bj's gay porno-crazed ramblings

Tuesday, July 01, 2003
I must say, I am having a real hard time with the sentiment of the "i agree with the outcome, but I don't see privacy in the Constitution" that seems common in many of the blogs i read (or used to read - - hehe, just kidding!) regarding the Lawrence decision. And I will admit to a certain laziness today about putting together something cohesive that addresses this, but perhaps a few points can be made to get the handful of people who want to give this more thought something to go on.

  • "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. " - this is the 9th Amendment. Retained by the people - this means YOU, it's yours, it doesn't come from government, but is something that is yours. (And we form governments to help protect these rights) Rarely referred to, but very important in understanding our system - the idea that the INDIVIDUAL has rights, rights not necessarily spelled out in the Constitution (and the writings from this era point out to WHY the 9th was important, and why some were concerned about spelling out specific rights [Bill of Rights, the first 10 amendments] as it might give the impression that what was IN the Constitution would be all the rights the individual has). This week, the Supreme Court acknowledged that sexuality is part of that, one of the rights that a person retains, and without a rational reason, neither the Federal nor State governments can impede.

  • Judicial Review - guess what? that one's not in the Constitution either - the concept that the Constitution implicitly grants to the Supreme Court the power to invalidate any law that, in the Court's opinion, violates the Constitution - but those gosh-darned Justices just keep doing it!
  • LIBERTY - interesting that the Court in Lawrence didn't rely on the notion of a Constitutional Right to Privacy, but rather on Liberty - which, guess what??? it is in the Constitution! We see it in the 5th Amendment, and again in the good old 14th Amendment (one of my personal faves, the pertinent part here is that this basically makes the Bill of Rights applicable to the State governments - the relation between the individuals and the State) - No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
ok, i'll spare you links and discussion of Natural Law (for now), but conclude with these questions. What is YOUR concept of Liberty? What do YOU think the relationship between government and the individual should be? Of course there are many different views, and many folks can quite convincingly back up their arguments with logic, laws, etc. But too often I hear this notion of "let the democratic process take its course" which I fear relies more on a tactical argument (if the people feel the Courts have imposed their will, the legitamacy of those rulings are questioned) than a Constitutional one. Why should we be willing to accept the idea that my rights are dependent on my convincing other people that I have them? Why can't we make the argument that we all share certain inalienable rights - "my body, my self" as some used to say in the 70's - why is that a radical notion? It does seem to have a lot to do with folks' hang-ups about sex, that this "merely" pleasurable activity isn't something to get all up all in arms about. I don't have the energy to discuss the importance of one's sexual identity, sexual choices, sexual freedom, etc., but I don't think it's hard to grasp the notion that it is the business of the individual person, and not the governement. Liberty. Is that like just too french for folks to embrace?