Semi-Daily Journal

Honestly, is there any more disgusting example of twisting the law to impose your beliefs on others than the Scalias? Thomas and Rhenquist are bad but Scalia is particularly gross. Scalia is the most intellectually dishonest person alive.

I guess Scalia would endorse the public hanging of 12-year-old pickpockets, then.

That's less than two a year for an "offense" that was commonplace. And one where, in many places, the likely offenders were known.

That suggests to me that homosexual sodomy has been generally tolerated. It further suggests another problem with these laws: they can too easily serve as an excuse to prosecute unpopular people, rather than real criminals.

Even Lawrence is an example of this. As Kevin Drum and others have pointed out, the couple involved was interracial. Would neighbors have complained if both had been white? Would they have been arrested?

The Salem witch trials took place while the colonies where still under British rule. Can you point to a witch trial after the ratification of the Constitution of the United States?

While I agree with Courts decision, the manner in which it was derived raises some serious concerns. First, as Scalia mentioned, the historical argument was completely inaccurate. When the Court makes new law, it will often go back to historical references as a basis for ruling. It is a real problem if the current Justices can not accurately state the historical information.

Second, the Court makes reference to the European Human Rights Court rulings. Europe and the US have a fundamental difference of views on many legal rights. Differences specifically covering constitutional rights listed in the Bill of Rights. Do we really want our Supreme Court taking legal queues from the European courts?

I asked a conservative friend if he saw a contradiction between the conservative view of "small government" and the ability of the government to arrest people over their sexual preferences. He saw no contradiction. I just don't understand these people.

Though I am not a legal scholar, rather a physician, I find the legal reasoning of Scalia and Thomas almost always bizarre. I wonder whether Scalia and Thomas have any sense of our history.

Scalia's obviously twisted by his prejudice, and despite what he says, has "something against homosexuals" even if he doesn't object on principle to any group promoting its ideas.

Nonetheless, Thomas' argument is not as bad as all that. He points out that the law itself is stupid and should be overturned-- but that an unjust law is not necessarily unconstitutional.

The argument is this: does it attack a group of people (people who identify themselves as homosexuals) or a practice (homosexual sodomy). The construction of a homosexual identity is relatively recent, so the law may only have become unconstitutional (that is, attacking a group) with the social construction of that group.

Still there are plenty of nominally straight people who engage in homosexual sodomy.

At any rate, I'm still unsure about the justification of the ruling, despite being in agreement with the general point that consenting adults should be able to do what they please with their bodies.

A sounder and more common reasoning would be that the law is unenforcable or is only selectively enforced, which is (as far as I can tell) a Bad Thing and generally can be used to overturn laws.

v.

Justice Antonin Scalia, for all his bluster about first principles and originalism, doesn't hesitate to depart from the plain text of the Constitution when the issue involves property rights (regulatory takings) or presidential elections. Justice Scalia has openly and frequently ridiculed the notion that the Constitution affords each of us a "substantive due process" right of privacy in the sense of personal autonomy, and apparently thinks it is OK for an elected majority to criminalize sexual relations between two consenting adults in the privacy of their own home. When George W. Bush declares that he would appoint more Supreme Court justices like Scalia, every person in this country who professes to love liberty and detest "big government" should take note and oppose Mr. Bush's reelection in 2004. Or else we just may end up with another Supreme Court justice who, like Robert Bork, believes that the Court's 1954 decision in Brown v. Board of Education ending de jure segregation in this country was "unprincipled."

Query to any "strict constructionists" out there: What "other rights" does the Ninth Amendment refer to when it states that the enumeration of rights in the Bill of Rights shall not be used to to disparage or deny "other rights retained by the people"? I had the opportunity to ask Scalia this question once in person, but he refused to give a definitive answer.

Justice Antonin Scalia, for all his bluster about first principles and originalism, doesn't hesitate to depart from the plain text of the Constitution when the issue involves property rights (regulatory takings) or presidential elections. Justice Scalia has openly and frequently ridiculed the notion that the Constitution affords each of us a "substantive due process" right of privacy in the sense of personal autonomy, and apparently thinks it is OK for an elected majority to criminalize sexual relations between two consenting adults in the privacy of their own home. When George W. Bush declares that he would appoint more Supreme Court justices like Scalia, every person in this country who professes to love liberty and detest "big government" should take note and oppose Mr. Bush's reelection in 2004. Or else we just may end up with another Supreme Court justice who, like Robert Bork, believes that the Court's 1954 decision in Brown v. Board of Education ending de jure segregation in this country was "unprincipled."

Query to any "strict constructionists" out there: What "other rights" does the Ninth Amendment refer to when it states that the enumeration of rights in the Bill of Rights shall not be used to to disparage or deny "other rights retained by the people"? I had the opportunity to ask Scalia this question once in person, but he refused to give a definitive answer.

If you had taken a poll of every man who signed the Constitution, you would have found none who favored repealing the laws on the books in every colony against sodomy. Most would have found the question absurd, on the order of repealing laws against murder. Does that mean we should still have laws against sodomy? Not in my view - by I'm not a Texas legislator, and neither are any of the Justices. But I guess when it comes to new agey social policy, mere democracy is not to be trusted...

Jimbo...if you lived here in Texas like I do, you would not want your liberty entrusted to the current Texas Legislature. It is dominated by the Hezbollah wing of the GOP. The GOP Governor is a shallow opportunist who makes George Bush look like a real statesman by comparison. A court willing to expand liberty for everyone should be celebrate, not sneered at.

As a lefty, I am willing to celebrate the Supreme Court's expansion of "liberty". However, I am almost shocked that they decided the case on substantive due process (SDP) grounds. Striking a law based on SDP means, in essence, that the law is a threat to our system of ordered liberty. Call me insensitive, but I don't see how making "sodomy" illegal is a threat to the republic. Call me alarmist, but I believe the PATRIOT Act is definitely a threat to the republic.

Would the Supremes apply SDP to the PATRIOT Act? Not on your life, and it demonstrates how this court has become as lawless and results-oriented as any in history. Not having read the opinion, I will guess that Scalia wrote something along the lines of, "My halfwit colleagues have elevated the unconstitutional and contrived 'right to privacy' to a perch higher than that reserved for rights explicitly stated in the Constitution, like the right to be free from the National Guard busting down your door without a warrant and holding you without bond in a brig without a phone call or lawyer or formal charges so Don Rumsfeld can torture you. And they did it by completely misapplying and manipulating the evidence in the record."

And you know what? He's probably right (though in the same way that a stopped clock is right twice a day). This court does that sort of thing all the time. I would love for the Supremes to misapply SDP, as I think they did in this case, to decide cases "my way". But experience and cynicism tell me they don't and won't. So let's enjoy this one while we can...

Smarter me:

So in other words, the people of Texas are savages who are not entitled to run their own state? Or is the Texas Lege some kind of alien body that was imposed on them against their will?

Does jimbo really hold the childish view of democracy that it is "majority rule"? So if (and you're going to think this example is crazy, I mean, it's just so far out there - but stick with me), say, the people of Texas wanted to make it illegal for a man of African descent to marry a woman of European descent, they are "entitled to run their own state" and the law should stand? Is that _really_ what you think jimbo? A simple "yes" or "no" should suffice.

Jimbo..Abstract appeals to majoritarianism belie any concern for minority rights. Elected representatives cannot always be trusted to do the right thing, especially in the South. Courts have a legitimate role to play. Your concern for legislative supremacy, I surmise, arises more from the result in this case than any general principle.

Can anyone explain “substantive due process?” Where do you find the major premise for this concept (whatever it is) in the US constitution? I have yet to read a coherent explanation of this concept. It appears to have been invented out of whole cloth to justify the holding in Griswold.

Zarkov: The Fifth Amendment prevents the US from taking our life, liberty or property without "due process of law". The Fourteenth Amendment extended that limitation on government action to the states and included an equal protection clause. There are two types of due process, procedural (PDP) and substantive (SDP).

PDP means that the state cannot take anything from you without providing you with some sort of hearing or "procedure". The procedure may be spartan or elaborate, depending on what the state wants to take from you. To take your life, for example, there are numerous "procedural safeguards" like jury trials and appellate review, but to collect a parking fine, you may only have the most rudimentary right to be heard.

The notion of SDP is that there are some things that the state cannot take away from you no matter how much "process" you are given. The Supreme Court first started applying this notion of the due process clause in about 1873 to state laws that attempted to control business and labor. The Supremes, instead of using SDP to prevent the states from enforcing Jim Crow laws, used it to prevent states from doing anything to deprive citizens of their "right" to peddle their labor however they chose. In other words, child labor laws were so antithetical to the Supreme Court's notions of ordered liberty that no amount of "procedure" could save them from the axe. The irony was that the Court used a Reconstruction amendment as a club on behalf of capital rather than on the behalf of the freedmen. This view of SDP did not change until about 1937, when one of the previous conservatives on the Court changed his views on the matter. Since WWII the Court has expanded the notion of SDP from protecting economic liberty to other liberties and has also put more meat on the bones of the equal protection clause.

Of course this Court wants to turn back the clock, but it seems to have come to an agreement on sexual/reproductive rights cases. It also seems that the Court is willing to let us "sodomize" each other as much as we want since it keeps our eyes off the rejuvenation of SDP on behalf of the corporations. The trade: the rich folks let us have our bread and circus and tax breaks and blowjobs and all we have to surrender is all of our money...

Correction: it is the 4th Amendment, not the 5th, which grants due process protection. Most of the time, when you hear lawmakers talking about the "rule of law," they are referring to the same principle at stake in due process: the government cannot act arbitrarily, but must follow certain proceedures and rules when doing its business.

If Justices Scalia, Rehnquist, or Thomas truly believed that they had nothing against homosexuals, or that the law was silly and ungrounded, or that homosexuals should be granted the same basic level of liberty as heterosexuals, they could have, in good conscience, joined Justice O'Conner's concurring opinion and voted to strike down the law. Justice O'Conner did not ground her ruling in due process or a right to privacy, but in equal protection. States have the right to regulage sexual behavior, in her opinion, but they may not regulate such behavior one way for homosexuals and another for heterosexuals. This is a basic, strict interpretation of the equal protection clause made with the very simple premise that "homosexuals are people too." That the minority could not bring itself to this simple conclusion belies their true motives and feelings. The same three justices were in the minority in Romer v. Evans, the ruling which struck down Colorado's vehemently homophobic Amendment 2; again, had they truly believed that homosexuals are equal citizens under the law, they could have found a comfortable and strictly interpreted Equal Protection reasoning in that case.

James finds fault with the Court for citing ECHR rulings. I would point out that the Court was specifically refuting a statement made in Bowers v. Georgia and by the prosecutor for Texas that homosexual sodomy is anathema to Western ideals and morality and that regulating such behavior is a longstanding tradition in the West. In the face of such an accusation, the majority had to refute it with facts drawn from the entire West. Justice Scalia used the same reasoning in coming up with his statistics in favor of upholding the law (statistics which are not very persuasive; the number of prosecutions over history is simply too small to be taken seriously as a major trend in jurisprudence).

Such reasoning is commonplace in the Court's decisions. In an earlier case this term, Justice Ginsberg used European copyright law statistics to justify upholding the Sonny Bono Copyright Term Extension Act. Congress has the right to issue copyrights and patents "for a limited time", and the Court used current European standards in deterimining whether the SBCTEA terms were too long to be considered limited. While I disagreed with that decision, I do not find it inappropriate to consider foreign laws and policies when they are appropriate to the matter at hand.

As for Texas, the true effects of the law have nothing to do with sodomy at all. In fact, sodomy laws in general are and have historically been prosecuted very rarely (as Justice Scalia inadvertently points out via his statistics). The true effect in Texas is to provide a legal basis for discrimination solely on the grounds of sexual orientation. A gay police officer can be summarily fired because he is a presumed criminal under the statute. Fair housing laws can be sidestepped because, again, homosexuals are presumed sexual criminals. Had Matthew Shepard been killed in Texas, his parents would have had a much rougher road to justice because the defense could have argued that Shepard was pressuring his clients to participate in a criminal activity. In many Texas counties, that argument would have had a great deal of weight with jurors. The Lawrence decision will make these policies much harder to defend, and it will make it much more difficult for defense attorneys to proffer a defense of homophobia as a justification for violent crimes.

Every term, some brave Texas lawmaker offers up a bill to repeal the sodomy ban. Up until this term, that honor generally went to Glenn Maxey, Austin's openly gay representative (now retired). I suspect that if a secret ballot were held, the measure to repeal would pass by a comfortable margin. The problem is that a very, very narrow minority of votors are willing to throw a gigantic stink over such "special rights" legislation and that would be politically dangerous for several lawmakers. They don't want the political pressure from the religious extremists, so they purposefully let unjust laws continue on the books until such time as the Courts step in and remedy the situation. Then they can shrug their shoulders, say they disagree with the "activist court," and then casually mention how they aren't really homophobic and three of their friends are gay and blah blah. The fact of the matter is, the Court should never have had to step in to make this decision, nor should the Court have had to step in on the school segregation issue, but pansy lawmakers have been afraid of a sliver of the voting populace and have hedged on controversial issues in order to protect their own political careers. Those cases represent a breakdown of our normally exemplary democratic process, and in those cases it is entirely appropriate for the Court to expend a little political capital, serve as a lightning rod for the radical dissenters, and allow the country to get back on what most of us would consider the right track.

Joel: Not to be pedantic, but the 4th amendment is about searches and seizures. The 5th and 14th mention due process and the 14th creates equal protection. I think you forgot to add a 1 in front of your 4th.

You're right, though, about the EP clause being a better basis for the decision, and the fact that the dissenters can't even join in that is telling. But pinko that I am, I still have a hard time seeing this as a substantive due process case.

Learned Fist, a very nice post, although a trifle long. However, you did not answer my question fully. What in the constitution provides a major premise that “process” refers to anything other than procedure? As day follows night, the word “process” follows “due” in both the fifth and fourteen amendments. According to my copy of Black’s Law Dictionary (Sixth Ed. p 1429) substantive law is: “That part of law which creates defines and regulates rights and duties of parties as opposed to ‘adjective procedural or remedial law’ which prescribes method of enforcing rights or obligating redress for their invasion’… ” Thus it would appear that the term “substantive due process” is an oxymoron.

I think the doublethink doctrine of “substantive due process” precedes 1873. For example in Scott v. Sandford (the famous Dred Scott decision, 1856), Chief Justice Taney held in pertinent part:

“These powers, and others, in relation to rights of person, which it is not necessary here to enumerate, are, in express and positive terms, denied to the General Government; and the rights of private property have been guarded with equal care. Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.”

In other words, according to Taney, the “due process” found in the fifth amendment creates a liberty right to own slaves than cannot be abridged by Congress. Taney does not tell us where in the constitution he found this liberty right. Scott is probably the earliest appearance of the doctrine of “substantive due process” used by the Court in subsequent cases such as Lochner, Griswold and Roe.

So with the decision in Lawrence, two students at (say) Texas Tech have the liberty right to engage in sodomy, but they cannot express unpopular views on race and gender, such as why they disagree with affirmative action. According to the Texas Tech speech code they cannot call an adult a “girl,” but of course a boy can play the part of a girl when he has sex.

Methinks SDP is an old idea from the common law, another way of describing the inalienable rights of the freeborn Englishman. They don't have a constitution spelling it out, but I think that's where we got it.

Correction to my prior post. The Court in Griswold did not rely on SDP; it expressly eschewed that doctrine. Instead, it used the “right of privacy” as found by Justice Douglas who observed “penumbras” in the bill of rights. Of course, “penumbras” is a metaphor. However, a metaphor is a communication aid, not a substitute for proper legal reasoning.