October 5, 2011  ·  Lessig  · Reblogged from  Huffington Post

It is way too early, and perhaps even a bit crazy, to see an American Spring in the growing protests on Wall Street. Yet. But there is no doubt that if there is one place in America that these protests should begin, it is there, and it is now.

Writers by the dozen have lamented the influence that Wall Street exercised over Washington throughout the 1990s, leading up to the great collapse of 2008. A multi-billion dollar lobbying campaign, tied to hundreds of millions in campaign contributions, got Washington to erase its regulations and withdraw its regulators. One statistic summarizes it all: in 1980, close to 100 percent of the financial instruments traded in the market were subject to New Deal exchange-based regulations; by 2008, 90 percent were exempted from those regulations, effectively free of any regulatory oversight.

But there is nothing at all surprising in that story. The spirit of the times was deregulation. The ideology of Democrats and Republicans alike was regulatory retreat. No one should be surprised, however much we should lament, that politicians did what the zeitgeist said: go home — especially when they were given first class tickets for the ride.

What is surprising — indeed, terrifying, given what it says about this democracy — is what happened after the collapse. That even after the worst financial crises in 80 years, and even after the lions share of responsibility for that crisis had been linked to finance laissez faire, and even after the dean of finance laissez faire, the great Alan Greenspan, expressly confessed that it was wrong, and that he “made a mistake,” nothing changed. A president elected with the spirit of Louis Brandeis (“[We have to stop] Wall Street from taking enormous risks with ‘other people’s money’”), who promised to “take up that fight” “to change the way Washington works,” (“for far too long, through both Democratic and Republican administrations, Washington has allowed Wall Street to use lobbyists and campaign contributions to rig the system and get its way, no matter what it costs ordinary Americans”), and who was handed a crisis (read: opportunity) and a supermajority in Congress to make real change, did nothing about this root to our financial collapse. The “financial reform bill” is the reason the English language invented the scare quote: As every financial analyst not dependent upon the corruption that is Wall Street has screamed since the bill was passed, financial reform changed nothing. We are more at risk of a major financial collapse today than we were a decade ago. And the absolutely obscene bonuses of an industry that pays twice its pretax profits in salaries are even more secure today.

How could this possibly be? Never in the history of this nation have the agents of financial collapse so effectively avoided a regulatory response to that collapse. How is it that now they have not only avoided reform, but have effectively cemented their Ponzi scheme into the core of American law?

The protesters #occupy(ing)WallSt are looking for answers to that question. They should look no further than the dollar bills that they are taping to their mouths. The root to this pathology is not hard to see. The cure is not hard to imagine. The difficult task — and at times, it seems, impossibly difficult task — is to imagine how that cure might be brought about.

The arrest of hundreds of tired and unwashed kids, denied the freedom of a bullhorn, and the right to protest on public streets, may well be the first real green-shoots of this, the American spring. And if nurtured right, it could well begin real change.

In my book, Republic, Lost: How Money Corrupts Congress–and a Plan to Stop It– published today by Twelve, I spend hundreds of pages trying to make clear what should be obvious to every single protester shivering in a Wall Street doorway. But the whole point of the book could be captured in the single quote that I stole from Thoreau right at a start: “there are a thousand hacking at the branches of evil, to one who is striking at the root.”

These protesters should see that they are that one striking at the root. They should understand that our system has been corrupted by money — even if the Supreme Court refuses to call it “corruption,” and even if political scientists are unsure about whether their regressions can show it. And they should recognize that until this root is hacked, the weeds of this corruption will continue to destroy this democracy, and this nation.

Now conservatives are eager to insist that our framers didn’t give us a “democracy.” They gave us, they say, “a Republic.” And so they did. A Republic — by which the framers meant, as Federalist 10 makes clear, a “representative democracy.” By which the framers expected, as Federalist 52 makes clear, a Congress “dependent upon the People alone.”

But ours is not a Congress “dependent upon the People alone” — or even mainly. It has instead allowed a different dependency to grow within its midst: a dependency upon the Funders of its campaigns. And so great is that different and conflicting dependency that even the worst financial crisis in three generations can’t break their obsession with the fix. Neither party dares to cross Wall Street, since both parties know they could not win control of Congress or the White House without Wall Street’s money. So they feed the addiction, and ignore the real work that they should be doing.

#OccupyWallSt needs to teach America this lesson. It needs to speak to the wide range of citizens who believe it. You don’t have to be a Marxist to rally against the corruption that is our Congress. You don’t have to be Dr. Pangloss to believe that people who don’t share common ends might nonetheless have a common enemy.

This corruption is our common enemy. So let this protest first #OccupyWallSt, and then #OccupyKSt. And then let the anger and outrage that it has made clear lead many more Americans to #OccupyMainSt, and reclaim this republic.

For if done right, this movement just may have that potential. What the protesters are saying is true: Wall Street’s money has corrupted this democracy. What they are demanding is right: An end to that corruption. And as Flickr feeds and tweets awaken a slumbering giant, the People, the justice in this, yet another American revolution, could well become overwhelming, and finally have an effect.

  • Karl

    With these recent decisions I fear that we are sinking into a political quagmire: a tyranny of the minority.

    “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.”

    Opinion of the Court in Lawrence v. Texas (2003), Justice Kennedy quoting Justice Stevens dissenting in Bowers v. Hardwick (1986).

    I did not agree with the letter, spirit, or intent of the Texas statute forbidding homosexual sodomy, in fact I almost wholeheartedly agree with Justice O’Conner’s brief concurring in the judgement against the law (invalidating on grounds of Equal Protection), but what is implied in the machination by which the majority reached their opinion, saying that the ruling majority in a state have no right to exercise their beliefs through law, should chill anyone who believes in democracy to the bone. Carried to its inevitable end, the resulting system will be one in which any and all viewpoints on any and all ‘moral’ questions must be given ground. Legalized beastiality is coming to a state near you.


    “It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. … Social preceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is best … But persuading one’s fellow citizen in one thing, and imposing one’s views in absence of democratic majority will is something else. … What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new “constitutional right” by a court that is impatient of democratic change. … [I]t is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best.”

    Scalia, J. dissenting in Lawrence v. Texas, (2003)

  • Bruce M.

    Since when is an unconstitutional law acceptable simply because it was enacted through the “democratic process”? If a law is enacted in America, it is, ispo facto, enacted through the “democratic process” (at least in theory, as we all know laws can be purchased). That doesn’t make it constitutional.

    In America, the ruling majority (even a 99.999% one) doesn’t have the right to violate the minority’s rights. If America were a “majority rules” country, we wouldn’t need the Constitution–only ballots. I’d recommend reading Federalist No. 10.

    This is exactly what Rush L. was blabbering about the other day. “The court has thwarted the will of the majority.” [arguing that even if the statute was ridiculous and irrational, it represented the will of the people thus the Court had a lot of nerve to throw it out. Damn the sodomite minority.] Whenever a statute is thrown out by a court, the “will of the majority” is thwarted, if you really believe every statute truly represents the will of the majority subject to it.

    Again, I’d direct you to Federalist No. 10. And keep in mind, most people (far greater than 50%) are stupid, thus the majority is, moreso than not, wrong. That’s why we need judicial review. An majority unchecked is a dangerous thing.

    Just out of curiosity, do you think the Sonny Bono Act or the DMCA represent the will of the people? Do you think they were enacted through the democratic process? If the SCOTUS had found the Sonny Bono Act unconstitutional in Eldred, would it have been “tyranny of the minority”?

  • Jon

    If I’m remembering my Constiutional History class correctly, the concept of judicial review is to avoid a “tyranny of the majority”. I believe James Madison was its foremost proponent. In the case of gay marriage/sex, just because most people don’t like it doesn’t make it wrong.

    What takes place between two consenting adults in the privacy of their own bedroom is not something the State has the power to regulate.

  • Jonathan

    Bruce–I completely agree. I’m concerned though that Bush might get to appoint conservative activist judges who would reverse many recent decisions due to their personal moral convictions (as opposed to sound Constitutional reasoning). The fact that many of their recent important decisions have been 5-4 says a lot, and a couple new conservatives could completely change the Court’s course.

  • http://www.strategiczero.com Matt

    Rush didn’t have a problem when the SCOTUS “thwarted the will of the majority” in the 2000 Presidential election, now did he? *zing*

    On to more relevant things – the by now oft repeated “legalized bestiality” retort is just so much hyperbole. The Court has given equal protection to what TWO CONSENTING ADULTS choose to do in their homes, regardless of sexual preference. Farmer Bob and the pig is still illegal because an animal can not consent. Do you also believe that the Court is legalizing rape with this decision? That’s where the “legalized bestiality” line of logic ends up eventually. It’s just plain over-reactionary.

  • Josh

    Alright. I’ve been forced to break out a definition.

    Main Entry: tyr�an�ny
    Pronunciation: ‘tir-&-nE
    Function: noun
    Inflected Form(s): plural -nies
    Etymology: Middle English tyrannie, from Middle French, from Medieval Latin tyrannia, from Latin tyrannus tyrant
    Date: 14th century
    1 : oppressive power ; especially : oppressive power exerted by government
    2 a : a government in which absolute power is vested in a single ruler; especially : one characteristic of an ancient Greek city-state b : the office, authority, and administration of a tyrant
    3 : a rigorous condition imposed by some outside agency or force

    So, what do we have here?

    1) Oppressive Power – It’s just crazy to think that anyone is being oppressed by this decision so that must not be what kd meant.

    Let’s try 2) Absolute power vested in a single ruler – nope. The only argument that can be attempted through this definition is saying the Supreme Court has somehow overstepped its bounds. That’s easy, though. We have those crazy checks and balances. Don’t like it? Support an amendment

    Maybe 3) Rigorous condition imposed by outside agency? -
    a) it’s hard to see how this can be considered a rigourous condition
    b) who exactly is it imposed on?
    c) where’s the outside agancy?

    So, I guess I have to ask the question… “what the hell are you talking about, kd?”

    You may or may not (call me crazy but I’m guessing you don’t) agree with the gay lifestyle. That’s cool. Do what you like. If the Federal Government was coming in and taking away a right other than the right of taking away others rights I’d be 100% behind you. But to start claiming “tyranny” is just ridiculous. The only tyranny (I’ll use definition one, by the way) that I see is the tyranny of the original law. “Y’all gay people can’t be doin’ that cuz we don’t like it”

  • Ruidh

    You have to give some of the credit/blame in this decision to the poor sap from Texas who stood up to defend the law in oral argument. See http://www.supremecourtus.gov/oral_arguments/argument_transcripts/02-102.pdf The Justices repeated asked him for a rational basis other than (the majority think it’s immoral) after he accepted the premise that morality plus a rational basis is the standard here. He could not offer a rational basis after being repeatedly invited to do so.

  • Karl

    OKay, I’ve taken a lot of flack for my statement, but I’ve yet to see anyone point to where the constitution validates the decision.

    It’s not unconstitutional because the supreme court said so…that would make them all hypocrites, the logic validates the very idea of the majority not being able to impose their will (in this case the majority of the court upon the minority thereof).

    To Bruce, there is no right to homosexual sodomoy granted by the Due Process Clause of the 14th ammendment, and despite the fact that they overturned Bowers, the Opinion of the Court did not have the guts to make such a claim. There is, however, a right not to have laws imposed upon you that are not imposed upon everyone (or atleast those in a similar position, whatever that means), and that is the Equal Protection arguement, which Justice O’Connor based her decision on, and which I said I agree with.

    To distinguish my opinion here from those I’ve expressed re: Eldred. The Constitution is quite explicit in regard to copyright.

    So, put aside your desire to call me a bigot, and understand that I am nothing more than a Constitutionalist. I believe in the letter of the law in this country, and particularly judicial restraint as it applies to overruling the will of a majority interest that is wholly within it’s right.


    Aside to Matt: There is no question of consent in the case of an animal. Do we call it murder when a pig squirms away from the knife? No. I don’t think you’ve thought through your argument.

  • Karl


    I thought your post merited it’s own reply. Oppressive power is certainly looming in many of the Supreme Court’s latest decisions. If you read my reply again, it is clear that I am not talking about this one alone, but mostly the decisions of the past two weeks, 1000 pages+ of them. I also am clear to say that we are in the process of ‘sinking’ to this tyranny…not that we’ve necessarily reached bottom or any noticable effects.

    In a quest for ‘tolerance’ and ‘diversity of viewpoints’ &c, the Court has decided that the majority no longer have a right to protect themselves from experience with conduct that they deem deviant. For one moment, forget about whether their belief is right, and realize that this is the minority will being forced upon the majority. Now, consider that the court fails to explicitly state that the Constitution grants a right to homosexual sodomy, and you’ll see why I’m upset. If the court had the guts to make that conclusion, then I think I would have been much more receptive of the Opinion, but as it is, they’ve given free reign to anyone exercising any opinion so long as it is in the ‘moral’ realm, despite the limitations of law, whether or not the conduct is protected by the Constitution.

    I think the quote from Justice Scalia summed up my opinon best. Personally, I have no problem with pretty much any life styles, but I do not believe others should be forced to accept my opion outside the process of democracy.

    Justice Thomas’s decent in the AA case also makes a fire-breathing retort against the ideal of ‘diversity’…the logic of which in many ways can be applied to Lawrence.


  • Karl

    Also, I apologize for typographical/grammatical errors. I thought I should nip this in the bud before running off to work and haven’t taken the time to properly spell check.


  • Dana Powers

    Certainly, Karl, you aren’t implying that what two consenting adults do in the privacy of their own home somehow impacts a third person’s ‘right to protect themselves from experience with conduct that they deem deviant’ ? How do you experience conduct that is done behind closed doors?

    Amendment IX to the US Constitution:
    ‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.’

    How can you argue that the Supreme Court has overstepped the bounds of the Constitution? It seems to me that they are quite adamantly establishing that the anti-sodomy laws violate rights retained by the people, which are not enumerated.

    I completely agree with the majority opinion: this decision is about Liberty, not Equality.

  • Nick

    “In a quest for �tolerance� and �diversity of viewpoints� &c, the Court has decided that the majority no longer have a right to protect themselves from experience with conduct that they deem deviant.”

    I’m puzzled at this sentence. How is anyone else being affected by what two consenting adults do in the privacy of their home? “Protect themselves” from what? Is the very idea that “deviance” exists somewhere in the world so much of an affront that it must be stamped out?

    I truly do not understand why people take this ruling as something being imposed on the rest of society. It appears to me that the justices are saying that the constitution does not allow the local law to impose their own standards of morality upon the minority — not the minority imposing their will on the majority. This is more of a case of the majority not being allowed to force personal standards of morality on the minority, not the reverse.

  • Karl


    Ofcourse there is an argument to be made that what two consenting adults do in their own home affects many people, by association, but that is not the question here. I believe the law should have been struck down, I just object to the manner that court did it in.

    What I object to is the Court essentially creating a new class of right protected by the Constitution but not telling us where, how, or why it was created. Your cite of the 9th Amendment would be appropriate if the Court had bothered to discuss the 9th Amendment at all, but it didn’t.

    The Due Process Clause, which they chose to invoke, does not bestow any liberty upon the people, it states how and when the government may revoke liberties. The Court would have been in much firmer ground, in my opinion if it would have relied on the 9th Amendment, or better yet, Equal Protection, for invalidating the law.


  • Karl


    I believe the problem is because instead of focusing on what the State couldn’t do, the Court decided to fill their Opinion with dicta that expounds upon all-powerful ‘liberty’ and ‘fundamental rights’ which many people take issue with, as they cannot see the Constitutional basis.


  • lj

    You said: “It was an extraordinary moment that said more about the importance of this decision than any commentary ever could.”

    Indeed it did. But it’s just a step towards equality, and I’m appalled at the way that it’s galvinizing the right. Frisk’s comments are so incredibly bigoted that I can’t understand how he wasn’t challenged on them immediately:

    “I have this fear that this zone of privacy that we all want protected in our own homes is gradually � or I�m concerned about the potential for it gradually being encroached upon, where criminal activity within the home would in some way be condoned,� Frist told ABC�s �This Week.�


    So being gay (or rather, making love to your gay partner) is criminal activity as far as Frist is concerned. And it threatens the institution of heterosexual marriage. Bah!

  • Karl

    It sounds to me like Frist’s comments aren’t directed at the specifics of this case at all…I’d say he’s talking about things such as illegal drug use (of course in which only consenting adults are present) which will most likely be the next benefactors of the ‘life of privacy jurisprudence’.


  • Dana


    I believe the logic regarding the Due Process protection is as follows:

    (a) Does the behavior in question fall into one of the categories established in Amendment V: life, liberty, or property? The Court says ‘yes’; same-sex sodomy within the confines of one’s home is an expression of liberty.

    (b) Is there a rational reason for limiting this behavior, grounded in law? The Court says ‘no’; simply because the majority believes an expression of Liberty is immoral, does not provide enough justification for limiting that behavior.

    The Court is not saying that same-sex sodomy is an inalienable right, it is simply saying that the government cannot curtail that liberty without some rational (i.e. non-moral) reason for doing so. Law’s purpose is to arbitrate competing claims of ‘rights’. Show me (and the Court) what right of the majority is infringed upon, and perhaps opinions will change.

    As for the assertion that killing a pig is not murder, I ask you to put the above guidelines to work. Society condones (or at least allows) the killing of animals for rational reasons: environmental (overpopulation) and survival (feeding a family) are perhaps the most widely used. Certainly society does not condone widespread random killing of pigs, but for rational reasons it can be necessary and justified.

    And to the final point, Equal Protection. I do not completely agree with this argument. Same-sex anti-sodomy laws seem to apply to all people in exactly the same way: no person may engage in that behavior, be they heterosexual, homosexual or otherwise. Simply because some people prefer that behavior, or engage in that behavior more frequently than the majority, does not indicate to me that they are being treated unequally. Assuming that the law were in all other respects well-grounded, it would seem to be the same as saying that murder laws should be repealed because they are unfair to mass-murderers. I can certainly think of ways to illuminate injustice via the Equal Protection issue, but to me, it is a hazy issue and much less compelling than the protection of Liberty.

  • lewke

    I can understand the distinction between agreeing with the law being struck down and disagreeing with the reasons for doing so, particularly as this relates to the “right to privacy” which is itself an interpreted right and one that is very inconsistently handled (yay to abortion and sodomy; nay to drug use, prostitution, assisted suicide, and selling your kidneys).

    My main complaint with going with the “right to privacy” instead of the “Equality” arguement is that it’s essentially saying, “We don’t think that you have the same rights as heterosexuals, we just don’t think the states can tell you what you can or can’t do in the privacy of your home in regards to sex.” I may be mistaken in this, but I am pretty sure that the Texas law was specifically targeted at same sex couples and not those of different sex. That right there is pretty blatant inequality. By the court going with it’s approach, it’s shifted the various arguements on homosexuality away from equality and into the realm of privacy, which are very different things.

    I personally don’t agree with the legislation of “victimless crimes” (while people can claim damages by association and thereby claim to be a “victim” that association is one of choice) The basic purpose of law is to regulate and punish the infringement of rights between individuals or groups of individuals. The Constitution goes a step further in lining out what those rights are, sometimes very vaguely. This however does not stop the usage of the Constitution in the infringement of personal rights in regards to morality, just look at Prohibition and what Frist is talking about with same-sex marriages. His quote from lj’s post is also inaccurate, if the court strikes it down, it’s not criminal activity because it is no longer against the law.

    So yay to striking down the law, and yay to the increase in our rights to privacy (though I still want to claim a right to privacy on my income when tax time comes around), but boo to the court for not being more adamant on the equal rights issue.

  • Karl

    As regards (B):

    Quoting from Scalia’s dessenting opinion at 5:

    “Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority’s belief that certain sexual behavior is “immoral and unacceptable” constitutes a rational basis for regulation.”

    and at 14:
    “[T]he contention that there is no rational basis for the law here under attack…is so out of accord with our jurisprudence-indeed, with the jurisprudence of any society we know-that it requires little discussion.

    The Texas statues undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are ‘immoral and unacceptable,’ -the same interest furthered by criminal laws agasinst fornication, bigamy, adultery, adult incest, bestiality, and obscenity….If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above mentioned laws can survive rational-basis review.”

    What other basis is there for laws against incest, bigamy, adultery…or the banning of gays from the military?

    I’m not saying, de facto, that any of the above are good law, but that all of them will be swept out of the books with this decision leads me to believe that the court was far too broad with its pen, especially when there was the much more specific case of Equal Protection to rely upon. There’s no question that when the law says sodomy between same sex partners is illegal and sodomy between different sex partners is allowed that there is a lack of Equal Protection.

    As regards (a):

    At 8:
    “[The law] undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to “liberty” under the Due Process Clause, though today’s opinion repeatedly makes that claim.”

    The Court does not tell us what differentiates the choice of homosexual sodomy from a choice of occupation or drug habits to make it an exercise of ‘liberty’. In addition, if there is any merit in stare decisis, I think that the court needed to expound upon why promoting morality is no longer a legitimate state interest to meet rational basis review.


  • nacho

    bestiality is one that is not affected by this verdict, this verdict speak about acts of consenting adults. A sheep is not capable of consent to a human in that way.

    Obscenity is also already allowed in the privacy of your own home, in Texas a consenting man and woman could do almost anything to each other they wanted to, except killing and other things.

    I am not familiar with any adultery laws; I didn�t think any still existed. I could be wrong.

  • Karl


    See the above comment regarding the fact that consent does not enter into acts between man and animal. ie. There is not a legal requirement for getting dinner’s consent to butcher it.

    As regards adultery/sex outside of wedlock:

    See Owens V. State, 352Md. 663, 683, 742 A. 2s 43, 53 (1999) Relying on Bowers v. Hardwick in holding “a person has no consitutional right to engage in sexual intercourse, at least outside of marriage”.

    See Sherman v. Henry, 928 S. W. 2d 464, 469-473 (Tex. 1996) Relying on Bowers v. Hardwick in rejecting a claimed constitutional right to commit adultery.

    As regards obscenity:

    See Barnes v. Glen Theater, Inc., 501 U.S. 560, 569 (1991) that Indiana’s public indecency statute furthered “a substantial government interest in protecting order and morality.”

  • Dana Powers

    From your citations, Scalia appears to be arguing, with respect to rational justification under due process, that (1) we’ve always done it (equate morality with rationality), and (2) everyone else does it. Hmmm. This is the argument that requires little discussion…

    His secondary argument, a short-sighted emotional appeal, attempts to equate same-sex sodomy with incest, bigamy, adultery… and the banning of gays from the military. First of all, those issues are not on trial – if someone wants to bring them to the Courts, give each its due process and see what the outcome is, fine. Until then, we can only postulate… Secondly, there are (at least on the surface) rational reasons for limiting these ‘liberties’: incest has genetic and healthcare implications (Spina Bifida to name one), bigamy and adultery violate marriage contract law, and gays in the military… well, you got me there. Are there rational (i.e. non-moral) reasons to limit drug use, prostitution and occupations? Certainly: the government has a vested interest in public health. All of these so-called analogous actions are limited, but none of them strictly for moral reasons.

    As for Stare Decisis (precedent), I agree with you somewhat. It would be nice if the Court explained further the ‘rationality requirement’ with respect to other (seemingly affected) precedents.

  • lewke


    You may not have to get dinner’s consent before butchering it, but that doesn’t prevent them from passing laws regarding cruelty to animals and throw you in jail if you sadistically torture the animal for hours before you decide to finally kill it and eat it.

  • Karl


    You’re right…for now. But, if we can’t make laws based on morality anymore, what’s the rational basis for such a law? What non-moral legitimate state interest is there in not subjecting chickens to cruel deaths?

    Anyway, that’s beside the point that the animal’s consent doesn’t enter into it. Animal cruelty laws are constructs of our justice system, regarding agreements between humans about how cruelty affects humans. We never consult the animals, and thus consent does distinguish the current case from a possible legalization of beastiality, as some seem to think.


  • Fuzzy

    > What other basis is there for laws against incest, bigamy, adultery�
    > or the banning of gays from the military?

    And your point? You act as thought that is a *bad* thing.

    I don’t care what other consenting adults are doing in the privacy of their bedroom. I don’t want to watch and I don’t want to hear about it. If they want to do it while swinging from a chandalier while covered with chocolate sauce and whipped cream, they are more than welcome to go for it. If some woman wants to have five husbands to help keep her sexually satisfied and all six parties consent to the arrangement – great! If homosexuals want to fight for the rights of their fellow citizens against repressive governments around the world – great! Why is it any of my or *your* business or the governments business?

    “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”

    Why should the two consenting adults need to give up the security to their most private locations performing some of the most intimate of acts?

  • Karl


    The fact of the matter is that up until last week many, if not all, of those acts could be the government’s business, and suddently with little recognition of any of the profound number of cases that had relied upon its precedents the Court decided that it would no longer be. If you read the line following the one you quoted, I immediately state that I’m not saying any of the laws are good, but the simple fact that there are so many that rely on Bowers makes it rather negligent to write such a broad opinion and give such little clarification for this bold new jurisprudence where privacy suddenly trumps the previous legitimate state interest in morality.

    I believe the court is right in it’s judgment, but reckless in it’s scope.


  • nacho


    OK, sure I can see that consent isn’t required for bestiality, however there is a public health risk in regards to disease being spread to an from animals that in my mind would out weigh any due-process or privacy laws.

    Regarding the animal becoming my dinner, there are laws and regulations as to what is and is not allowed when butchering the animal, again public health concerns.

    BOWERS v. HARDWICK was strictly a sodomy case, and the finding by the Supreme Court in respect to the Texas law negates this case anyway. It only challenged the constitutionality of a sodomy law in Georgia. Georgia has sense repealed their sodomy laws.

    “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.” – Justice Kennedy

    You main complaint seems to be that the court used the Equal Protection clause to overturn the law. Here is part of Sandra Day O’Connor’s opinion.

    “The Texas statute makes homosexuals unequal in the eyes of the law by making particular conduct _ and only that conduct _ subject to criminal sanction. And while the penalty imposed on petitioners in this case was relatively minor, the consequences of conviction are not.”

    It is important to note that O’Connor does not believe this ruling has shut down all sodomy laws, only laws that treat homosexuals different from heterosexuals. Other laws in this country regarding sodomy between a man and woman may still stay on the books.

    The justices make their choice; they each cast their vote based on what they think. Each ruled based on their own opinions. O’Conner for Equal Protection, Kennedy for privacy.

    I cannot find anything that speaks directly to adultery but I am still looking. I have looked at the obscenity case yet, but I will. give me some time.

  • Karl

    You’ve actually got my arguement backwards. I believe the Equal Protection route would have been the correct way to strike down the law. I agree with almost every word of Justice O’Connor’s opinion, including when she explains why she would not overturn Bowers. Unfortunately hers is not the legally binding one, and Bowers is overturned by the Court’s opinion. The result is that each of those cases I referred you to, cited by Justice Scalia in his opinion, as well as many more, which relied on Bowers, are now without legal muster.

    Bowers may have had a limited scope, but it was heavily relied upon in the jurisprudence of morality. Those days are now gone, drawn assunder by the Lawrence decision. My objection is not necessarily with this effect, but with the lack of care with which the court struck their own precedent, and the lack of mention of any of the tower of cases that were built upon it.

    In a word, careless…and of all institutions the Court can least afford it.


  • Bruce M.


    First of all, I never said you were a bigot nor do I believe you are one.

    The majority’s opinion in Lawrence was not perfect. If they weren’t prepared to say we all have a fundamental right to engage in consentual sexual relations within the privacy of our homes, they should have just decided it on Equal Protection grounds, like O’Connor’s concurrence. But their failure to use the magic words “fundamental right” doesn’t make the opinion illegitimate by any stretch of the imagination.

    Now, as for the “there is no constitutional right to engage in homosexual sodomy” line of reasoning, the first thing to note is that the rights and powers the constitution grants are not to be interpreted by the expresio unus exclusio alterus maxim. The 9th Amendment was stuck in there expressly to prevent that sort of statutory construction.

    That being said, the Lawrence case wasn’t about establishing a constitutional right to engage in homosexual sodomy. It was about, in addition to the equal protection argument, the right to not have the state come into your bedroom and charge you with a crime because it doesn’t approve of the way you’re having sex. Just because a law is overturned doesn’t mean there is a constitutional right to do the thing the law prevented. I’ll give you an example. The 5th Circuit just affirmed Dickerson v. Bailey, agreeing with the district court that Texas’s (ever notice how it’s always Texas getting its laws tossed out?) “consumers can’t directly import wine from out of state, but they can directly import wine from in-state wineries” law was violative of the dormant commerce clause. That doesn’t mean there is now a constitutional right to have wine directly shipped to your residence from out of state. Texas can (and most likely will) pass a law saying consumers cannot have wine shipped directly to them regardless of where it comes from–in state or out of state.

    The result of Lawrence is not a new right granted, but rather a clarification on that which the government cannot legally do.

    Another thing. Even though the opinion says it, I do not believe (and this is just my opinion) the state has the right to regulate morality (whatever that may be). If the state’s only justification for X statute is “to regulate morality” that should be a per se illegitimate government purpose, thus always failing rational basis scrutiny. In america, sin and law are two totally different concepts. Sin is a personal ‘law’ that guides your own behavior; law applies to everyone and is supposed to guide everyone’s behavior. If there were a legitimate government purpose for the statute in question, the government wouldn’t have to use “regulating morality” as its intent. The gov’t should not be telling me how to behave to get into heaven; that’s all “morality” is. Sometimes morality and law cross, of course; for example murder is both illegal and immoral. But its not illegal because it’s immoral; it is illegal because society needs it to be illegal in order to function. If we could all kill each other with impunity, you can see how there would be major problems. The same cannot be said about sodomy. That was only proscribed because the bahbull says it is a sin. The bible itself, I might add, is unconstitutionally vague–every line of it.

    In a perfect world, Lawrence would have been decided the same way on Establishment Clause grounds.

    On a somewhat related topic, I think the affirmative action case was horrible and completely wrong. Like morality, “diversity” isn’t a legitimate government purpose, either. Diversity is a glurge-word, a feel-good piece of fluff; it’s a word spawned from the afterbirth of the politically correct movement of the early 90′s. The only result of that opinion is that 3 groups of people–blacks, hispanics, and native Americans–are officially inferior in the eyes of the law. I think that’s terrible, and it implies Dredd Scott was properly decided. Taking an applicant’s economic status/situation into account in the admissions process would be just fine, but saying members of three races get extra credit because they cannot otherwise compete is insulting. If this is true, we need to quit spouting off that “all men are created equal” crap. Clearly, according to this opinion, they are not.

  • Fuzzy

    > My objection is not necessarily with this effect, but with the lack of care
    > with which the court struck their own precedent, and the lack of mention
    > of any of the tower of cases that were built upon it.

    ROTFL. Yep, they must have just dashed off that opinion without any
    thoughts at all. No siree, they are just a bunch on legal amateurs. Instead
    of ascribing their opinion to lack of care, why not assume that maybe they
    want to re-examine a set of issues? Why not assume that just as earlier
    courts made errors with the issues of immigration and naturalization of
    non-white people (Japanese, Chinese, Indian/Pakistani), that the court
    has decided that a number of laws need to be re-examined in light of the
    fact that we have a constitutional right to privacy that have been badly
    eroded by a bunch of voyeuristic, paternalistic legislatures?

  • Karl


    I agree with much of your argument, but I do think there are areas of morality and ethics (my degree is in Philosophy) that have nothing to do with religion. (See the argument above regarding cruelty to animals and whether laws preventing it are allowed until this new no-morality jurisprudence.)

    >The result of Lawrence is not a new right granted, but rather >a clarification on that which the government cannot legally >do.

    I’m having a difficult time with this. I don’t understand why the Court spent so much of their time on dicta regarding ‘fundamental rights’ and ‘liberty’ if the result is simply proscriptions against the government. It seems rather clear to me that the Court’s opinion extracts a new form of liberty from the Due Process Clause that did not previously exist, but I’d be happy to hear more about how I could be misperceiving this.

    I agree wholeheartedly with your discussion of the AA case. I don’t know how anyone could read Justice Thomas’ opinion and vote to uphold AA.


    I don’t think the way to get issues brought back to the fore is to ignore them. Perhaps the Justices are just that tricky, but for some reason I doubt it.


  • Scott

    Unlike a lot of the respondents, I an neither a lawyer, nor a law student. It seems to me that a law which can only be enforced through “unreasonable search” must be struck down. Otherwise we succumb to the excesses of (for example) the 60′s where enforcement discretion was used to persecute a class not necessarily otherwise legally identifiable.

    Unenforceable laws have no place on the books; they are both anathema to equal treatment and enticement to corruption. Laws against public sodomy would be OK with me (don’t scare the horses and all that), but are subsumed by laws against public sexual behavior. In the case presented, police were present because of false information. Had the couple been of opposite sexes, who believes there would have been a prosecution?

  • Bruce M.

    There are most certainly areas of morality and ethics that don’t have to do with religion (ever take the MPRE? hehe). Proscriptions against sodomy/homosexuality, however, are entirely religious. A secular argument cannot be made to support it being unethical/immoral, and certainly there is no secular argument for making it illegal. I live in Texas, and trust me, this whole “illegal sodomy” stuff is nothing more than a Jesus thing.

    The Constitution, and more specifically the Bill of Rights, limits what the government can do. It doesn’t say “the people have the fundamental right to freedom of speech” but rather “congress shall make no law…abridging the freedom of speech….” Yeah the Court often uses what amounts to a legal fiction of saying x is a fundamental right, liberty, liberty interest, or whatever they feel like calling it. But that’s just shorthand so the Court knows what standard of review to use (strict scrutiny, rational basis, etc.) Or to be more cynical, it’s just shorthand so that we, the readers of their opinions, get the impression that their decisions are not as arbitrary as they really are. But it all comes down to limiting what the government (at the behest of the majority) can do.

    Yeah, I agree re: Thomas’ dissent. How anyone can read that and, in good faith (i.e. no agenda) disagree, boggles my mind. I’d be curious how/why Professor Lessig believes the case was properly decided, as I find that I agree with him nearly all of the time and consider him to be an incredibly smart guy.

  • Fuzzy

    Bruce, in my opinion, you have two flaws in your reasoning about affirmative action. The first is that the Supreme Court did not say members of three races get extra credit. In fact, that was explicitly prohibited in the the Univerisity of Michigan undergraduate case that was decided at the same time as the law school admissions case. An applicants race may be taken into account on an individual basis but all applicants cannot simply be given extra points because of their race. The second error (in my opinion) is to assume that just because all men are created equal that they all receive the same environment or treatment. Nature and Nuture are both parts of the whole and there is more than just economics involved to the nurture side. The fact is that there are many forms of subtle (and not so subtle) discrimination against people of color in this country (the USA). Yes, it is possible for outstanding individuals to overcome these roadblocks and even to emerge stronger, but we should not depend upon all people being outstanding.

  • Karl

    I think these words are beyond rebuttal, but I’m open to hear from anyone who thinks otherwise.

    Justice Thomas, dissenting in Grutter v. Bollinger, at 1:

    “Frederick Douglass, speaking to a group of abolitionists almost 140 years ago, delivered a message lost on today’s majority:

    ‘[I]n regard to the colored people, there is always more that is benevolent, I perceive, than just, mani-fested towards us. What I ask for the negro is not be-nevolence, not pity, not sympathy, but simply justice. The American people have always been anxious to know what they shall do with us. . . . I have had but one answer from the beginning. Do nothing with us! Your doing with us has already played the mischief with us. Do nothing with us! If the apples will not remain on the tree of their own strength, if they are worm-eaten at the core, if they are early ripe and dis-posed to fall, let them fall! . . . And if the negro can-not stand on his own legs, let him fall also. All I ask is, give him a chance to stand on his own legs! Let him alone! . . . [Y]our interference is doing him posi-tive injury.’; What the Black Man Wants: An Address Delivered in Boston, Massachusetts, on 26 January 1865, reprinted in 4 The Frederick Douglass Papers 59, 68 (J. Blassingame & J. McKivigan eds. 1991)”

    I am of the opinion, like Justices Thomas and Scalia that the decision in Adarand makes any all classifications based on race, for the purpose of positive or negative treatment unconstitutional. “Purchased at the price of immeasurable suffering, the equal protection principle reflects our Nation’s understanding that such classifications ultimately have a destructive impact on the individual and our society.” (Adarand Construction Inc. v. Pena,, 515 U.S. 200, 240 (1995)(Thomas, J. concuring in part and concurring in the judgment).

    Theoretically, I believe that settles the issue, and pragmatically, any possible benefit gained by minorities through Affirmative Action is countered by the way “[t]hese programs stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are ‘entitled’ to preferences.” Ibid. at 241.


  • Fuzzy

    There are some quotes I believe deserve a reply – Frederick Douglass asks for “simply justice” and few would argue with that. However, what we have found as a society is that “separate is not equal” and that institutions from banks to the police to the judicial system have not always provided simple justice. The facts in many cases are: that some neighborhoods who have large populations of people of color have been “redlined”; that some people of color who drive cars are racially profiled and improperly singled out; that people of color are more likely to be convicted and likely to be more severely punished, even when equalizing for economic levels. I think that saying “All I ask is, give him a chance to stand on his own legs! Let him alone!” ignores the last 30 years of history, where it has been shown that society can still try to cut the legs out from under a person of color. In most of our ideal worlds, being left alone to forge your own destiny is all that is necessary for success. This is not that ideal world, yet.

  • Michael Koenecke

    In response to Fuzzy: what you’re saying is that racial preferences need to continue existing until we have a perfect world. I’ve got news for you: that’s never, ever going to exist.

    Me, I think racial preferences *perpetuate* class distinctions and racism. The Supreme Court has given its imprimatur to the concept that what counts to differentiate people from each other is skin color. “Diversity” here does not mean differing cultural or economic backgrounds: it means differing amounts of melanin. The Ku Klux Klan would agree wholeheartedly. Until we reach Martin Luther King’s ideal, where a man is judged not by the color of his skin, but by the content of his character, we will continue to perpetuate racism on an institutional level.

    Regarding the Lawrence case: I, too, agree the Texas law should have been repealed years ago. But I, too, think the majority opinion is simply bad law.

    For what it’s worth, I am a lawyer. Having appreciated Professor Lessig’s work previously, I am rather disappointed at his knee-jerk approval of the recent Supreme Court decisions: like all other commentators I have seen, the reasoning really goes no farther than “laws against sodomy are *bad*, so they *should* be unconstitutional. Yay!” I agree laws against sodomy are bad, but disagree that “bad” equals “unconstitutional.”

  • Karl

    I agree with every word. One of the very few commentators who I’ve seen take a hard look at the meaning of Lawrence is William Safire in this insightful piece.

    I know the professor is busy with ILaw, or we’d probably have already heard plenty from him on this debate. I’m sure he will lend his full voice to the matter soon enough.


  • Bruce M.

    Fuzzy: Blacks, Hispanics, and Native Americans are the 3 Officially Recognized Minorities (ORMs). True, the Supreme Court did not preclude other minorities, such as Asians or Jews, from eventually gaining ORM status. But as for right now, if you are a minority not among those 3 special ones, your status is not “taken into consideration” (in other words, it doesn’t help you at all in the application process.) An Asain or an Arab is just as evil as Mr. Whitey. I suppose we all know that Asians can do just fine on the LSAT, and most of them have excellent undergrad GPAs… so they don’t need the help that the poor dumb black people apparently (and now, officially) need. No, *I* do not believe this to be true, but it’s now the law of the land.

    “Race taken into account” is a euphamism for “giving them extra points.” There’s no other way to see it. The only thing that’s not allowed is to actually have a “you get x number of automatic points out of y total points for being black/hispanic/native american.” But it’s perfectly fine for the a black/hispanic/native American applicant to have his/her race “taken into account” upon application. Since it would surely be unconstitutional for race to be taken into account in a negative way, it necessarily means that race can only be used in a positive way to help the minority applicant (surely there would be major problems… riots, looting, etc… if a black person, even unqualified, were to be excluded explicitly because her race were “taken into account.”)

    I have a dream. I have a dream that one day, everybody’s race can be taken into account, to their benefit, upon application to any given position.

    Points, plusses, gold stars, extra credit, bonus kudoz–whatever you want to call it–they get that extra benefit solely because they belong to an ORM. As long as that extra benefit is not expressly quantifiable, it’s apparently constitutional.

    One more thing to think about. For ORM members to have their races taken into account to their advantage, that means white applicants (or any non-ORM applicant for that matter) ipso facto have their race taken into account too–to their disadvantage. That means my non-ORM status actually HURTS me. I feel like rioting and looting, but it’s nearly 100 degrees outside and I’d rather sit on my ass and watch HBO. Anyway, I’ve already been to law school, what the hell do I care?

  • Dana Powers

    For what its worth, I used to live within walking distance of Castro/Market, and the flag Dr. Lessig mentions is impressive to say the least. I dont think words can express how dramatic a statement it is to have it willfully and graciously, if only temporarily, replaced with an American Flag. I really wish I were still there to see it.

  • James

    Karl –

    How do you feel about the contraception cases that were precursors to Roe v. Wade? If I am not mistaken, the Supreme Court has held that the Constitutional right of privacy extends to the use of contraceptives by unmarried individuals.

    But from your argument, it would seem that you disagree with privacy rights being used to protect the choice to use contraceptives — you would seem to advocate leaving this up to the democratic processes of states, and thus possibly having use of contraceptives outlawed depending on local mores.

    I just want to see exactly how far your “strict Constitutionalism” extends.

  • Karl


    A law that forbid sale of contraceptives to unmarried individuals would be unconsitutional on Equal Protection grounds, just as I believe the law in Lawrence was. I don’t think I could find a Constitutional problem if a state chose to outlaw contraceptives across-the-board. That said, I don’t think a democratic majority in any state would want to outlaw contraceptives totally.

    I think there is adequate language within the Constitution and the democratic process to protect individuals without resorting to the inflation of the ‘privacy’ balloon.


  • Dana Powers


    Wouldn’t, then, the recent marriage tax breaks be unconstitutional? I’m not married – so what? – why do I have to pay more taxes?

    There is no ‘privacy’ balloon. There are simply people who believe the Constitution is supposed to protect individuals, not empower mobs. And rightfully so.

  • Bruce M.

    What about a law that bans contraceptives for everyone (married, unmarried, etc)? Do you think that would be constitutional?

  • http://home.uchicago.edu/~kldavis/work.html Karl


    Don’t get me started on the tax code…there are so many fundamentally unconstitutional parts that I won’t even bother.

    As far as ‘empowering mobs’ is concerned, I’ve never heard the state legislatures referred to as such, but I guess you’re entitled to your opinion.

    From above: “I don’t think I could find a Constitutional problem if a state chose to outlaw contraceptives across-the-board.” I think the State is within it’s rights. I’d like to see gounds…such as the fact that many contraceptives can pose significant health risks, but I’m not sure they’re required by the Constitution.

    Just to clarify something for you all, I’m a recent college grad with only two law courses under my belt. I could be legally wrong on any of the above, but then again it’s all just my opinion. I appreciate the debate, and the exercise is what is most important to me.


  • Fuzzy

    ARGH! Privacy is not a balloon. It is a cornerstone of freedom. If a person does not feel safe and private, then they have lost their freedoms. The right to be free in our persons, houses, papers, and effects from searches is an explicit right to privacy. You cannot have free elections without a right to privacy. If you must give up the right to an anonymous vote, you sacrifice your democracy.
    Further, some people seem to also assume that unless an explicit individual right is spelled out in the Constitution or Bill of Rights that the government can control it, while in fact it is the exact opposite. This was one of the arguments against the Bill of Rights made when the document was being written – the fear that the government would treat only the enumerated rights as reserved to the citizens. All rights (including those explicitly enumerated) that were not explicitly provided to the goverment are reserved for the people. This is not some sort of constitutional constructionism – it is there in “black and white”.

  • John Anderson

    Right decision, possibly for wrong reasons.

    I concur more with Justice O’Connor than the majority, unless Texas has a history of breaking in upon hetero couples so engaged and prosecuting them. It doesn’t? Sounds like those written exams that used to be the practice in certain places, with different exams given based upon how “different” (ie, non-Caucasian) you were. “Tyranny of the majority.”

    And if the state has no, or insufficient, rationale for a law or regulation or rule or what-have-you it should (as most states have done with sodomy laws) repeal it, and not try to enforce it in the meantime, and most certainly not try to enforce it selectively. The police who made the arrest may have been operating correctly because they are not allowed to pick-and-choose which laws to enforce, but the DA has discretion to refuse to prosecute.

    And yes, I believe some mores change with the times. Homosexuality is one example, it used to be in the interest of the state to insist that all who could procreate should do so regardless of their desires, so as to ensure a sufficiency of workers (food, shelter, etc.) and soldiers (self-defence). This is still, unfortunately, a consideration in some places – but Texas?

    Consider another: masturbation. when I was a kid in the fifties, it was considered horrible. The justification given was to call it “the sin of Onan”, as he ‘spilled his seed’. But look at the actual case: his “sin” was in not trying to make his brother’s widow pregnant! If someone today raped his sister-in-law and said it was to ensure his dead brother’s line continue, would he win in court?

  • Anon

    Woah, Genesis analogy seemingly out of nowhere, cool.

    Anyway, good breakdown of the story of Onan, but it’s a bit more complex than that. The story is really about the law of God vs. the law of man. Onan’s brother was killed by God for being ‘evil’, and according to the law of his people his entire lineage would be branded such, including any children produced by his wife even after his death, no matter who the genetic father was.

    Now, God wanted Onan to take his brother’s widow as his wife, but Onan refused to treat her like a wife, preventing himself from impregnating her so that she would not bear any more ‘evil’ children. So, when God struck Onan dead for ‘spilling his seed’, it had nothing to do with masturbation, as you pointed out, and little to do with ‘potential life’ as some have chosen to interpret it. Infact, the story is about trusting the law of God above and beyond the law of man. If God says have children with this woman, you do it. You don’t care if your people will brand them as ‘evil’, you just do it.

    It’s a very tricky moral, especially applied to the case we’re discussing, and one that doesn’t seem to have much credence these days.

  • Don P


    The Constitution is full of words and phrases whose meaning is not self-evident and that need to be interpeted by the court in its evaluation of the constitutionality of laws presented to it. These words and phrases include “speech,” “religion,” “establishment,” “free exercise,” “keep and bear arms,” “cruel and unusual punishment,” “equal protection,” and, yes, “liberty.” Unless you believe that constitutional “liberty” means only freedom from physical confinement, and does not extend to other aspects of a person’s life, you cannot just summarily declare that the liberty right protected by the Constitution does not include private consensual sex. It’s all a matter of interpretation. The fact that sex or sodomy are not explicitly mentioned in the text of the Constitution is not relevant because, as others have pointed out, the 9th Amendment makes it clear that Constitutional protection extends to rights that are not explicitly enumerated in the document.

    The Court’s inclusion of private consensual sodomy in the liberty right protected by the Constitution is not some radical new constitutional doctrine; it is the natural extension of a long series of prior decisions that have upheld liberty interest rights in the areas of sex, relationships, reproduction and family life.

  • Karl


    I guess this idea of evaluation and interpretation is one of the many topics upon which I have differing opinion from most of the people who responded on this topic.

    In my study of philosophy (specifically Hegel, who I believe invented more words than anyone else in the history of the written word), I’ve come to realize that language is a very specific tool, especially language that has been debated, changed, and ratified by a body as esteemed as the founding fathers.

    I believe there are explainations for the beliefs you, and many others here, hold, inherent in modern conceptions of language (like…you know…whatever), which have perverted the previously more rigid nature of words. Today, many believe that every word of the Constitution is open to be interpreted, but most forget that in the majority of cases this has already been done. The historical record is there, we can see the different draft forms that different articles and amendments took, and understand why the text was written the way it was.

    This belief, combined with my strict Constitutionalism, leads me to firmly believe that there is no reason to interpret any additional tenets into the fundamental document of our law (which can be equated to changing the rules of the game ex post facto) when there are existing rationale to strike down the law.


  • Don P

    Then exactly WHAT does constitutional “liberty” MEAN, in your view? Exactly WHAT forms of liberty does this right protect? Freedom from physical confinement, and nothing more? Or what? You keep alluding to some alleged historical record that makes the limits of constitutional liberty clear, but I see no such record.

    The same question can be asked about other terms. What, exactly, does “cruel and unusual punishment” mean? Exactly what forms of punishment by the state does this phrase prohibit? Torture? The death penalty for theft? Ditto for “keep and bear arms.” Does “arms” include machine guns? Chemical weapons? Nuclear weapons?

    I don’t know how you can seriously claim that the meaning of these words and phrases is clear.

  • Karl

    I never claimed that the text was ‘clear’, and I’m not saying it’s an easy job to determine what the authors of the Constitution meant; I don’t envy the Court in these difficult matters.

    What I’m saying is that I know language can be much more exact than we give it credit for in modern society (and, as an aside with all due respect to present company, I think lawyers are much to blame for the lack of faith we have in language). I mean to critique the theory that every word of the Constitution is open to interpretation and debate. I don’t want to dwell on specific words or phrases.

    While I don’t purport to know the truths of every phrase that sprang from the founding father’s pens. I’m absolutely clear on the fact that the authors of the Constitution didn’t mean to include homosexual sodomy under the definition of liberty. I don’t need Jefferson’s notebooks to glean that from history. And, when the Equal Protection clause exists to strike down laws such as the one in Lawrence, there is no need to go into the mire and attempt to reconcile such modern mores with the obviously inconsistent feelings of the past.

    I believe the court’s failure to use a fine pen in the Lawrence decision will have undesired results. The court’s Opinion instills the Constitution with much broader language than the framer’s intended, striking down language that had been carefully crafted. I find the Court to be near-sited, an conclusion that is belayed by their lack of discussion of the matter of Stare Decisis. In the span of a decade, promoting morality ceased to be a legitimate state interest, with no explanation from the Court.

    I’m sure you feel otherwise, but really only time can tell.


  • John

    > In the case presented, police were present because of false information. Had the
    > couple been of opposite sexes, who believes there would have been a prosecution?

    Also, had the couple not happened to be an interracial couple, would there have been a prosecution? Would there have even been an arrest?

    Perhaps the Justices noticed the smell of old-time, rotting crow in the case, and took the opportunity to dispose of a law that was certainly being selectively enforced.

  • Karl

    “Courts should not be censoring what people see or read in the name of morality, religion, or squeamishness.”

    It seems the Court agrees with you, Hank. I’m not arguing this point, however. I believe the major problem with the Court’s opinion that you’re sidestepping is their failure to discuss the fact that until Lawrence preserving morality and public decency was a legitimate state interest, and the Court overturned hundreds of legal precedents without a word regarding Stare Decisis.

    It may be conjecture on my part to say that I believe the Court’s nearsightedness would have been laid bare if they had attempted to reconcile the methods they used in Lawrence with their precedent, but I think Justice Scalia makes many convincing points in his dissent regarding the rationale the Court employs, and how it allows for, if not necessitates, the overturning of Roe and Casey.

    As an aside, the point regarding majority will and the 2000 presidential election has been raised before, and it is no less off-topic now. Our electoral system purposefully chooses to ignore the will of the majority. The electoral college was created for just that reason. The same can be said to some effect as regard our legislatures and courts. However, I don’t believe it is spelled out as firmly, nor should it be tolerated to the same degree.

    Also, as has be stated above, discussion of the ninth amendment is misplaced, as the Court does not reference it once, and your analysis of the Due Process Clause is lacking, as the Due Process Clause does not grant any liberties; it simply states how and when liberties can be taken away.

    The issue of ‘consent’ was also dealt with earlier in this discussion as regards beastiality. We don’t require consent of animals to do things to them that would be illegal if done to a human. Thus, there’s no reason to believe that any consent is necessary beside the human who wants to commit the act with the beast. The Lawrence decision creates a wall of privacy surrounding the bedroom that cannot be pierced for reasons of fostering morality. Tell me what other reason their is to prohibit bestiality.