24 April 2003
The last Santorum piece (I hope)
(I beat dead horses; I don't sleep with them.)
I liked this Kevin Holtsberry observation:
Obviously we can ban bigamy, polygamy, and incest without making adultery illegal because we are doing it right now.
What Santorum has done, in typical GOP fashion, is to create a controversy without touching on the central issue involved. The issue is not whether the Supreme Court views state laws banning consensual acts as unconstitutional but whether the Texas law is an overreach by state government at the expense of people's rights.
Just so. It would be nice for the Supremes to decide once and for all whether these things should be regulated; it would be even nicer if Texans (and residents of other states with similar provisions) would look at their law and ask "Do we really need this?"
If I don't seem particularly blue, it's because I'm not holding my breath waiting for either of these to happen. Posted at 12:26 PM to Political Science Fiction
People seem to confuse morality with legality. The SCOTUS determines the latter. Santorum was absolutely correct. If the SCOTUS decides that states cannot impose a moral code onto consenting adults, it will effectively mean that consensual polygamy and incest cannot be banned any more than sodomy or oral sex could.
As a libertarian, I happen to agree that sex between consenting adults should not be subject to government regulation. I would legalize all three.
However, I digress. Santorum is absolutely correct that proponents of striking down sodomy laws need to be prepared to 'take the good with the bad' so to speak.
The thing that bothers me is the presumption that it's the Supreme Court's job to decide things like this either way.
Are Sodomy laws unConstutitional? Or are they merely odious? Because the SCOTUS' job shouldn't be to decide whether or not they agree with anti-Sodomy laws. It should be to decide whether state legislatures have a Constutitional right to have stupid laws if they want them.
Personally, as a libertarian, I would rather the S.C. NOT strike down such laws, because I don't want the Supreme Court simply deciding higgledy piggledy to strike down any law that strikes its fancy simply because it doesn't like it.
That's the democratic process' job, no?
With regard to the Texas law, it should be presumed, absent evidence to the contrary, that this is what Texans actually want. If there is some genuine Constitutional basis for slapping it down I seriously doubt that the interstate-commerce angle can be invoked then let it be slapped. But I don't see five votes to do so.