Justice Kennedy is no genius, but in Lawrence v. Texas he did make some interesting conceptual moves:
- He cited and relied on the often-derided “mystery passage” from Planned Parenthood v. Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” As Justice Scalia notes in his dissent, this claim, that the world has no fixed meaning, either proves nothing at all or destroys all jurisprudence.
- He relied on cases from the European Court of Human Rights and a brief from Mary Robinson, former UN High Commisioner for Human Rights, to establish that
“The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent.”
The law of other countries thus becomes our rightful constitutional standard. For more on Lawrence, foreign rulings, and the Robinson brief, see the latest C-FAM Friday Fax.
Put together, what these moves demonstrate is a disposition on the part of the majority to base law not on the particularities of American law and tradition, or on the enduring understandings underlying such things, but on abstract universal concepts that in fact reflect a kind of official nihilism, and on the evolving understandings of transnational elites.
I have no desire to entrust my country’s freedom and well-being to such things. Only tyranny can result from the view that arbitrary will defines the meaning of things, and that we should be ruled by cosmopolitan elites who can, in the nature of things, be responsible to no one but themselves. The tendency to cut the link between American law and America, and anchor it instead in some combination of ideology and universal expert consensus, is real and it must be resisted every step of the way.
[UPDATE FROM CORRESPONDENT: If future Supreme Court decisions involving “gay rights” are based on what the European Court of Human Rights has held in similar cases, the following cases become relevant:
- Lustig-Prean & Beckett v. United Kingdom; Smith & Grady v. United Kingdom; Beck, Copp & Bazeley v. United Kingdom; Perkins & R. v. United Kingdom: investigation into homosexual military personnel’s private sexual conduct and expulsion from military on basis of homosexuality held violative of right to privacy.
- L. & V. v. Austria; S.L. v. Austria: Criminalization of private male homosexual conduct held violative of right against discrimination in light of non-criminalization of sexual conduct by lesbians and heterosexuals of same age.
- DaSilva Mouta v. Portugal: Removal of child from gay father solely on basis of his homosexuality found violative of right against discrimination.
- A.D.T. v. United Kingdom: private, consensual adult male homosexual conduct with multiple partners (i.e., orgy) protected under right to privacy.
There also is abundant ECHR case law on the rights of “transgendered” persons that is more complicated and evolving.
One possible consolation: it appears that under the last case that the Elks in New Hampshire could regain the right to exclude female members simply by announcing that one of the purposes of the club is to engage in homosexual orgies involving all members.]
It seems the Supreme Court
It seems the Supreme Court is a living example of what a monarchial system would be like. A constitutional amendment outlawing sodomy would be a well-deserved rebuke of the Court’s majority. It also seems that a constitutional amendment severely limiting the power of the Court and the terms of its members would be an even better idea. It is disgusting to see these individuals, who are no more moral than ourselves, command such awe and respect. They are not religious leaders leading a voluntary association. You would think one of them would realize they are about as inclusive as a Democratic Party platform-writing meeting. I don’t see any of them resigning to give anyone else a chance.
Maybe the Justices with sense should resign in protest. I suppose the sensible Justices think they are making a difference, but it seems they are mainly condoning bad behavior.
These judges have no creed
These judges have no creed and won’t admit it. They are not just talking and saying the wrong things as some Popes do. They are changing the supposed creed, the Constitution. Imagine the Pope putting a “but” after a clause in the Apostle’s Creed.
If a dictator’s enforcers refuse to enforce, the dictator has no power. The dissenters would strike a heavy blow to the Court’s reputation by resigning and then campaigning against Mr. Bush’s surely liberal nominations to come. If Mr. Bush does not nominate a liberal, he will base his nomination on race. Here again the resigning judges could rebuke Mr. Bush publicly. Mr. Bush might never recover politically from such a rebuke, which is more power than Justice Scalia has now. It seems Justice Scalia would be more effective using his superior intellect and energy off the bench. American soldiers have been dying to protect America. A little resignation is hardly any sacrifice at all; yet much could be gained.
“It seems the Supreme Court
“It seems the Supreme Court is a living example of what a monarchial system would be like.”
I am not sure the current American order under the ruling SCOTUS is a good archetype for monarchy in general. It is true that the SCOTUS is a sort of oligarch that has final say on the law of the land. It is an oligarch charged with upholding liberal principles though, and it cannot explicitly acknowledge its status as oligarch. It isn’t permitted to make substantive judgements but only to formally deduce from principles “out there” in the constitutional sky. It isn’t hereditary with continuity of family interest in the current order. There are other differences as well which make the current SCOTUSatorship seem a rather different model from having a hereditary king and aristocracy with custodial responsibility for the public good through a substantive upholding of the law and tradition.
“They are changing the
“They are changing the supposed creed, the Constitution. Imagine the Pope putting a “but” after a clause in the Apostle’s Creed.”
Isn’t part of the problem that Americans want to treat the U.S. Constitution not as a creed but as their secular scripture in a protestant sola scriptura model? After all the authority is supposed to derive solely and completely from the explicit sacred text, though in fact it is asserted by an interpretive authority that claims it is just telling us the plain meaning of the text. Doesn’t the approach break down for the same reasons as sola scriptura protestantism?
A king and a Council of Nine
A king and a Council of Nine are very different institutions. A king has to take personal responsibility for what he does while in the case of a supreme council they can hide behind each other’s robes.
Also, it seems to me Scalia is best on the court. That way his criticisms of the majority opinion become a permanent part of the body of the law. Whenever someone discusses Lawrence he will have to discuss the dissent as well—that’s the way serious legal discussion of Supreme Court cases is carried on. And if you discuss the two together you have to notice that there are serious problems with the majority view.
Serious comments
Serious comments truly.
There are other factors to consider about a Scalia resignation. He has had his chance as a sitting Justice. He has been sitting and writing dissents for over a decade. In addition, he is not indispensable just as no one else is. Finally, there is a time when getting off the chair and taking action is necessary. There is no telling what would have happened had Boris Yeltsin not gotten up in front of that Soviet tank in Moscow over a decade ago. Perhaps if the Czar’s judges had resigned many years before 1917, Yeltsin’s bravery might have never been needed.
Now seems a good moment for action. The Court has picked bad cases to change the Constitution. There is a vulnerable President and a morally weak majority supporting the President.
Concerning one of the other issues, it is easy for someone that has been brainwashed and has never studied political science to take potshots at monarchial systems, of which there are so very many awful examples. Difficult is to say why democratic principles are better than monarchial principles and to give examples. My comments are as much questions as they are assertions.
I don’t know if Mr. Murgos’
I don’t know if Mr. Murgos’ brainwashing and lack of political science studies puts him in good company, but it does put him in my company!
With apologies to Winston Churchill, liberal democracy is the best form of government except for all the others.
Hmmm. A constitutional
Hmmm. A constitutional prohibition against people fiddling with other people’s private bits, in private? Why not a total ban on masturbation? Dirty thoughts?
Surely privacy is morally sanctioned and legally pragmatic when no one but the fiddlers are involved. If they were doing it in a public park, now that might be different… but it is not as if private fiddling behind four walls is an airborne contagion that can enter the atmosphere and turn us all into manic-fiddlers, after all.
The architecture of power always outlives the intent of its architects. Today, it’s an anti-fiddling law; tomorrow, fiddling with one’s wife absent a written consent-form is a sexcrime. An Occam’s-Razor-principle with regard to passing and revoking laws is wise and just.
It does worry and annoy me that a Supreme Court Justice seems to be taking a “don’t ask don’t tell” interpretation of the Constitution. Yeah, whatever dude. Throw babies into woodchippers – but only in the privacy of your bedroom.
“Surely privacy is morally
“Surely privacy is morally sanctioned and legally pragmatic when no one but the fiddlers are involved.”
A “right to privacy” is a nonsense statement used by liberals to assert that traditionally immoral acts oughtn’t be made illegal. If acts are kept in the closet and private, truly harming nobody but the consenting actors, then the law can’t touch them at all. It is only things that have public consequences that it is possible even in principle to police. The “right of privacy” didn’t allow Griwsold to keep his private vices closed up in his Connecticut household; it allowed him to strut around with his pack of condoms in public, in front of our children. The “right of privacy” isn’t about privacy at all: it is about removing the force of law from traditional moral opprobrium while putting the force of law behind liberal moral opprobrium.
The project afoot is the elimination of traditional public morality entirely. Traditionally we were able to ask, “what would be the consequences of treating X as a legally permissible act”. Now we are only allowed to ask “what are the direct consequences of an individual instance of act X”. That sort of utilitarianism is going to ultimately reap what it sows.
The law on the whole should
The law on the whole should reflect human life. “[F]iddling with other people’s private bits” doesn’t bring out the whole significance of sex in human life. And it doesn’t seem irrational to me for the law to distinguish acts that directly involve someone else from those that do not.