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"Indeed, the rage of theorists to make constitutions a vehicle for the conveyance of their own crude, and visionary aphorisms of government, requires to be guarded against with the most unceasing vigilance."
     -- Joseph Story
     Commentaries on the Constitution of the United States
     Book III, § 1857.

Friday, March 28, 2003

The occasion of oral argument (wink wink, nudge nudge) in the case of Lawrence v. Texas prompts yet another gay-rights deluge from Andrew Sullivan. Presumably, somewhere in the midst of the irrelevant historical survey and the moralistic hair-splitting (well, hair-twining, really), there is an argument in there addressed to the constitutionality of Texas's statute; if there is, though, I don't see it.

See various members of The Volokh Conspiracy on the same subject. Jacob Levy, in particular, has himself what must have been a good, solid, satisfying sneer about Texas's attempt to justify its law. Texas, though, does not have to justify its law. It is enough that the people of Texas, through their representatives, have enacted the law. Justifications for law enter the legal picture only where a constitutional right exists against which a law pursuing some public purpose must be balanced; in such situations it is reasonable to inquire into the purpose for the law, and the proper matching of means and ends. Justice Douglas to the contrary notwithstanding, however, the Constitution has nothing to say about sex, and Texas is free to regulate the subject as it sees fit. We are dealing, though, with another "constitutional" principle, one Sullivan and Levy both champion, which may be stated as, "My right to government by principle trumps your right to government by the people."

Here's a challenge to Levy, although it's unlikely he'll ever see it. From what I can see, there are two main prongs (wink wink, nudge nudge) of attack on Texas's anti-sodomy law, one arising (say no more, say no more) from the Fourteenth Amendment, and the other from the Ninth. I should like to know two things. First, if the Fourteenth Amendment is broad enough to cover Lawrence's claim, then what was accomplished by the Fifteenth, Nineteenth, and Twenty-Sixth Amendments? Second, if the Ninth Amendment is broad enough, then what was accomplished by the Fourteenth? As I see it, any part of the Constitution capable of supporting, under general words, the striking down State laws criminalizing homosexuality and homosexual conduct as "invidious discrimination," must already have been broad enough to strike down any other invidious discrimination anyone could name, and yet presumably the authors and ratifiers of the Fourteenth, Fifteenth, Nineteenth, and Twenty-Sixth Amendments did not think they were wasting their time.

-- posted by Clayton 3/28/2003 10:36:00 PM

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