Saturday, May 08, 2004

Sandefur weighs in:

And he does so while stressing the "originalism" of our claim more so than I have been doing. Perhaps I should too. I don’t want the fact that I make a big deal out of how parts of the Constitution are written in such broad and general terms, capability of “flexibly” fitting different times, or different generations to take away from the notion that government has no business proscribing wholly consensual sodomy is entirely consistent with government exactly as our framers envisioned it in 1776 or 1789. Well, over at Freespace, Sandefur does a better job of explaining how the general principles, conceived by our Framers and properly understood, do not countenance government proscription of wholly consensual sodomy:

Government is instituted to “secure these rights,” among which are the rights to life, liberty, and the pursuit of happiness. It does not exist to ensure that people, in the privacy of their bedrooms, are doing only things that Clayton Cramer approves of. Moreover, if it does the latter, then it is violating the rights that government is created to secure. The Declaration itself complains about “officers…harass[ing] our people,” and “arbitrary government,” and specifically repudiates Mr. Cramer’s belief that legislatures are “invested with power to legislate for us in all cases whatsoever.”

In short, the Declaration and the political philosophy behind it make clear that a just law is a law which protects the people’s natural rights: which “shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned.”

Without some proof that the state has the right to “protect” us from people having sex in the privacy of their own bedrooms, then, the state cannot lay claim to that power under the fundamental charter of our government—the Declaration—or under the Tenth Amendment, which only recognizes the powers which the Declaration conferred.


These principles are timeless; they are just as true today as they were in 1776. Jefferson and other founders desired a proper and consistent application of them. But there is the ideal world...and then there is the real world, which, often is far from ideal. And the world as it existed in 1776 or 1789 was far from the ideal one in which our Founders envisioned. Simply pointing out that people at that time countenanced sodomy laws does not mean that they are consistent with the ideals—with the original principles—that founded this nation, when as Sandefur points out, these laws appear to so greatly conflict with world where people have inalienable rights to “liberty” and “to pursue happiness,” as long as they don’t “pick the pockets” or “break the legs” of non-consenting parties.

I personally view the Lawrence decision as a broader, more consistent application of Jeffersonian ideals. This quote by Sandefur is spot on:

[B]ut it is also important to note that even if it was universal historical practice for American governments to illegalize private, adult, consensual sexual activity, that does not prove that this power is just. People ignore inconsistencies all the time, especially when these inconsistencies only harm unpopular minorities, such as slaves in the 19th century, or homosexuals today.

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