Instapundit - I'm still getting a lot of angry email, and as noted below, the decision seems to have angered people on both left and right. It's true, as Eugene Volokh noted on Hugh Hewitt's show last night, that it was only a modest extension of existing law. But I think that existing law has moved, by gradual increments, to a point where it's out of step with the Constitution and with public sentiment about what's just. Sometimes a Supreme Court decision, even one that doesn't make new law, can bring people's attention to a situation and drive efforts to change it.
Some people are comparing this with Dred Scott, but that's a bit over the top. A better analogy might be the Bowers v. Hardwick decision, which didn't make new law, but which led to a sea-change in public attitudes. One difference is that Bowers was consistent with the law going all the way back, while the 20th Century takings doctrines were not. As Joseph Story wrote in 1833:
It seems to be the general opinion, fortified by a strong current of judicial opinion, that since the American revolution no state government can be presumed to possess the transcendental sovereignty to take away vested rights of property; to take the property of A. and transfer it to B. by a mere legislative act. A government can scarcely be deemed to be free, where the rights of property are left solely dependent upon a legislative body, without any restraint.
And yet that's the law now: The rights of property are left solely dependent upon a legislative body, without any restraint. Small wonder that it's inspiring a lot of unhappiness.
FOR THOSE, LIKE ME, WHO DIDN'T REMEMBER:
Bowers v. Hardwick
478 U.S. 186 (1986)
Docket Number: 85-140
Abstract
Decided:
June 30, 1986
Argued:
March 31, 1986
Subjects:
Privacy: Privacy
Facts of the Case
Michael Hardwick was observed by a Georgia police officer while engaging in the act of consensual homosexual sodomy with another adult in the bedroom of his home. After being charged with violating a Georgia statute that criminalized homosexual sodomy, Hardwick challenged the statute's constitutionality in Federal District Court. Following a ruling that Hardwick failed to state a claim, the court dismissed. On appeal, the Court of Appeals reversed and remanded, holding that Georgia's statute was unconstitutional. Georgia's Attorney General, Michael J. Bowers, appealed to the Supreme Court and was granted certiorari.
Question Presented
Does the Constitution confer a fundamental right upon homosexuals to engage in consensual sodomy, thereby invalidating the laws of many states which make such conduct illegal?
Conclusion
No. The divided Court found that there was no constitutional protection for acts of sodomy, and that states could outlaw those practices. Justice Byron White argued that the Court has acted to protect rights not easily identifiable in the Constitution only when those rights are "implicit in the concept of ordered liberty" (Palko v. Connecticut, 1937) or when they are "deeply rooted in the Nation's history and tradition" (Griswold v. Connecticut, 1965). The Court held that the right to commit sodomy did not meet either of these standards. White feared that guaranteeing a right to sodomy would be the product of "judge-made constitutional law" and send the Court down the road of illegitimacy. |
