It seems the Court agrees with you, Hank. I’m not arguing this point, however. I believe the major problem with the Court’s opinion that you’re sidestepping is their failure to discuss the fact that until Lawrence preserving morality and public decency was a legitimate state interest, and the Court overturned hundreds of legal precedents without a word regarding Stare Decisis.

It may be conjecture on my part to say that I believe the Court’s nearsightedness would have been laid bare if they had attempted to reconcile the methods they used in Lawrence with their precedent, but I think Justice Scalia makes many convincing points in his dissent regarding the rationale the Court employs, and how it allows for, if not necessitates, the overturning of Roe and Casey.

As an aside, the point regarding majority will and the 2000 presidential election has been raised before, and it is no less off-topic now. Our electoral system purposefully chooses to ignore the will of the majority. The electoral college was created for just that reason. The same can be said to some effect as regard our legislatures and courts. However, I don’t believe it is spelled out as firmly, nor should it be tolerated to the same degree.

Also, as has be stated above, discussion of the ninth amendment is misplaced, as the Court does not reference it once, and your analysis of the Due Process Clause is lacking, as the Due Process Clause does not grant any liberties; it simply states how and when liberties can be taken away.

The issue of ‘consent’ was also dealt with earlier in this discussion as regards beastiality. We don’t require consent of animals to do things to them that would be illegal if done to a human. Thus, there’s no reason to believe that any consent is necessary beside the human who wants to commit the act with the beast. The Lawrence decision creates a wall of privacy surrounding the bedroom that cannot be pierced for reasons of fostering morality. Tell me what other reason their is to prohibit bestiality.

-kd

Also, had the couple not happened to be an interracial couple, would there have been a prosecution? Would there have even been an arrest?

Perhaps the Justices noticed the smell of old-time, rotting crow in the case, and took the opportunity to dispose of a law that was certainly being selectively enforced.

What I’m saying is that I know language can be much more exact than we give it credit for in modern society (and, as an aside with all due respect to present company, I think lawyers are much to blame for the lack of faith we have in language). I mean to critique the theory that every word of the Constitution is open to interpretation and debate. I don’t want to dwell on specific words or phrases.

While I don’t purport to know the truths of every phrase that sprang from the founding father’s pens. I’m absolutely clear on the fact that the authors of the Constitution didn’t mean to include homosexual sodomy under the definition of liberty. I don’t need Jefferson’s notebooks to glean that from history. And, when the Equal Protection clause exists to strike down laws such as the one in Lawrence, there is no need to go into the mire and attempt to reconcile such modern mores with the obviously inconsistent feelings of the past.

I believe the court’s failure to use a fine pen in the Lawrence decision will have undesired results. The court’s Opinion instills the Constitution with much broader language than the framer’s intended, striking down language that had been carefully crafted. I find the Court to be near-sited, an conclusion that is belayed by their lack of discussion of the matter of Stare Decisis. In the span of a decade, promoting morality ceased to be a legitimate state interest, with no explanation from the Court.

I’m sure you feel otherwise, but really only time can tell.

-kd

The same question can be asked about other terms. What, exactly, does “cruel and unusual punishment” mean? Exactly what forms of punishment by the state does this phrase prohibit? Torture? The death penalty for theft? Ditto for “keep and bear arms.” Does “arms” include machine guns? Chemical weapons? Nuclear weapons?

I don’t know how you can seriously claim that the meaning of these words and phrases is clear.

I guess this idea of evaluation and interpretation is one of the many topics upon which I have differing opinion from most of the people who responded on this topic.

In my study of philosophy (specifically Hegel, who I believe invented more words than anyone else in the history of the written word), I’ve come to realize that language is a very specific tool, especially language that has been debated, changed, and ratified by a body as esteemed as the founding fathers.

I believe there are explainations for the beliefs you, and many others here, hold, inherent in modern conceptions of language (like…you know…whatever), which have perverted the previously more rigid nature of words. Today, many believe that every word of the Constitution is open to be interpreted, but most forget that in the majority of cases this has already been done. The historical record is there, we can see the different draft forms that different articles and amendments took, and understand why the text was written the way it was.

This belief, combined with my strict Constitutionalism, leads me to firmly believe that there is no reason to interpret any additional tenets into the fundamental document of our law (which can be equated to changing the rules of the game ex post facto) when there are existing rationale to strike down the law.

-kd

The Constitution is full of words and phrases whose meaning is not self-evident and that need to be interpeted by the court in its evaluation of the constitutionality of laws presented to it. These words and phrases include “speech,” “religion,” “establishment,” “free exercise,” “keep and bear arms,” “cruel and unusual punishment,” “equal protection,” and, yes, “liberty.” Unless you believe that constitutional “liberty” means only freedom from physical confinement, and does not extend to other aspects of a person’s life, you cannot just summarily declare that the liberty right protected by the Constitution does not include private consensual sex. It’s all a matter of interpretation. The fact that sex or sodomy are not explicitly mentioned in the text of the Constitution is not relevant because, as others have pointed out, the 9th Amendment makes it clear that Constitutional protection extends to rights that are not explicitly enumerated in the document.

The Court’s inclusion of private consensual sodomy in the liberty right protected by the Constitution is not some radical new constitutional doctrine; it is the natural extension of a long series of prior decisions that have upheld liberty interest rights in the areas of sex, relationships, reproduction and family life.

Anyway, good breakdown of the story of Onan, but it’s a bit more complex than that. The story is really about the law of God vs. the law of man. Onan’s brother was killed by God for being ‘evil’, and according to the law of his people his entire lineage would be branded such, including any children produced by his wife even after his death, no matter who the genetic father was.

Now, God wanted Onan to take his brother’s widow as his wife, but Onan refused to treat her like a wife, preventing himself from impregnating her so that she would not bear any more ‘evil’ children. So, when God struck Onan dead for ‘spilling his seed’, it had nothing to do with masturbation, as you pointed out, and little to do with ‘potential life’ as some have chosen to interpret it. Infact, the story is about trusting the law of God above and beyond the law of man. If God says have children with this woman, you do it. You don’t care if your people will brand them as ‘evil’, you just do it.

It’s a very tricky moral, especially applied to the case we’re discussing, and one that doesn’t seem to have much credence these days.

I concur more with Justice O’Connor than the majority, unless Texas has a history of breaking in upon hetero couples so engaged and prosecuting them. It doesn’t? Sounds like those written exams that used to be the practice in certain places, with different exams given based upon how “different” (ie, non-Caucasian) you were. “Tyranny of the majority.”

And if the state has no, or insufficient, rationale for a law or regulation or rule or what-have-you it should (as most states have done with sodomy laws) repeal it, and not try to enforce it in the meantime, and most certainly not try to enforce it selectively. The police who made the arrest may have been operating correctly because they are not allowed to pick-and-choose which laws to enforce, but the DA has discretion to refuse to prosecute.

And yes, I believe some mores change with the times. Homosexuality is one example, it used to be in the interest of the state to insist that all who could procreate should do so regardless of their desires, so as to ensure a sufficiency of workers (food, shelter, etc.) and soldiers (self-defence). This is still, unfortunately, a consideration in some places – but Texas?

Consider another: masturbation. when I was a kid in the fifties, it was considered horrible. The justification given was to call it “the sin of Onan”, as he ‘spilled his seed’. But look at the actual case: his “sin” was in not trying to make his brother’s widow pregnant! If someone today raped his sister-in-law and said it was to ensure his dead brother’s line continue, would he win in court?

Don’t get me started on the tax code…there are so many fundamentally unconstitutional parts that I won’t even bother.

As far as ’empowering mobs’ is concerned, I’ve never heard the state legislatures referred to as such, but I guess you’re entitled to your opinion.

Bruce,
From above: “I don’t think I could find a Constitutional problem if a state chose to outlaw contraceptives across-the-board.” I think the State is within it’s rights. I’d like to see gounds…such as the fact that many contraceptives can pose significant health risks, but I’m not sure they’re required by the Constitution.

Just to clarify something for you all, I’m a recent college grad with only two law courses under my belt. I could be legally wrong on any of the above, but then again it’s all just my opinion. I appreciate the debate, and the exercise is what is most important to me.

-kd