Clayton Cramer responded to my post on the 9th Amendment:

You can read it here.

First he quibbles with my observation that the “sodomy question” is specifically unanswered by the text of our constitution:

It's the same text that gives the states authority to outlaw murder, obscenity, price-gouging (for intrastate commerce), diploma mills, and thousands of other acts that the the states prohibit, and for which there is no specific authorization. Amendment X:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

When I said the question is “specifically unanswered” by the Constitution, I was talking in very literal terms. That is, the Constitution specifically tells us that the President must be 35. But the word “sodomy” is not mentioned in that same sense; if it were, we wouldn’t be having this debate. Therefore, this question must be answered by applying a controlling general provision of the Constitution to this specific circumstance. Cramer argues that such provision is the 10th Amendment’s power of the states to outlaw various type of conduct. But it’s entirely possible that another general provision of the Constitution—the 14th Amendment’s Privileges or Immunities Clause—actually prevents the states from enacting sodomy laws. But neither clause specifically mentions the word “sodomy” (or “abortion” or “contraception,” etc.).

Cramer writes further:

Note that Amendment X doesn't say "rights...are reserved to the States respectively, or to the people." You might then be able to argue that the right to sodomy (or any of dozens of other actions) is "reserved... to the people." It says "power"--a power of the people to pass laws, directly, or through their representatives, sitting as state governments. Clear enough?

Cramer shows where his loyalties lie—not to “rights” of individuals, but rather to the “power” of legislative majorities to pass laws that bind minorities. But our framers demonstrated far more concern for individual rights than Cramer et al. Specifically they believed in natural rights that no government—federal, state or local—may properly infringe. And Barnett argues convincingly that the 9th Amendment’s unenumerated rights referred to such natural rights. Now I know it can be argued that the 9th Amendment binds only the federal government, and otherwise had nothing to do with limitations on state government power. But we can leave this aside. The 14th Amendment’s Privileges or Immunities clause refers to these same natural rights and this Amendment clearly DOES bind state and local governments.

These natural rights are not just enumerated, they are so vast that they are literally unenumerable. Barnett’s book has scads of quotes from founders demonstrating this.

James Wilson, a member of the Constitutional Convention, put it this way: “a complete enumeration of rights appertaining to the people as men and citizens….Enumerate all the rights of men! I am sure, sir, that no gentleman in the late Convention would have attempted such a thing.” p. 56.

Supreme Court Justice James Iredell stated: “Let any one make what collection or enumeration of rights as he pleases, I will immediately mention twenty or thirty more rights not contained in it.” p. 57.

There are many, many others. This sets the stage for Barnett’s later claim that the Constitution has what’s called a general presumption of liberty, that whenever the government infringes upon any liberty, it must justify its actions by demonstrating that it is acting pursuant to a recognized legitimate government function, and these are few in number, (and that most of these so called "morals legislation" don't cut it).

Next, Cramer argues that the “core meaning” of the Tenth Amendment at the time of its Framing again controls on this issue:

But what is the "core meaning" that the Tenth Amendment had at the time? The federal government has certain limited powers (which have been stretched beyond all recognition since); the state governments have all other powers not otherwise restricted by either the U.S. Constitution, or the state's constitution. The people are, within these constraints, sovereign. They are free to pass all sorts of laws as they see fit. In many cases, they have passed laws of unsurpassed brilliance and unsurpassed stupidity.

But the 14th Amendment’s Privileges or Immunities Clause did intend to restrain the states from violating those same unenumerable natural rights that the 9th Amendment refers to. This trumps the 10th Amendment claim that states are “are free to pass all sorts of laws as they see fit.”

We now start to get into my claim, that many of these “general” provisions of the Constitution, although they do have an original meaning that must be adhered to as a general guide, were intended to be “flexible,” to change with not only increases in technology, but also changes in attidutes:

Changes of attitudes? If there has been this great change of attitude to which Mr. Rowe refers, then the sodomy laws would all have been repealed. Some states did so; Texas had not, neither had Idaho. What Mr. Rowe really means is that judges have rethought the merit of these laws, and imposed their view onto the people of every state, with no basis in law but blind power grabbing.

Well all but 13 states did repeal their sodomy laws. I’d say that’s a pretty big change in attitude. And no, judges did not impose their view on the “people” of every state. Judges guaranteed the people of every state the liberty to have oral and anal sex within the privacy of their own homes. Bear in mind that 9 of those 13 states had sodomy laws that applied to heterosexuals as well. And since statistics show that some 90% of sexually active heterosexuals have oral sex (yes—this constitutes “sodomy” in those states where such laws apply to heterosexuals), this decision liberated the masses of folks in those 9 states that had such laws on the books. Most of them probably didn’t even know it.

In terms of "the basis in law," it's the natural right to liberty—one of the “immunities” of the 14th Amendment.

And as Randy Barnett has recently blogged concerning whether judges are “imposing their view onto the people,” acting as a super-legislature: “[I]t is simply a mistake, but an all-too-common one, to equate legislative power over the citizenry with judicial power over legislatures….This error results from unrealistically equating a majority of a legislature with the people themselves, an error the framers of the constitution were careful to avoid. A principal object of the Constitution was to protect the people from legislative majorities, indeed from popular majorities, when motivated by passion or of interest adverse to the rights of their fellow citizens (paraphrasing Madison in Federalist 10). Judicial nullification was thought to be one check among others. The only concern expressed during framing and ratification debates about this check is that it would be too weak, as indeed it has been.”

Next, concerning whether the framers really gave much thought to “sodomy” Cramer actually digs up an email I sent to him from February 24th about Jefferson and sodomy laws! (I have to admit, I am impressed that he saved this). The context of this letter is that Jefferson penned a criminal statute for VA where he deals with many issues, among them, buggery & sodomy. I explained that under the common law, “sodomy & bestiality” were considered “unnatural equals,” that is, they were both different “species” of the same “genus,” “buggery.”

But Jefferson decriminalizes bestiality, but doesn’t do the same with sodomy. From Jefferson:

"Bestiality can never make any progress; it cannot therefore be injurious to society in any great degree, which is the true measure of criminality in foro civili, and will ever be properly and severely punished, by universal derision. It may, therefore, be omitted. It was anciently punished with death, as it has been latterly."

Keep in mind that Animals don’t have “natural rights,” that is, it’s perfectly okay to enslave & slaughter animals (but not humans). Thus, having sex with an animal does not violate its rights; violating an animals (non-existent) rights cannot serve as the grounds for proscribing bestiality in a “natural rights” society. From my email:

But [Jefferson] doesn't do the same [decriminalize] with sodomy, instead he groups sodomy with rape. Now what on Earth would justify decriminalizing bestiality and not sodomy, even though he cited them as equals, as different "species" of the same "genus"? The only answer that I can think of is that sodomy can sometimes be done to violate the rights of non-consenting parties, and the same thing cannot ever be said of bestiality. Indeed, in the history of prosecuting sodomy laws, they were more often than not invoked to prosecute non-consensual sodomic acts. That would justify a connection between sodomy and rape.

To which Cramer responds:

So it appears that Jefferson did spend some time thinking about this--and proposed to keep the sodomy laws. Actually, Jefferson being something of a liberal, proposed to reduce the penalty for sodomy to castration. To the extent that sodomy prosecutions were associated with non-consensual sodomy, it was because few people committed consensual sodomy in public places--it was, after all, a capital crime in most states at the time.

I think my above paragraph answers this. Is there a sane person living today who can argue that homosexual relations are worse than bestiality? If we were to compare three behaviors, 1) heterosexuality, 2) homosexuality, and 3) bestiality, is there a person on Earth who possesses an ounce of logic who wouldn’t conclude that homosexual relationships are more analogous to heterosexual ones than to bestial ones? My point was that if Jefferson, applying the same natural rights principles that led him to decriminalize bestiality, were to properly apply them to wholly consensual sodomy, he would decriminalize this as well. That he didn’t so makes me conclude that sodomy laws had utility and “fit” his natural rights ideals by being used against non-consensual sodomic practices. If Jefferson would not conclude that wholly consensual sodomy should be decriminalized, but bestiality should, then I’d argue that he would be misapplying his principles & ideals.

Moreover, that Statute that Jefferson drafted, although he did mix his ideals into it, is by no means a perfectly ideal Jeffersonian criminal code in a first best Jeffersonian world. It was in fact, as Timothy Sandefur notes, “a revision of a preexisting legal code, and which was written in order to pass a legislature full of men who were not exactly in line with him intellectually.”

For instance, this is how Jefferson deals with some “supernatural issues” in the code: “All attempts to delude the people, or to abuse their understanding by exercise of the pretended arts of witchcraft, conjuration, enchantment, or sorcery, or by pretended prophecies,” is punished “by dunking and whipping, at the discretion of a jury, not exceeding fifteen stripes.”

Anyone with a strong knowledge of Jefferson’s personal beliefs knows that he regarded such supernatural beliefs as illogical and absurd.

Jefferson was not someone who believed that “Truth” was historically determined; he believed in universal principles of Truth applicable everywhere to every time based on man’s use of his reason. But he also realized that as time goes on, our opinions would change, and that we would, through gathering more knowledge and rethinking our ideals, come to conclusions that radically differed from those the people had in 1789, just as the “knowledge” of liberal democracy radically differed with the “erroneous” conclusions of those who posited “divine rule of kings.”

From Jefferson:

[L]aws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the same coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.

Okay, enough for now. I'll have to handle issues relating to Brown v. Bd. of Edu. later when I have more time.

So what are we left with? The Founders did believe in unenumerable natural rights that bind both the federal government through the 9th and the states through the 14th. They were so vast that they rightly give rise to a “presumption of liberty,” that is, anytime a government wishes to pass a law it must be justified as a “legitimate government function.” Cramer et al. might be willing to go this far (or might not)—but they would probably argue that whatever is a “natural right” must have been understood to be one, at the time the relevant constitutional texts were enacted. I see no evidence that the framers intended to “lock us in,” to their 1789 or 1868 mindset regarding how they, back then, might have derived such a “specific answer” from a general clause (and it didn't seem, based on my Jefferson quote, that he desired this). One reason why the constitution has lasted so long and not become obsolete is because they used broad language such as “make no law abridging the freedom of speech.” If the founders intended to provide specific answers to all of these questions, they would have written them into the text (and in some cases, they did). Instead they intended later generations to figure these things out, as is appropriate for the people living at that time.