists like Thomas, I really would. Else, quite seriously, why shouldn't 5 Justices be able to completely remap everything, based on the 9th amendment? We all have a "right to protection by the state," making it mandatory for all persons above the age of 18 to be impressed into military service. All men have a "right to sex," making it legal to rape any unmarried woman. Hey, why not? The 9th amendment gives us license to do such things at any time, as long as 5 Justices agree.

If there are no standards, then the courts can do anything they want at all, can't they? I'd really like to see Rick answer that. If it's all truly arbitrary, Rick, and the 9th doesn't simply protect certain well-known Common Law rights (like the right to travel, the right to property, and the right to free association), it's really just up to whatever 5 Justices feel like on any given day. Right?

I'd like to at least attempt to dispel the notion that I support the Lawrence v. Texas ruling merely because it's convenient to do so.

It still comes back to individual rights. Lawrence isn't an example of the minority holding some kind of tyranny over the majority. It's about the individual being free from the tyranny of the majority.

Remember: group rights do not exist. We only have the right to live our lives according to our values. When our actions infringe on the rights of others, that's where the law and the courts come in.

Perhaps in the long run, a Constituional amendment that somehow describes in legal language that private consensual behavior may not be infringed upon by the government would be a good thing. It could happen as a result of societal change over time, something that's already taking place.

However, to suggest that the current proposed Constitutional amendment against gay marraige is some sort of backlash bespeaks a profound ignorance of where the battle lines are drawn right now. They were going to do it anyway. Various states have done it, Congress has already done it (Defense of Marriage Act); the amendment was merely the last step. This has been on the gay rights radar literally for years. Bill Frist is merely bringing it up now because it'll gather more buzz that way.

Lawrence v. Texas doesn't completely strip the right of States to legislate on matters of morality. Public behavior is still under the jurisdiction of the state; so even if this ruling has an effect on drug enforcement, it will not have the effect of, by judicial fiat, legalizing all drugs, etc. The State just has to make a much more compelling argument to limit the behavior of individuals based on community standards.

Here's a short, sweet definition of what Lawrence did:

1. Sodomy in private is okay.
2. Sodomy in public is still not okay.

I find laws that represent capricious community standards far more morally relativist than laws that uphold objective standards of individual liberty. No one has the "right" to take the rights of others away. That's why you go to jail if you murder someone, not if you have sex.

John,

Acutally what the decision did was say that the states are not allowed to prevent someone from practicing sodomy in private. And that is my whole problem with it.

I believe that the courts are wrong to take that power away from the states.

It's not about destroying individual rights, not unviersally, it is about recognizing the fact that different people have different definitions of what is acceptable and unacceptable.

One of the strengths of this country is that we recongnize that fact and have established state and local powers in order to address it. It changes the argument. This decision says that it isn't right for people to live apart from the practice of sodomy. That they are not alowed to define a place where they can be separate from it. And that is the key difference.

I'm all for a place saying that sodomy in private is acceptable and allowed, and there are such places. I am completely against, however, the courts saying that it must be acceptable everywhere. And I am completely agaist the courts taking that much power in thier own hands directly away from the states.

While you claim that I am ingorant of where the battle lines are drawn I would aruge that you are missing the point. Of course the idea of such an amendment has been around for a while, of course the fight has been going on. There is a difference. It is now starting to be taken more seriously.

There are always fights and battles for all kinds of things that don't have much chance of winning going on, but to dismiss the current political situation around such legislation now as nothing more than what has already been in place is I think missing what is really going on.

It's not just an issue about gay rights anymore. The court decision has opens a new door and made it into and issue of judicial vs legislative rights. Who gets to define new rights in individuals? I know that I, and many others don't want it to be the justices, because it may seem all well and good when you justices in place that agree with you, it is very different when you get those in place who don't.

Largely I am against taking power from the many and giving to the few, which is what this case has done. It has done so by definie sodomy as a right that is protected by the constitution and therefore untouchable by the States.

The only rationale I can see for the courts to have that power would be through invoking the 9th amendment, and therefore claiming that sodomy is a right that was provided for in the constitution depise there being no explicit mention of it. That is something that I disagree with.

It is not that I wish to prevent sodomy, not only do I not care that it occurs, but I think that any attempt to prevent it would only end in hopeless failure. What I am agaist is the courts taking it upon themselves to add rights to the constitution, which is what I believe they have done. That is a job for the legislature.

And while the consitional amendment against gay marriage was already being proposed by people who wishto see it pass because they are against gays, or because they want to preserve the sanctigy of marriage or whatever, well now they are goign to start being joined by a legislature that is concerned with using the powers it has through constitutional amendment to take back the power that the judiciary has usurped from them. Will it be enough for it to pass? Hopefully not, but if not then what will come next?

I don't believe it is better to live in a society where everyone has to agree. Yes, I do believe that there are certain exceptions which are essentially spelled out in the bill of rights. I don't think that sodomy is one of them. And before you assume that I am against gays, I don't think that adultry or fornication are such rights either. Does that mean that I support laws against them? No. But it does mean that I recognize that some people wish to live apart from such things and I don't think we should force them not to be able to.

I don't want the courts to decide that smoking is a protected right, and that you cannot ban or disallow smoking anywhere. I also don't want them to recognize that living smoke free is a protected right and that you have to ban smoking everywhere. Such decisions should be allowed to be made by the people, not by the judges.

The fact that private sexual behavior is private by definition means that the public at large is free of it. They can't see it. It isn't happening in front of their faces. They don't have to engage in it.

You're arguing that people have the right to pass laws that will ensure that others in their community won't engage in certain distasteful behaviors in private. You're saying that people have the right to take away the freedoms of others essentially for their peace of mind.

Read the First Amendment.

The idea that someone has the right to be free of certain private behaviors because of their moral distaste is ludicrous. Where do you draw that line? Nose-picking? Excessive pulp in orange juice?

This idea that the moral disapproval of the majority of the moment has jurisdiction over the private life of the individual is beyond ludicrous.

This debate has been extremely helpful to me in understanding what the various perspectives are and how they boil down into basic arguments. What I outlined above is about as reductionist as you can get.

I find the majority of prime-time television strongly distasteful. It's shallow and vulgar and it makes me nauseous. If I decided that you didn't have the right to watch prime-time television in our community, even in the privacy of your own home, the only thing stopping me from imposing that on you by force is pure numbers.

There's only one accurate term for it: mob rule.

Dean,

I apologise I had not seen your answer to the question, there are many post in this thread and I clearly missed it. So please accept my apology on that score.

Now that you have given me the answer, for which I thank you, why do you think that Common law is superior to natural law or any other form of interpratation, which would certainly include privacy? You seem to think even common law evolves all be it slowly, must it be static? See the Hamilton quote where he clearly says that, "...scared rights of mankind are not to be rummaged from old parchment or musty records. Would this not be a counter to the argument that common law rights are the only ones that should be considered?

But what is troubling is that you seem to insist that any right can be asserted, the right to liquidate Jews (to name something overly provocitive). I have already stated very clearly that asserted rights can never deny anyone of their individual rights and in cases where they conflict the rights need to be interpreted narrowly until that test is passed. You trot out a laundry list of "rights" that all fail that simple test when I have already stated that you cannot assert a right the denies the rights of others. Free speech does not mean you can libel and slander, the right to bear arms doe not mean you can kill people. This is logical objective and consistant with constitutional jurisprudence.

Insistence of using common law as a final arbiter of rights is just as arbitrary as you accuse me of being. It is extra constitutional and there is little to suggest that the framers would have used a common law test exclusively. As I pointed out both Madison and Hamilton suggested natural rights and I'll go with them over Robert Bork any day of the week. Thomas was not an "Originalist" in any sense of the word, he used novel constitutional interpretations on a number of occasions when he was president, who ever gave you that idea was selling snake oil.

To answer your question no, I don;t feal that my opinion is completely arbitrary, but it's not limited to common law either. People like Madison explicitly rejected "original intent", favoring the understanding of the text by those who ratified the constitution, but he would go further to talk about the idea that the constitution is given its power by the consent of those who are governed. So it is the understanding of the people that is superior to any original understanding. Also when you consider that many opposed a bill of right you have to understand that a large share of the framers were willing to make every right subject to the same ambiguous situation as unenumerated rights you start to see that constitutional jurisprudence was never intended to be some kind of static never changing cannon of law as some suggest it must be. When you say common law takes a long time to change I would suggest that the idea of a right to privacy passes this test as well, it first popped in 1965, that was almost 40 years ago, not exactly the knee jerk, arbitrary pronouncement that you are fearing will bring down the republic.

To recap, here are the things that would naturally limit a court from "creating rights" Willy Nilly. For of all they must be reactive, an individual must bring a case asserting a right. A Justice cannot manufacture a right to fit the case if it was not argued in the case. (Although this has taken place from judges on both sides of the isle.) The right must be an individual right and it cannot be a negative right. You never have a freedom from something. The right must have some basis in natural law, common law or as a logical extension of an enumerated right. A right can never be affirmed that would deny anther individual of their rights, and all rights are subject to a narrowing based on accepted jurisprudence such as clear and present danger and compelling state interest. (as all rights are to some degree)

Now if you want to argue that that is as arbitrary as narrowly focusing on common law that is fair, but understand that we will be arguing about two position that objectively are arbitrary and are completely extra constitutional. Everything I have mentioned can be supported by reading the opinions by those who ratified the constitution and the bill of rights. Clearly you can find citations of ratifiers that disagreed but let's face it, the ratifiers were all over the map so choosing one as superior to the other is arbitrary

John,

Ok the first amendment.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

Where does this mention any form of sexual behavior? For that matter where does it mention privacy?

I am not aruging that people should take away the rights of others based on their peace of mind, but I can certainly see how you could take it that way. What I am arguing for is for people to have the right to rule themselves and determine their own laws.

In this particular case, I think that the law was wrong, but I respect the people's right to have such a law if the majority agree to live under that law. You call that mob rule, but there is another word for it: Democracy.

Now I also recognize that there are certain rights that should be protected from abuse by the state. I believe that those rights were clearly established in the constitution. I do not believe that complete privacy is such a right, because, some things that people do in private can affect the public.Is the public right to classify sodimy as such a case? I think not.

A Democracy is a very resiliant form of government. That is a great thing becuase it prevents the government from changing rapidly and enforcing the will of the few on the many. It's also a bad things because it prevents the government from changing rapidly to correct the mistakes that the many make and impose on the few.

Our nations history is filled with such cases, from the voting rights of blacks and women to the legalization of alcohol. In each of these cases the majority was wrong and had laws imposing their will on the people.

Changing those laws was difficult and it was designed to be so. It was designed that way for one simple reason, this country was founded on the idea that the people should rule themselves. This nation was designed to prevent the will of the minority from being imposed. Is that fair? No. Does it protect everyone? No. Is it better than any alternative? Yes.

Because the alternative is to take power away from the people. The alternative is to say that there are individuals that know better than the public as a whole and that becuase of their knowledge they should be allowed to set the rules. There are words for different levels of that ranging from aristocracy to dictatorship.

There are times where such a form of