upholding the Constitution when it conflicts with personal beliefs

[The Wrath]

This is something that has bugged me for a while. What if a SCOTUS Justice interprets the Constitution in a way that conflicts with his own beliefs? For instance, if I were a Justice, this would be an issue I feel confident would come up in some of my opinions. I believe in the complete separation of church and state, but I do not believe that the Constitution provides for it. I believe that the Constitution prohibits the establishment of a state religion, but that it does not prohibit religiously-inspired laws. I also believe that human beings have a right to privacy, but that this is not a right given to us in the Constitution. Without a right to privacy, landmark SCOTUS decisions such as Roe v. Wade and Lawrence v. Texas would cease to exist.

So, if I were SCOTUS Justice, how should I rule? For these purposes, please assume that my interpretations of the Constitution are objectively correct. Please don't try to show me why my interpretations are wrong, as that is a topic for another thread. Even if I am wrong, there are certainly other things in the Constitution that would conflict with my own values. How should a judge act in these situations, when his job is to interpret the Constitution, not rule in favor of his own beliefs?

[DavidOdden]

What if a SCOTUS Justice interprets the Constitution in a way that conflicts with his own beliefs?

Hell would freeze over. Actually, this is what I have set forth at various intervals as the "Justice Conjecture", that no appelate justice will make a finding based on what the law and constitution requires, if he would hold that doing so would result in an injustice. Another way to put it is, you reach your conclusion, and then you reach into your twisted bag of tricks to come up with a rhetorical path that sanctions that conclusion.

[Captain Nate]

You have to make your decision based on the Constitution, which you are sworn to uphold. It's the objective law of the land, and rewriting it with your own opinions is wrong and disasterous. Plus, your authority to adjudicate cases exists only because the Constitution grants it to you; if you pervert what the Constitution says, you're creating a contradiction because your perverting your own authority you're using justify your action.

[The Wrath]

You have to make your decision based on the Constitution, which you are sworn to uphold. It's the objective law of the land, and rewriting it with your own opinions is wrong and disasterous. Plus, your authority to adjudicate cases exists only because the Constitution grants it to you; if you pervert what the Constitution says, you're creating a contradiction because your perverting your own authority you're using justify your action.

This is the opinion that I also hold. So, if I were a SCOTUS Justice and faced with a case in which we were debating the Constitutionality of a law that is undeniably religious in nature, I would be obligated to uphold it, even though it conflicts with my personal values? Even though it is in conflict with what everyone on this board holds to be the proper function of government? Keep in mind that I'm not talking about my personal preferences, but the objectively proper functions of government. In this situation what would you, as an Objectivist, urge me to do?

Edited August 14, 2006 by Moose

[LaszloWalrus]

Tara Smith has an interesting lecture "http://www.aynrandbookstore.com/prodinfo.asp?number=PS01M" which (in addition to other topics) addresses this very concern. I forget what her reasoning or conclusion was, however.

[JMeganSnow]

I think the question you'd need to ask yourself is, what is the purpose of the Constitution? You can't know whether you should go with the letter of the law or uphold what you consider to be the spirit or intent of the law unless you understand the source from which the law springs. If you find two apparent underlying principles which appear to be in conflict, then you need to figure out which one is more fundamental, and go with that one.

[The Wrath]

I'm no Constitutional expert, but I do believe that the Constitution does not forbid religiously-inspired laws. I also believe that it does not give us a right to privacy. Assuming that my interpretation is objectively correct, what should I have done if I had been the deciding vote of Roe v. Wade?

[softwareNerd]

...what should I have done if I had been the deciding vote of Roe v. Wade?

Decided that individuals have rights, and in this instance a woman has right to do what she likes with the cells in her body and that the state has no power to legislate in that area. In his book "To Secure These Rights", Scott Douglas Gerber makes the good case for constitutional interpretation where securing individual rights is taken as the primary aim of the constitution.

[DavidOdden]

I'm no Constitutional expert, but I do believe that the Constitution does not forbid religiously-inspired laws.

That's right, since in fact it doesn't address the question of inspiration at all. You can be divinely inspired, motivated by the masses, personal greed, high on drugs or using a random-law generator, it wouldn't matter. All that matters (and this isn't even stated in the Constitution) is what the law actually says. That's a problem, since that isn't how people actually interpret laws. They go with what they think is the inspiration. The "legislative intent", which is a piece of post hoc neo-postmodernist deconstructionalism.

I also believe that it does not give us a right to privacy. Assuming that my interpretation is objectively correct, what should I have done if I had been the deciding vote of Roe v. Wade?

Are you being a strict literalist / Textualist? Then you should have voted with the minority (against Roe). There is nothing in the Constitution that guarantees a "right to privacy", although if you want such a right you can write to your congressman to ask for such a bill to be passed. A "right to privacy" would mean that you had the right to act (privately) as you wish, engage in whatever voluntary business deals you wish to engage in, to keep your own money and not have to give it to the government or even tell them how much you have, you would not have to register for the draft, or serve involuntarily in the military, and they could never take away your private property. So clearly there is no Constitutional right to privacy.

Now there actually is another response. The idea that you have to make your decisions based on the Constitution is just one school of thought about justices: that is certainly not a requirement imposed by statute or the Constitution itself. I would ask a different question from Jennifer: what is the function of a Supreme Court justice? Judges have the function of dispensing justice. (There is a whacky alternative view that the function of judges is to enforce the law). Obviously, the conflict arises when you have an unjust law. So if you believe that the law is unjust, you can find for the complainant on the grounds that the law is unjust. You would vote with the majority but write a separate opinion.

My objection to Blackmun and the Roe v. Wade decision is that it is dishonest. The right to privacy is not in the Constitution, it is in the "penumbra" of the Constitution, invented by activist judges; it simply is not in the 14th Amendment. Not one thing in the Constitution mentions a "fundamental right" to an abortion or implies any such thing without implying a fundamental right to not be drafted, taxed or have your business regulated.

[The Wrath]

I like your answer except for the part about how being a judge means you can strike down laws that you think are unjust. What that basically says is that the law becomes subject to the whims of judges. And I was also pretty sure that the sole purpose of SCOTUS was to decide the Constitutionality of certain cases, not whether or not they are just.

Edited August 15, 2006 by Moose

[DavidOdden]

I like your answer except for the part about how being a judge means you can strike down laws that you think are unjust. What that basically says is that the law becomes subject to the whims of judges. And I was also pretty sure that the sole purpose of SCOTUS was to decide the Constitutionality of certain cases, not whether or not they are just.

My bigger point is that there are different theories of what The Courts are supposed to do. You need to start by distinguishing the normative and descriptive questions separately -- what in fact is the function of SCOTUS, and what should be it's function. The Constitution is absolutely silent on that issue, so while your are right that laws are theoretically subject to the whims of judges, there has been a strong tendency of being conservative (not making waves), thus not striking down a murder statute in its entirety for some evil purpose.

Notice BTW that the Constitution doesn't say "The purpose of X is Y", for anything. Hence it certainly doesn't say that the purpose of SCOTUS is to decide the Constitutionality of certain cases. Without my version of the Constitution, I would not want SCOTUS to only be able to decide issues of constitutionality under a literalist approach to the constitution. Of course I would not want any people like Ginsburg on the bench, either. (And BTW I don't think that it's even reasonable to limit cases which SCOTUS hears to just those that involve constitutional issues, since sometimes there are issues involving plain application of a particular federal statute -- for instance, Bronston didn't involve any constititional issues, and clearly the case had to be heard and definitively decided).

In saying that you don't like the idea of judges determining law on a whim, does that mean that if a bad law would force a grave injustice, that you would support the grave injustice?

[The Wrath]

It's not so much that I would support the upholding of an unjust law as it is I think that the rule of law needs to be upheld. There are some laws so incredibly unjust, that everyone has not only the right, but the responsibility to break them.

However, if Lawrence v. Texas had been decided on the "right to privacy" grounds, I would hold that it was the wrong ruling. As it stood, the case was not about privacy rights, but about illeagl search and seizure, since the 2 men were caught having gay sex during an investigation of a weapons violation--completely unrelated crime. However, if it were on the "right to privacy," I believe the Texas sodomy law should have been upheld. Why? Yes, the law is unjust, but it is not so unjust as to warrant throwing the rule of law out the window.

Some months back, I ceded the point that immigration laws are unjust enough to warrant breaking them. In the case of sodomy laws, I don't think it is warranted, because the law has minimal impact...mostly because gay men don't make a habit of having anal intercourse where law enforcement officials can see them.

If a judge thinks a law is unjust, I do not believe that that, in and of itself, warrants overturning it. There are better means of getting rid of such laws, such as the legislature.

I am no Constitutional scholar, so I will take you on your word that the purpose of SCOTUS is not explicitly laid out as dealing only with Constitutional issues. But I still think this is a problem, because what you are basically recommending is that all SCOTUS Justices rule on what they think is just, not what the law of the land says. If judges used their own opinions, rather than objective law, then we would live in a nation ruled by men, not a nation ruled by law. If the Court were made up of all laissez-faire Capitalists, I'd say fine. But it isn't, and we can't stipulate that only Capitalist Justices get to decide based on their own opinions of what is just and what isn't.

[DavidOdden]

It's not so much that I would support the upholding of an unjust law as it is I think that the rule of law needs to be upheld.

But why does the rule of law need to be upheld. Is "the law" man's moral primary -- most important is upholding the law, no matter what it is? If you think that some laws are so unjust that they must be broken, what is the nature of those laws -- especially, what distinguishes law that are unjust but should be obeyed, versus ones that are unjust and should be broken? There has to be some rational identifying characteristig of the two kinds of unjust laws.

For any egregiously unjust law -- of the kind that you think should be broken -- there are better means of getting rid of such laws, such as the legislature. Doesn't that mean that no law should be broken, no matter how unjust?

what you are basically recommending is that all SCOTUS Justices rule on what they think is just, not what the law of the land says.

Not exactly: I think that SCOTUS should rule based on what is just, and I also think that legislatures should only pass just laws.

If judges used their own opinions, rather than objective law, then we would live in a nation ruled by men, not a nation ruled by law.

Possibly, except that trained judges and especially Supreme Court Justices are actually vastly better at objectively distinguishing right from wrong than most citizens and legislatures. Besides, if legislator used their own opinions or the opinions of the majority of their constituents to construct laws, then in fact we would be a nation ruled by men, not a nation ruled by law.

Or, lemme put it this way: I would prefer to be ruled by the judgement of Aristotle qua justice dispensor, than to be ruled by the law of France. What you're forgetting is that we plainly don't have objective law ruling us right now.

[The Wrath]

But why does the rule of law need to be upheld. Is "the law" man's moral primary -- most important is upholding the law, no matter what it is? If you think that some laws are so unjust that they must be broken, what is the nature of those laws -- especially, what distinguishes law that are unjust but should be obeyed, versus ones that are unjust and should be broken? There has to be some rational identifying characteristig of the two kinds of unjust laws.

Perhaps I should rephrase, laws do not always have to be obeyed. There is nothing immoral about me speeding if I choose. But, the government should still enforce such laws because, if they do not, we live in a society of men, rather than one of the rule of laws. And if that happened, some laws would be enforced sometimes, by some law enforcement agencies, but sometimes not by different law enforcement agencies, or even by the exact same ones. This creates an atmosphere of uncertainty as to what the law is and a certain degree of anarchy.

As for how to distinguish between the 2: an unjust law that should not be enforced is one which significantly limits the ability for people to live in happiness. The Texas sodomy law did not. It was a minor inconvenience to a gay couple, and their lives would have continued normally after the incident was over. This law was unconstitutional, but laws with similar effects (that is, minor nuisances) are not.

"Prudence indeed will dictate the governments should not be changed for light and transient causes, and accordingly all experience hath shown that mankind are more disposed to suffer while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed."

--Thomas Jefferson

In other words, don't go from being a society of objective law to being a society of men just because a few pot-smokers might have to do some community service.

For any egregiously unjust law -- of the kind that you think should be broken -- there are better means of getting rid of such laws, such as the legislature. Doesn't that mean that no law should be broken, no matter how unjust?

I think I answered this by switching "obey" to "enforce."

Not exactly: I think that SCOTUS should rule based on what is just, and I also think that legislatures should only pass just laws.

But that's the problem. Not everyone will agree on what is just, and there has to be a way of objectively deciding what the law is. Clarence Thomas and Ruth Bader Ginsburg will practically always disagree. If they were both separate judges with their own individual jurisdictions, they would enforce different laws while overturning others.

Having SCOTUS always make 100% just rulings and have legislatures passing only laws that are 100% just would be nice, but it will never happen.

Possibly, except that trained judges and especially Supreme Court Justices are actually vastly better at objectively distinguishing right from wrong than most citizens and legislatures. Besides, if legislator used their own opinions or the opinions of the majority of their constituents to construct laws, then in fact we would be a nation ruled by men, not a nation ruled by law.

I really don't think we get anything better out of SCOTUS than we would if you put George Clooney and Chuck Norris on it. Clooney would in favor of the left-wing stuff and Norris for the right. How can you look at some of the things the courts turn out nowadays and say that the courts are better than the legislatures? It wasn't the legislature that introduced the "specter of condemnation," to quote O'Connor, over private property.

It is generally held on this board that bad philosophers are more evil than men like Hitler and Stalin, because it's philosopher's like Hegel that provide the necessary conditions for men like Hilter and Stalin to exist. Well, as the most intellectual branch of government, the courts can be seen as the philosophers...and it is the courts, deciding what is and is not the law, that empower city councils to steal a man's home. So, SCOTUS=Marx, New London city council=Stalin.

Or, lemme put it this way: I would prefer to be ruled by the judgement of Aristotle qua justice dispensor, than to be ruled by the law of France. What you're forgetting is that we plainly don't have objective law ruling us right now.

I'd agree, if all judges were likely to be rational and moral. But they are not. I'd rather have to put up with some minor inconveniences so that I can still live in happiness, knowing that my life is not subject to the arbitrary whims of a court. I know that we don't have objective law. I'm arguing that we should and that the courts are responsible for the fact that we don't have it...because they rule on their own conceptions of "justice," rather than what the law of the land plainly states.

[The Wrath]

That post took a while to type. No response from anyone?

[Captain Nate]

I'm no Constitutional expert, but I do believe that the Constitution does not forbid religiously-inspired laws. I also believe that it does not give us a right to privacy. Assuming that my interpretation is objectively correct, what should I have done if I had been the deciding vote of Roe v. Wade?

What had ALWAYS been done -- leave it up to the states to decide.

A "right to privacy" would mean that you had the right to act (privately) as you wish, engage in whatever voluntary business deals you wish to engage in, to keep your own money and not have to give it to the government or even tell them how much you have, you would not have to register for the draft, or serve involuntarily in the military, and they could never take away your private property. So clearly there is no Constitutional right to privacy.

I think that's a peculiar interpretation of the so-calle "right of privacy." I don't see how privacy rights would necesarilly be construed to extend to things that often occur in the public sphere, such as business exchanges. Now, the right to your own money, or free business exchanges, would be protected in the "right to contract", which the Supreme Court upheld in the Due Process Clause of the 14th Amendment during the Lockner Era (roughly the late 1800s to the New Deal), and was used to strike down onerous business regulations.

The court's abandonment of that right, while now resurrecting its reasoning for its questionable abortion holdings, is very weak indeed.

"The picking and choosing among various rights to be accorded 'substantive due process' protection is alone enough to arouse suspicion, but the categorical and inexplicable exclusion of so-called 'economic rights' (even though the Due Process Clause explicitly applies to 'property') unquestionably involves policymaking rather than neutral legal analysis." -- Justice Scalia

Edited August 17, 2006 by Captain Nate

[DavidOdden]

But, the government should still enforce such laws because, if they do not, we live in a society of men, rather than one of the rule of laws.

Does this mean that there are no laws so unfair or unjust that the government should not simply decline to prosecute violators of that law (or, police should decline to arrest violators)? It sounds to me as though you consider enforcement of the law to be a moral absolute.

As for how to distinguish between the 2: an unjust law that should not be enforced is one which significantly limits the ability for people to live in happiness.

We have one gay sex law as your example of a "conveniently unjust" law -- can you give a couple of other examples of what other rights violations you think would be acceptable by your convenience criterion? More important, could any law be so foul that it morally could not be enforced (and yet should be)? For instance "All female children of Jews born after January 1, 2007 are to be killed" -- were this a law, it must be enforced?

Anyhow, this discussion clearly underscores the problem that arises from having nothing resembling objective law. The whole "society of law and not men" shtick makes sense only if the laws are objective. Respect for law when the law is irrational is, itself, supremely irrational. And applying any law without a purpose is particularly irrational. Again, why should we obey and enforce laws, and don't tell me that we must live in a nation of laws, not men (that's question begging). Don't say "because otherwise it would be anarchy", since that too is question begging. When you look at the question of law and justice not from the perspective that The Law is a categorial imperative, but rather from the perspective of the actual (rights-protection and survival) reasons, then it becomes important what the content of the law is, and ultimately I think you should be able to see that clearly unjust laws should not be enforced. Possibly unjust laws, maybe, should be enforced.

[softwareNerd]

I'm no Constitutional expert, but I do believe that the Constitution does not forbid religiously-inspired laws.

I assume you mean that it does not forbid religiously inspired laws as long as they do not infringe on an individual's rights?

Apart from the religious issue, do you think the constitution allows legislation to be enacted that violates what Objectivists would consider to be legitimate individual rights? In other words, do you think that the flaws that brought us to where we are today come mainly from:

• the intent of the constitution; or,
  
• the ambiguity in the constitution,
  
• the incorrect interpretation of the constitution's intent
  

If the original intent of the constitution was flawed, then you're going to have a conflict as a judge. However, if the original intent was ambigous, you are just as well doing what is right. If it was not so much a question of ambiguity, but more a question of faulty interpretation, the just thing to do is to set things right.

Or, alternatively, are you speaking not so much of contradicting the constitution as you are of contradicting currently-accepted law. In other words, are you saying that we should not go back to the intent of the constitution, because that would rock the boat too much?

[The Wrath]

Does this mean that there are no laws so unfair or unjust that the government should not simply decline to prosecute violators of that law (or, police should decline to arrest violators)? It sounds to me as though you consider enforcement of the law to be a moral absolute.We have one gay sex law as your example of a "conveniently unjust" law -- can you give a couple of other examples of what other rights violations you think would be acceptable by your convenience criterion? More important, could any law be so foul that it morally could not be enforced (and yet should be)? For instance "All female children of Jews born after January 1, 2007 are to be killed" -- were this a law, it must be enforced?

Anyhow, this discussion clearly underscores the problem that arises from having nothing resembling objective law. The whole "society of law and not men" shtick makes sense only if the laws are objective. Respect for law when the law is irrational is, itself, supremely irrational. And applying any law without a purpose is particularly irrational. Again, why should we obey and enforce laws, and don't tell me that we must live in a nation of laws, not men (that's question begging). Don't say "because otherwise it would be anarchy", since that too is question begging. When you look at the question of law and justice not from the perspective that The Law is a categorial imperative, but rather from the perspective of the actual (rights-protection and survival) reasons, then it becomes important what the content of the law is, and ultimately I think you should be able to see that clearly unjust laws should not be enforced. Possibly unjust laws, maybe, should be enforced.

I'm not arguing for legal positivism. I am distinguishing between unjust laws that are minor inconveniences and unjust laws that ruin people's lives. Immigration laws ruin people's lives. Sodomy laws and laws against marijuana do not. It isn't that such laws are acceptable...but they are tolerable. Judging by the wording of Declaration of Independence, Thomas Jefferson agreed with me.

I don't see why my argument that not enforcing such laws results in a variant of anarchy is unfounded. If a nation does not enforce its laws, then the government loses the legitimacy it needs to enforce good laws.

I assume you mean that it does not forbid religiously inspired laws as long as they do not infringe on an individual's rights?

Apart from the religious issue, do you think the constitution allows legislation to be enacted that violates what Objectivists would consider to be legitimate individual rights? In other words, do you think that the flaws that brought us to where we are today come mainly from:

• the intent of the constitution; or,
  
• the ambiguity in the constitution,
  
• the incorrect interpretation of the constitution's intent
  

If the original intent of the constitution was flawed, then you're going to have a conflict as a judge. However, if the original intent was ambigous, you are just as well doing what is right. If it was not so much a question of ambiguity, but more a question of faulty interpretation, the just thing to do is to set things right.

Or, alternatively, are you speaking not so much of contradicting the constitution as you are of contradicting currently-accepted law. In other words, are you saying that we should not go back to the intent of the constitution, because that would rock the boat too much?

I think it is a combination of all 3. The last 2 make up the majority of the problems, I think, but I also do not believe the Founders of this country were perfect, and I believe that they made errors. The main error I think they made was about the Separation of Church and State. I don't buy the Pat Robertson-ish crap about how they were Bible-believing Christians, who prayed on their knees every night. But I also don't buy the idea that they were hardcore haters of religion who wanted the government to completely eschew religion in favor of a totally secular society. I believe they wanted men to be able to freely worship, and to avoid the establishment of a state religion. Beyond that, I do not believe that their intent was to keep religious influence out of the government completely.

Edited August 18, 2006 by Moose

[DavidOdden]

I'm not arguing for legal positivism. I am distinguishing between unjust laws that are minor inconveniences and unjust laws that ruin people's lives. Immigration laws ruin people's lives. Sodomy laws and laws against marijuana do not.

If I were a gay American, I wouldn't be at all affected by immigration laws but my life would be ruined by an anti-sodomy law. So I guess it depends on what's imoprtant to you. If there were a law requiring personal wealth over $5 million to be confiscated, it would not inconvenience me even a little since I'm not ever gonna have than much moola. Your "ruins lives" versus "minor inconvenience" is a pretty crude sieve, but still I don't see why that would matter since we're now talking about enforcement, and it seemed to me that you're claiming that all laws should be enforced, no matter what. How about a yes or no on that? If you're claiming that this "life-ruining" criterion is the line where such laws should not even be enforced, you need to explain what you mean by "ruins someone's life", for example do you mean "necessarily drives them to suicide"?

I don't see why my argument that not enforcing such laws results in a variant of anarchy is unfounded. If a nation does not enforce its laws, then the government loses the legitimacy it needs to enforce good laws.

Anarchy is the lack of any government. A government, especially a judicial system, which recognised manifest injustice and refused to enforce clearly unjust laws would be a Just Government. The difference between anarchy and a just government is that a just government does enforce just laws: with anarchy, there is no government, and no just laws, so of course they are never enforced.

[The Wrath]

The only thing inconenient about a sodomy law, is that you can't do it in public. You run virtually no risk of being caught in private. Immigration laws may not ruin your life, but they do ruin someone's. And, no, is the answer. I do not believe all laws should be enforced.

I'd have to give some more though to the topic of what qualifies as "ruining life," before attempting to answer that.

There are variants of anarchist theory in which government exists. Competing Goverments Theory, for example. Likewise, if you have a government that doesn't enforce its own laws, you might as well not have a government at all. Kind of like the UN. The UN comes up with all these resolutions, but fails to enforce any of them (unless it's against Israel, in which case they send peacekeepers). Saddam was defiant to the end, because he knew that the UN wouldn't back up its own resolutions.

[Jay P]

The only thing inconenient about a sodomy law, is that you can't do it in public. You run virtually no risk of being caught in private.

Anti-sodomy laws are not limited to public sex; they apply to private sex as well. So if one were advocating that all laws must be enforced, that would include laws against private sex.

And it isn't true that you run virtually no risk of being caught in private. That's what happened in Lawrence vs. Texas. They were caught in private, and if it hadn't been for the US Supreme Court overturning their conviction, they'd have been punished for it.

Laws against some kinds of sex; against all sex with somebody you're not married to; and laws against unmarried people living together, have less impact than they otherwise would because they are often not enforced. If they were enforced, they'd ruin many people's lives. Somebody who is advocating that all laws be enforced needs to think about the impact of these unjust laws if in fact they were enforced.

[DavidOdden]

The only thing inconenient about a sodomy law, is that you can't do it in public. You run virtually no risk of being caught in private.

I would be curious to know how many people were prosecuted for public sodomy. I suspect the number is very small: virtually all prosecutions were against private acts. But anyhow, in Lawrence, you (Moose) would only have two choices, as far as I can see. You could uphold the rule of law and say that any and all prosecutions of sodomy are proper; or you could uphold justice and strike down the law (leading to anarchy, eh?). What you could not do is modify the law so that the gravely unjust part is stricken and the rest of the law is upheld.

[The Wrath]

Anti-sodomy laws are not limited to public sex; they apply to private sex as well. So if one were advocating that all laws must be enforced, that would include laws against private sex.

And it isn't true that you run virtually no risk of being caught in private. That's what happened in Lawrence vs. Texas. They were caught in private, and if it hadn't been for the US Supreme Court overturning their conviction, they'd have been punished for it.

Laws against some kinds of sex; against all sex with somebody you're not married to; and laws against unmarried people living together, have less impact than they otherwise would because they are often not enforced. If they were enforced, they'd ruin many people's lives. Somebody who is advocating that all laws be enforced needs to think about the impact of these unjust laws if in fact they were enforced.

They apply to private sex, but the fact is that it's practically impossible to enforce. Thanks to the decision in Lawrence, the only way anyone can possibly be charged for having gay sex, in the privacy of their own home, is if the police have a warrant to search their home, with the explicit purpose of catching them having gay sex. Otherwise, it violates the "unreasonable search and seizure," provided for by the 4th Amendment. Thus, such a law is practically impossible to enforce.

And, once again, I am not advocating that all laws be enforced.

I would be curious to know how many people were prosecuted for public sodomy. I suspect the number is very small: virtually all prosecutions were against private acts. But anyhow, in Lawrence, you (Moose) would only have two choices, as far as I can see. You could uphold the rule of law and say that any and all prosecutions of sodomy are proper; or you could uphold justice and strike down the law (leading to anarchy, eh?). What you could not do is modify the law so that the gravely unjust part is stricken and the rest of the law is upheld.

I would have done exactly what was done, because I believe the Court reached the right decision. When I talked about it, I was pretending, just for the sake of this debate, that it had been decided on "right to privacy" grounds, which it wasn't in real life.

I admit that I am starting to see your point, however. New question: if the government won't enforce its own laws, how does it maintain its status as a legitimate authority?

[Captain Nate]

Moose, you're misreading Lawrence. It was not decided on search & seizure grounds, rather, it was decided that substantive due process (the due process clause of the 14th amendment) protects private, consensual sexual acts.

Edited August 19, 2006 by Captain Nate