It is rather amusing to read O’Brien’s response to my post.
Federalism allows for the autonomy of constituent units to the extent that their autonomy does not infringe on the authority of the central government. In neither case I cited is the authority of the federal government being infringed upon, as there is nothing in the Constitution that secures a right to sodomy or Darwin.
What is sad is that in all of this O’Brien excludes the most important component of liberty: the people. The issues being cited by him are not issues of the authority of the national government versus the authority of the state government, as they are in the recent medical marijuana case. They are the rights of the people versus the powers of the states. The fact that federal constitution explicitly limits all state governments in some ways does not mean that the federal government has exercised its central authority over the states. Instead it means that the people exercised their authority over government and established explicit protections for themselves.
Let me put it in simple terms. Federalism does not entail that states can ignore the rights of the people whether they are established in the US Constitution, state constitution, or retained by the people.
Cartwright claims that he is an advocate of federalism, but really he is an advocate of central government.
“Look, ma, I found an assertion!”
“Put that back, Johnny, you don’t know where its been.”
I guess that O’Brien considers me to be an advocate of central government because I strongly support individual liberty. The fact that I am a strong supporter of federalism, which I’ve mentioned both here and on PT, doesn’t matter. I guess that he must consider individual liberty to be in opposition to the interests of states and decentralization, which is scary but not uncommon. At least, that is how his blog reads to me so far.
I imagine that the phrase “states’ rights” was coined as an effort to counter individual rights. In my opinion, people who claim to be federalists in effort to oppose individual rights are not actually interested in principles of federalism, but rather in the principles of oppression. The double standard that they use is telling. For instance O’Brien argues that the people do not have the right to sodomy because it is not explicitly written in the US Constitution, and that a state has the right “to set its own cultural norms.” However, the constitution grants no explicitly written right to any state “to set its own cultural norms.” In fact, no where does the US Constitution grant any right to any state, and the Ninth Amendment specifically retains rights to the people and not the states. “States’ rights” people who take a “literalist” approach to constitutional law contradict themselves.
O’Brien goes on to declare rights versus powers a “useless distinction.” But it is actually a very important distinction to make. A power is the authority and ability to take some action, whereas a right is an entitlement to protection from such authority. There is a reason why some enlightened men once wrote, “to secure [the] rights [of men], Governments are instituted among Men, deriving their just Powers from the consent of the governed.”
The fact remains that anti-sodomy laws were on the books before, during, and after the Constitution was ratified and the text does not guarantee the right to sodomy.
There are also laws still on the books in Alabama providing for separate schools for whites and blacks. Being “on the books” does not make something constitutional. We are not England. Furthermore, the Texas Law that O’Brien looks to defend was only thirty years old. (Maybe he is like me and too young to remember the time when homosexuals weren’t singled out by law.)
The only thing that guarantees that “right” currently is the consensus of the Supreme Court, which is ephemeral.
The consensus of the Supreme Court has more authority on matters of constitutional law than anyone else, O’Brien and myself included. One can disagree with the consensus, but nonchalantly dismissing the authority of the Court can only build a foolish argument. O’Brien keeps refering to a “right to sodomy,” despite the fact that the Court in Lawrence v Texas didn’t find that such a specific right existed. Has O’Brien even looked at the Court’s decision? To make it easy, here is a sampling:
Early on they set the logic of the case:
We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. For this inquiry we deem it necessary to reconsider the Court’s holding in Bowers.
Some information about the “tradition” of sodomy-laws:
The policy of punishing consenting adults for private acts was not much discussed in the early legal literature. We can infer that one reason for this was the very private nature of the conduct. Despite the absence of prosecutions, there may have been periods in which there was public criticism of homosexuals as such and an insistence that the criminal laws be enforced to discourage their practices. But far from possessing “ancient roots,” Bowers, 478 U.S., at 192, American laws targeting same-sex couples did not develop until the last third of the 20th century. The reported decisions concerning the prosecution of consensual, homosexual sodomy between adults for the years 1880—1995 are not always clear in the details, but a significant number involved conduct in a public place. See Brief for American Civil Liberties Union et al. as Amici Curiae 14—15, and n. 18.
It was not until the 1970’s that any State singled out same-sex relations for criminal prosecution, and only nine States have done so. See 1977 Ark. Gen. Acts no. 828; 1983 Kan. Sess. Laws p. 652; 1974 Ky. Acts p. 847; 1977 Mo. Laws p. 687; 1973 Mont. Laws p. 1339; 1977 Nev. Stats. p. 1632; 1989 Tenn. Pub. Acts ch. 591; 1973 Tex. Gen. Laws ch. 399; see also Post v. State, 715 P.2d 1105 (Okla. Crim. App. 1986) (sodomy law invalidated as applied to different-sex couples). Post-Bowers even some of these States did not adhere to the policy of suppressing homosexual conduct. Over the course of the last decades, States with same-sex prohibitions have moved toward abolishing them. See, e.g., Jegley v. Picado, 349 Ark. 600, 80 S. W. 3d 332 (2002); Gryczan v. State, 283 Mont. 433, 942 P.2d 112 (1997); Campbell v. Sundquist, 926 S. W. 2d 250 (Tenn. App. 1996); Commonwealth v. Wasson, 842 S. W. 2d 487 (Ky. 1992); see also 1993 Nev. Stats. p. 518 (repealing Nev. Rev. Stat. Â§201.193).
In summary, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger indicate. Their historical premises are not without doubt and, at the very least, are overstated.
And from the conclusion:
The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. “It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.” Casey, supra, at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.
The Court did not find that there existed a particular right to sodomy, but rather that homosexual sodomy like other sexual practices between consenting adults was included in the right to liberty and the state of Texas had no interest to intrude. Shouting, “states’ rights” is not a damaging response to the logic of the Court. Now if O’Brien wants to continue to argue against the decision, he will need to argue against liberty, not an easy task. O’Brien continues,
I imagine the rep. from Alabama would argue that supporting something the citizens of Alabama find morally objectionable with their property (i.e., taxes) violates that mandate.
Well for starters, the assumption that the citizens of Alabama find these books morally objectionable is not supported. I know of no referendum on the subject. Secondly, I know of no section of the Alabama constitution that protects citizens from public funding of “morally objectionable” material. (Yes, I did spend some time today looking at the ‘Bama constitution.) I’d be interested if O’Brien can find one.
Is it me or is O’Brien pulling arguments out of his ass without any support behind them?