Judicial Tyranny II

Brett Marston, who apparently missed the earlier installment of the Barnett-Bainbridge-Courrèges-Yousefzadeh-Joyner debate because he was off playing with dolls, cites a published article by, of all people, Barnett, truly closing the loop:

Justice Kennedy is employing here what I have called a ‘‘presumption of liberty’’ that requires the government to justify its restriction on liberty, instead of requiring the citizen to establish that the liberty being exercised is somehow ‘‘fundamental.’’ In this way, once an action is deemed to be a proper exercise of liberty (as opposed to license), the burden shifts to the government.

The ‘‘presumption of liberty’’ principle advanced by Barnett here mirrors my own view of the proper limit of state action, so I’d be reasonably happy if that principle were applied.

But here’s the problem: Nothing in the Constitution sets forth that doctrine. In its orginally ratified form of 1789, the presumption was that the several States could do essentially what they wanted with a few concessions to the federal arrangement–mainly ceding sovereignty over interstate commerce and foreign relations, plus a handful of other matters. The ratification of the Bill of Rights in 1791 enumerated several other specific liberties and also explicitly, via Amendments IX and X, reserved other rights to the States and to the people. The passage of other amendments, notably the XIVth, expanded this notion of liberty.

But what in the Constitution denies the people the right to regulate moral conduct as they see fit, so long as it doesn’t violate specific rights? And when did that interpretation take effect? Barnett is talking about the Texas sodomy case in the paragraph above. While I am more in agreement with Justice Kennedy than with the Texas legislature in this instance, it’s rather clear that nothing in the U.S. Constitution had theretofore been thought to enshrine a fundamental right to homosexual sodomy. Why then does the wisdom of Justice Kennedy take precedent over that of the elected representatives of the citizens of Texas?

I posted several times on the topic last June when Lawrence was announced. Most notable:

  • Choice excerpts from Scalia’s withering dissent.
  • A mini-play imagining James Madison, Alexander Hamilton, and Benjamin Franklin sitting around the table in Philadelphia discussing the enshrinement of various sex acts in the Constitution.

    Update: Steve Bainbridge, Steven Taylor, and Chris Lawrence have weighed in.

  • FILED UNDER: Law and the Courts
    James Joyner
    About James Joyner
    James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


    1. Gosh, I hate to say this, ’cause it’ll make it sound like I’m a “living Constitution” kind of gal–which is absolutely untrue. But one thing that has changed is our understanding of homosexuality. Medical science has determined that in most cases, it isn’t a matter of *what you choose to do,* so much as it is a question of *what you are.*

      Is there still a choice about whether you act on this? Sure. But the orientation itself is usually hard-wired. We know this now, and didn’t then.

    2. McGehee says:

      Hmm. Well, I think the Founders believed that if you could choose against a “hard-wired” tendency, THAT was what really mattered, and that its being “hard-wired” was at best only an excuse, not a justification. They had not fallen into the post-modern trap (because, of course, it had not yet been set) of believing that “natural” means “okay.”

    3. mrkmyr says:

      In the case of Brown v. Board the US supreme court declared that “separate is not equal” eventhough soon after the enactment of the 14th amendment blacks were segragated in the south. In upholding their decisions of Roe v. Wade, the supreme court explained that the role of stari decisis is important, but in some cases overruling a decision is appropriate- when the underlying facts of the eariler decision are false make the logic of that decision faulty. So, segragation rested on the false belief that separate could be equal. When the court realized that separate could not be equal, they had to strike down segragation.

      In the same sense private homosexual conduct was always constitutionally protected, but prior to modern understanding, as noted by Little Miss, their reasoning for condemming the conduct was faulty.

      As for Scalia’s view of the Constitution as enshrining the beliefs of the people who wrote it- so we must look to specific traditions at the time of the writting- is of debatable rational. Scalia presents his view as a clean way to apply the constitution when in reality a question can be framed “Do people have the right to homosexual sodomy” or “Do people have the right to private sexual conduct” He fails to see that the laws/traditions in 1850 are a product of the people’s factual understandings of the time. As we understand biology, psychology, or other subjects better, our laws, and what the constitution protects will appear to change.