Matt Barr at New World Man disagrees with me on the Scalia issue for two reasons—one of which is good, but not convincing, and the other of which is frivolous. The good reason is that Justice Scalia, in his Lawrence dissent, was not saying that he favored laws regulating private, adult, consensual sexual activity—he was just saying the Constitution doesn’t forbid such laws. He could very well believe such laws are wrong. Therefore, Mr. Barr contends, it’s not fair to content that Scalia deserves to be treated the same way that the people of Texas treated John Geddes Lawrence.
The problem with this argument is that Justice Scalia explicitly holds that the promotion of the majority’s sexual morality is a legitimate state interest under the Constitution. The Constitution, of course, says no such thing; it is silent on the issue of whether the state may interfere with the liberty to engage in private, adult, consensual sexual activity. And since it is silent, we may not deny or disparage the existence of such a right. Further, since that right may not be denied and disparaged, it is among the privileges or immunities of citizens with which no state may interfere under the Fourteenth Amendment. (An argument I went into a long time ago, and from which, as I recall, Mr. Courreges emerged barely breathing.)
What is a legitimate state interest? We answer this question by reference to political philosophy. Justice Scalia’s political philosophy tells him that private, adult, consensual sexual activity is a matter of public control and therefore of public debate, and, given that premise, it would be entirely permissible to ask Justice Scalia this question, even if, for some policy reasons, he believes that laws against private, adult, consensual sexual activity should not be passed. To make an analogy, suppose a man believes the state may impose minimum wages—but just thinks it shouldn’t. It would be entirely proper for a political opponent of this man to say “how much do you earn?” The only way you can contend that the sodomy question was improper is if you believe in the principle that such matters are none of the public’s business—and if you believe that, then you believe what Justice Scalia spent much time deriding in his Lawrence dissent.
Mr. Barr’s frivolous argument is that “We defend the dignity and privacy of individuals against old, outdated, wrongheaded, liberty-impugning state laws by persuasion and democratic change.” That is not true. The Fourteenth Amendment says that no state shall make or enforce any law that shall violate certain rights, even if the majority of that state has been persuaded and voted democratically to violate those rights. If you are called upon to persuade people to respect your rights, then they are not rights at all—merely permissions. The Constitution puts limits on democracy...thank god.
Finally, Mr. Barr says that there are “other source[s] of protection for our rights than the federal constitution,” such as “state laws or constitutions...mores...ethics...values...[and] religion.” Indeed, that is so. Tocqueville told us long ago that one of the most important things keeping the limits on democracy in place was the existence of mores: “while the law allows the American people to do everything, there are things which religion prevents them from imagining and forbids them to dare.” Democracy in America 292 (G. Lawrence trans, J.P. Mayer ed. 1969). In years past, it was understood, at least by many, that the privacy of your home was sacrosanct; as the Missouri Supreme Court noted in 1873:
There is no doubt of the power of the Legislature...to make police regulations designed to promote the health and morals of the community. Laws to prohibit or regulate gaming, sales of intoxicating liquors, houses of prostitution, and thus indirectly advance the morals and good order of society, are beyond question. But, as a general rule, Legislatures do not attempt to regulate the morals or habits of individual citizens. When a positive breach of law is reached...then the criminal law may interfere, but not till then. So long as the power and right of locomotion is conceded, and a citizen has the right of selecting his associates, it is difficult to see how the Legislature can interfere, upon the mere ground of correcting the morals of the person concerned. An association with thieves, or with persons suspected to be thieves, or having the reputation of being thieves, may be very injurious to the person seeking such society, but it is not the business of the Legislature to keep guard over individual morality.
City of St. Louis v. Fitz, 53 Mo. 582 (1873)
In more recent times, however, the Progressive—and now conservative—notion arose that government exists to cure us of immorality as well as of poverty. The old mores have degraded, and today, the mores do not tell conservatives where to stop; there is nothing that the people are forbidden to dare: they even dare to send armed agents of the state into our bedrooms to police our sexual conduct there. That is what is shocking. That is the outrage. That is the impropriety. But instead, we are all worked up about Justice Scalia’s feelings. Fine—he has feelings, and it is improper to intrude on his privacy. But it is likewise improper—and unconstitutional—for the people of a state to intrude on the privacy of John Geddes Lawrence, and Matt Barr, and of every other man and woman.
Update: Matt Barr resorts to the old argument, that I’m just reading my preferences into the Constitution. I’ve dealt with this argument many times before. The fact is, the Constitution says that the enumeration of certain rights does not mean that those are the only rights, and that the people retain their rights even when they aren’t enumerated. And the Fourteenth—not the Ninth—then prohibits the states from depriving any citizen of his privileges or immunities, or of depriving anyone of his liberty without due process of law. It is not the Ninth, but the Fourteenth Amendment that I read “as an affirmative protection of unenumerated rights.” There is no rational way to read the Amendment otherwise.
The question is not whether bad ideas are unconstitutional—obviously not all of them are. The question is whether a state law deprives a person of the privileges or immunities of citizenship or of liberty without due process of law. What is liberty? What are the privileges or immunities of citizenship? They are the things listed in the Bill of Rights—and more! The Ninth Amendment stands for the “and more” part. It says that just because the Constitution doesn’t say you have the right to run barefoot through sprinklers, or hunt ducks, does not mean that you lack that right, or that the state may forbid it for no good reason. (Why doesn’t the Fourteenth Amendment protect the liberty to hunt ducks? Absolutely it does!)
My record of defending the constitutionality of laws I strongly disagree with is strong enough that I need not worry about Mr. Barr’s contention that I am altering the Constitution to suit my will. Rather, it is conservatives who are ignoring the Constitution—and, as I said, ignoring America’s social mores—to open private bedrooms for us all to see. If they are doing so, then I’m saying that turnabout is fair play.
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