The Discerning Texan

All that is necessary for evil to triumph, is for good men to do nothing.
-- Edmund Burke
Wednesday, May 02, 2007

The Slippery Slope gets Ugly

When the Lawrence vs. Texas Supreme Court sodomy ruling came down in 2003, Antonin Scalia wrote the following in his Dissent (emphasis mine):
State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. See ante, at 11 (noting “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex” (emphasis added)). The impossibility of distinguishing homosexuality from other traditional “morals” offenses is precisely why Bowers rejected the rational-basis challenge. “The law,” it said, “is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.” 478 U.S., at 196.2

What a massive disruption of the current social order, therefore, the overruling of Bowers entails. Not so the overruling of Roe, which would simply have restored the regime that existed for centuries before 1973, in which the permissibility of and restrictions upon abortion were determined legislatively State-by-State. Casey, however, chose to base its stare decisis determination on a different “sort” of reliance. “[P]eople,” it said, “have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.” 505 U.S., at 856. This falsely assumes that the consequence of overruling Roe would have been to make abortion unlawful. It would not; it would merely have permitted the States to do so. Many States would unquestionably have declined to prohibit abortion, and others would not have prohibited it within six months (after which the most significant reliance interests would have expired). Even for persons in States other than these, the choice would not have been between abortion and childbirth, but between abortion nearby and abortion in a neighboring State.

To tell the truth, it does not surprise me, and should surprise no one, that the Court has chosen today to revise the standards of stare decisis set forth in Casey. It has thereby exposed Casey’s extraordinary deference to precedent for the result-oriented expedient that it is.

How interesting then, that Scalia looks to have been prophetic indeed: for today looks like some folks are about to use this extra-Constitutional precedent to now try and legalize incest. And based on the opinions upholding Lawrence, they have a really good shot.

This is what not using the Constitution to interpret the law does: it opens Pandora's box. The purpose of this post is not to pass judgment on homosexuals or argue ab out the sodomy laws; what it is for is to point out that States are authorized to make laws that are not enumerated the Constitution--and if homosexuals had a problem with the Texas law, the Texas legislature was the appropriate place to apply pressure, not to 9 judges acting as dictators for 350 million Americans.

In a Democracy, the people decide. In a totalitarian regime, either one or several (e.g. the Politburo) make decisions for everyone. In the Lawrence vs. Texas ruling, in order to establish a societal norm as "Constitutional" as opposed to"legal under the Constitution", the Supreme Court once again has taken the law out of the hands of the people and placed it into the hands of 9 "Dictators". Scalia nailed it: Lawrence is already resulting in an incest challenge--using this ruling as a basis for its stare decisis contention that this broad brush atrocity of a ruling ought to be interpreted literally. It's a damn shame that the Activist judges on this court are allowing the treatment of fatally flawed precedents like this as the basis for even more reprehensible decisions. But hey: it's just Fathers wanting to molest their own children: who are we to say that is immoral...

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DiscerningTexan, 5/02/2007 08:14:00 PM |