Sandbagging Burke

I think the other side had the better stories regarding stem cell research. The problem is that this general debate between utilitarianism and natural law is not going to abate with new bioethics issues coming to the forefront of debate.

I'm sure the neoconservative wing of the party will (and has) try to pin the Republican's woes upon social conservatives. The problem, of course, is the problem with our little imperial conquests in the middle east.

Brooks fundamentally seems to think that the function of conservatives is to be cautious liberals, sanding off the edges to make the radicalism of the left more conducive and acceptable to the general population.

Rombald--I don't think you need to be a full monarchist to be a traditional conservative. An aristotilean conception of society is conservative in some sense, but it does not need to monarchist. You are right however, that the debate within the U.S. is between classical and modern liberals.

What is wrong with Ron Paul? He seems to have the grassroots support and he was an OB-GYN and against abortion. I am not sure why he has the greasroots support and that's something to ceheck out.

I think I like him -

Twenty years ago there was a massive controversy over recombinant DNA. Now insulin is made with it, along with other medications and no one blinks an eye. You may talk bioethics all you wish, but the moment a major cure comes from stem cells, all the moral objections to it will not even be a grease spot under the truck tires.

I think we can safely say that if Edmund Burke were alive today, he wouldn't be clamoring for Federal funding of stem cell research.

That said, the Brooks column is a total red herring. To the extent conservatism is in decline at the moment, it is because it's identified with Bush Republicanism, a.k.a., the disastrous war in Iraq. In the immediate aftermath of 9/11 and through the 2004 elections, conservatives like Brooks were toasting the conservative ascendancy. Now they are looking around for explanations for the decline, while carefully avoiding the elephant in the living room.

There has been no tectonic shift in public opinion away from social conservatism or free market economic policies. There HAS been a widespread recognition that invading Iraq was a monumental mistake, accompanied by disillusionment with "conservative" leaders who insist on a Stay-the-Course policy with regard to that war. THE PROBLEM IS IRAQ, and more generally the neoconservative embrace of Wilsonian stupidity in foreign policy. Attempts to point the finger elsewhere (stem cell funding, Terry Schiavo, deficit spending, minor congressional scandals) are nothing more than pathetic diversionary tactics.

How far do you go with conservatism? Burke was actually a Whig, albeit of the Old Whig faction (pro-USA, but anti-French Revolution). Full-blood conservatism should be High Tory: monarchist, establshed church, no-ideas-above-your-station, etc.

I keep waiting for Rod to discover the English Wendell Berry, C. H. Sisson (1914-2003), a poet and essayist who was never properly
appreciated, Sission was a true Tory who had no use for modern Conservatism and who dismissed Burke as a typical Whig. See his *The Avoidance of Literature.*

As a critic noted, Sisson was "a Tory in the Johnsonian sense: 'One who
adheres to the ancient constitution of the state, and the apostolic hierarchy of the Church of England.'"
http://www.carcanet.co.uk/cgi-bin/scribe?showdoc=15;doctype=biography

In that sense, though, Rod is no American Tory (even putting aside the Anglicanism). Larison is however, even though our historical "Tories" (Loyalists in the American Revolution) had no use really for his kind of celebration of social stratification.

But as a conservative, I found the Terry Schiavo ordeal upsetting, in that some self-proclaimed "conservatives" were calling for a greater role for the federal government.

Perhaps so, but my point is that politically the recent decline of conservative and Republican fortunes haven't been caused by Schiavo, or Congressman Foley, or the federal deficit, or any of a host of other reasons commonly given by the cognoscenti. Take away Iraq, and all those things are ephemera.

The attempt to blame anything other than Iraq for the current waning of conservatism is scapegoating by those who still refuse to acknowledge that "National Greatness Conservatism" is a failed idea.

Simon,

I think you've got it backwards, or, maybe better, it's both-and: that is, Republican fortunes have been sliding (not necessarily conservative fortunes!) not only because of Iraq but also because of (1) scandals involving Foley (I'm convinced he's the chief reason the GOP lost so many house seats; (2) individual senate upsets (George Allen wouldn't have lost Virginia without the Macaca Moment, I think; Montana too was decided by local, not national, issues, and that only by several thousand votes); and, most importantly,(3) a disavowal of fiscally conservative policy and practice.

On this last: I chortle when I hear people talk about Bush as a "conservative" or the GOP as a conservative party. In terms of fiscal discipline and size-of-gov't issues, Bush and the GOP of 2000-2006 have been disastrous. So, I think Republican fortunes are down for many reasons and for good reasons: Iraq, Bush's many many many failings, Republican scandal, and Republican inability to govern. I'm convinced that if someone stood up and actually articulated conservative principles they'd win the presidency.

Just my .02. Wouldn't pick any of these hills to die on, but it's how I see it.

I think the problems in Iraq are the all encompassing problem. With that said, I also think there is something to be said for the fact that the pile on of Congressional corruption was also a factor. After twelve years in power, the Republicans had thoroughly become prone to the same diseases which they were supposed to replace. Perhaps the stars aligned.

There is something to be said for the Santorum situation. I am a supporter of the man, but I think that a particular interview he did about homosexuality was well, severe, and certainly imprudent for a politician. It cost him, and he could have opposed homosexual marriage without making the analogy to animal sex and pedophelia. He was trying to provide commentary on the limits of tolerance, which is legitimate, but the analogy was not even good, and for a politician it was highly imprudent.

Weemaryanne--say something substantive and perhaps someone will answer your question.

Bush !!! What a Disaster !!!! His Legacy is set in Stone !!!!!

Simon:

I've never understood this legal theory in any way, shape or form.

Because of the right of privacy is that all-expansive, all of those things could theoretically be allowed anyway, regardless of questions of gay rights.

Right?

"Huh?

Santorum didn't compare homosexual marriage to animal sex. He pointed out -- correctly -- that if the Supreme Court established a constitutional right to engage in homosexual activity based on the amorphous "right to privacy" then there's no logical reason why supporters of bestiality, polygamy, or (adult) incest couldn't claim the same right. The court might decline to extend the "right to privacy" to such conduct, but to do so it would have to draw arbitrary lines based on no constitutional or legal principles -- which is the job of democratically elected legislatures, not courts.

On that point, Santorum was exactly right. "

Well--he's right on polygamy. Bestiality and incest are quite different, mostly because bestiality is non-consensual and the incest link is tenuous.

I don't agree with the right of privacy, but like it or not, Santorum shot himself in the foot with that point.

Well--he's right on polygamy. Bestiality and incest are quite different, mostly because bestiality is non-consensual...

Um, animals don't have legal or constitutional rights, per se. I mean, our laws afford them protection but those laws aren't grounded in any idea of their inherent natural rights or even the common law of tort. It makes no sense to apply a legal concept like consent to a non-rational being.

the incest link is tenuous.

How so?

What of the German brother and sister fighting the German incest law?

"If the legislators are okay with gay relationships, they can legalize them without the need to permit polygamous, bestial or incestuous ones.
... In the case Santorum commented on, the Court had been asked to (and ultimately did) create an entirely new constitutional right to engage in homosexual activity based on the Court-invented 'right to privacy.'"

Simon:

Give me some credit for understanding the theory of judicial activism and the right to privacy/the right to legal abortion. I had to learn it 20 years ago as a teen-ager when Robert Bork said in his personal opinion, states should have the right to ban birth control.

My question remains -- why does GAY conduct (I assume you're referring to Lawrence v. Texas) make the difference whether polygamy, bestiality, etc. are allowed? If your legal theory is correct, they would be anyway, **without** Lawrence v. Texas.

(You also seem to be curiously overlooking the judicial enforcement extremes of both Lawrence and Bowers v. Hardwick -- i.e., that in both cases, police were looking to arrest people, in the, well, privacy of their homes, for being gay and ONLY for being gay. There were/are 4th Amendment issues as well as 14th Amendment issues.)

(You also seem to be curiously overlooking the judicial enforcement extremes of both Lawrence and Bowers v. Hardwick -- i.e., that in both cases, police were looking to arrest people, in the, well, privacy of their homes, for being gay and ONLY for being gay. There were/are 4th Amendment issues as well as 14th Amendment issues.)

Fourth Amendment issues belong in a separate discussion, since they have no direct bearing on whether there is a constitutional prohibition on sodomy laws.

However, your recollection of the facts in Lawrence and Bowers is incorrect. In both cases, police entered the homes for other reasons (in Bowers to serve an unrelated arrest warrant; in Lawrence to respond to a third party allegation of violence involving weapons). Whatever the merits of the police searches, the existence of probable cause was not at issue, and neither case turned on Fourth Amendment issues.

If they HAD turned on Fourth Amendment issues, by the way, the Court could not have held (as it did in Lawrence) that sodomy laws are unconstitutional.

If by polygamy we actually mean 'more than two partner sex', then I think a case can be made people should, indeed, have a constitutional right to engage in that without the government counting the number of people in a bed.

If you think people should have a constitutional right to polyamorous sex, then the burden is on you to amend the Constitution and put that right in there. "We the people" have never agreed to such a right. Therefore, while a legislature is fully entitled to legalize such activity, a court is not.

The great fallacy of the "living constitution" idea is the assumption that because hardly anyone favors criminalizing a certain thing, that thing must be a constitutional right. The corrolary is the assumption that we can trust the wise solons of our judicial branch to keep the constitution adjusted to society's consensus values without going to the bother of making amendments.

That's not how democracy works. As Abraham Lincoln put it in his First Inaugural Address:

"the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal."

How far do you want to take your laws? Why stop at consensual sex between adults? Why not tackle masturbation, taking the Lord's name in vain, gluttony and pride? If you have the courage of your convictions, "We The People" did not establish rights to engage in these other sinful behaviors. For that matter, I have something to say about nose-picking. It absolutely disgusts me. There oughta be a law ....

It amazes me that some folks can't grasp the elementary distinction between that which is legal because most/all people want it to be, and that which is a constitutional right and therefore couldn't be prohibited even if the vast majority of people wanted to prohibit it.

As far as I'm aware, no one (now or at any time in the past) has advocated criminalization of masturbation, gluttony, pride or nosepicking. That means you are legally free to masturbate, eat like a pig, be proud as a peacock, or pick your nose, and no one is challenging that. It does NOT follow, however, that you have a Constitutional right to do any of those things.

If you think there ought to be a law against nosepicking, you should run for the legislature or petition your representatives to enact one. Most likely the passage of such an idiotic law would result in the approving legislators losing their seats or repealing the law. THAT'S how our system of government is supposed to work.

But automatically running to the courts to seek redress for every unpopular law undermines representative government and the Constitutional system.

" the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal."

Then what the heck was the purpose of the third branch?

And maybe some US citizens equally need to stop confusing "the Bible says this is wrong" with "we should arrest and prosecute people who don't adhere strictly to all the proscriptions of the Bible".

Truce?

Amendment 9 - Construction of Constitution. Ratified 12/15/1791.

The enumeration in the Constitution, of certain rights, shall not be construed to DENY or DISPARAGE others retained by the people.

The enumeration in the Constitution, of certain rights, shall not be construed to DENY or DISPARAGE others retained by the people.

Your point being that you suppose that by ratifying the Bill of Rights in 1789 the people intended to retained a right to, e.g., abortion, sexual activity outside of marriage, same-sex marriage, etc.? That certainly would have been a surprise to James Madison and company.

Simon, you're kicking some serious booty here. It's a case of Ph.D. vs. preschool.

Amendment 10 - Powers of the States and People. Ratified 12/15/1791. Note

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.

If you think people should have a constitutional right to polyamorous sex, then the burden is on you to amend the Constitution and put that right in there. "We the people" have never agreed to such a right. Therefore, while a legislature is fully entitled to legalize such activity, a court is not.

I meant 'should' as in, if it was ever outlawed and a case went to court, the Supreme court 'should' logically find it's unconstitutional to prohibit that. If the government cannot forbid Person X and Y from doing A, or X and Z from doing B, than it would seem illogical it could forbid X and Y from doing A while X and Z do B.

And, speaking 'things the founding fathers didn't expect'...let's recall they didn't expect it would ever be possible to outlaw specific sex acts, as they didn't have any sort of surveillance equipment to intercept conversations or record videos or any way of finding out what was going on behind closed doors. Or the medical ability to determine that people had had sex, much less whom with.

And they hadn't ever heard of a 'no-knock warrant', either, so don't think they could have just busted in on them them in act if they'd gotten enough evidence and a warrant. And remember that, in their mind, peeking in windows was a 'search', the 'plain sight doctrine' didn't exist either. And there were no 'secret warrants', so even if you got a warrant to look in their window, they'd have to serve it to them first.

So, to recap, you can't overhear them talking about sex. You can't catch them in the act unless they're stupid enough to do it in a public place. Unless they're stupid enough write it down, or continue it after they'd been served a warrant, they're safe.

Can you come up with any possible way, under the abilities of 1796 (using actual standards of evidence), to charge and convict someone of homosexual sex?

The whole point of 'unenumerated rights' isn't entirely based on what a government should and should not do. Some of them weren't enumerated because no one ever thought the government would gain the ability to violate them!

This includes almost all consensual 'between-friend' acts, as there was literally, in their time, no way to catch two people who knew each other from violating the law in private, especially if this violation produced no physical evidence. (As opposed to things like prostitution, which requires prepositioning strangers and can be caught by pretending to be one of the parties. Which, incidentally, is how they managed to make arrests in the anti-homosexuality stuff in the 50s...they got gay men to solicit them.)

If you want to rewind the Constitutional back to how it was interpeted back than, I demand you rewind 'search and seizure' back to then, also. The founding fathers didn't foresee the police being able to use wiretaps and electronic surveillance, even with warrants. And they hadn't even heard of serving a warrant without informing the people you were serving it on, right then and there.

Fair enough that a federal law criminalizing sodomy is unconstitutional. Such a law would be wholly beyond the enumerated powers of the federal government. But prior to the 14th Amendment there was no conception under the Constitution of the feds defending individuals against predations by the states. Except to the extent a state was engaging in something properly left to the federal government under the terms of the Constititution, the states could do whatever they want. Obviously, the 14th Amendment changes things, but the extent of that change is not entirely clear. And won't be clear until the Supreme Court decides it's clear. But even if the Supreme Court eventually decides that Larry Craig has a substantive due process right to his peculiar bathroom etiquette, that hardly means that the good senator always had that right. It just means he has it on and after that particular decision. Incidently, this sort of perverse jurisprudence cuts both ways. If the power of the Supreme Court is limited only by their imagination, I suppose they could argue that the Constitution forbids private acts of sodomy. I'm not sure how they could argue that, but they've proven to be a very creative group of people.

"All sex acts of whatever variety are Constitutional. But they might be illegal in a particular state."

LIAF:

So you personally deny the "due process" and "equal protection" clauses of the 14th Amendment? Because that is the only way your stance works logically (never mind that current precedent opposes you).

PS -- Do you believe it is legal to ban birth control?

Larry, the 14th Amendment isn't a matter of belief. Read the words for yourself.

I accept that the Supremes have ruled there are "substantive" due process rights. But that concept has been imported into the 14th A because precedent made it difficult to analyze individual rights as privileges and immunities. As to whether sex acts of any sort would have been P&I of US citizenship, I have my doubts. As you can see by reading the text of the amendment it only offers protection against procedural defects (i.e., due process of law is required to deprive someone of liberty, but the 14th A does not prohibit the deprivation). Under a plain reading of the amendment criminalizing anything across the board will not raise an equal protection argument, because the law is the same for everyone.

So I don't think there is any need to ignore the words of the 14th A to come to the conclusion that birth control, various sex acts, and the wide variety and bizarre things that folks might do in private, are not contemplated within the protections of the 14th A. Rather, that conclusion is required if one relies only on the text of the amendment.

I am open to the argument that P&I may generally refer to human rights, given that there is pre 14th A precedent the P&I covers those sorts of freedoms. Although the conclusion of such an argument is more likely that abortion is unconstitutional than that sodomy is constitutionally protected. Which is probably why it's fashionable to rely on substantive due process since it means whatever the court says it means.

The point of all this is not that sodomy will not be protected by the court. I'm sure it will. It's just that claims that the 14th A protects sodomy are grossly ignorant. The defenders of sodomy should be more gracious winners and admit sodomy will be protected not because of the 14th A, but because the court likes sodomy. I'll leave to you whether you think it's a sound policy that the words of the Constitution can change, not through the difficult process of amendment, but through the swing vote of a justice.

And, by the way, I don't mean to just pick on sodomy or focus on bizarre sex acts. There are lots of things I enjoy doing that could be criminalized by state or local government without raising a legitimate Constitutional issue. Drinking beer, driving a car, smoking cigarettes, gambling, etc.

"The enumeration in the Constitution, of certain rights, shall not be construed to DENY or DISPARAGE others retained by the people.

'Your point being that you suppose that by ratifying the Bill of Rights in 1789 the people intended to retained a right to, e.g., abortion, sexual activity outside of marriage, same-sex marriage, etc.? That certainly would have been a surprise to James Madison and company.'"

That may be in the case of James Madison and during his time, but not to any modern day American here and now -- and after 30 years of "retaining that right" via the dreaded "legislating from the bench" (or whatever means as that part of the constitution is silent on just how that retention occurs) and the fact that that language IS contained in our constitution, it will probably be part of an argument as "continuing" the right.

IOW, we have had that right (although not enumerated back then, yet "retained" at least in our lifetime), and per that language, tends to support a right, not repeal one.

That argument would probably be encompassed within privacy rights. Both state and federal.

No authoritative connotation meant mind you, just an opinion. No legal conclusions here.

That may be in the case of James Madison and during his time, but not to any modern day American here and now -- and after 30 years of "retaining that right" via the dreaded "legislating from the bench" (or whatever means as that part of the constitution is silent on just how that retention occurs) and the fact that that language IS contained in our constitution, it will probably be part of an argument as "continuing" the right. IOW, we have had that right (although not enumerated back then, yet "retained" at least in our lifetime), and per that language, tends to support a right, not repeal one. That argument would probably be encompassed within privacy rights. Both state and federal. No authoritative connotation meant mind you, just an opinion. No legal conclusions here.

There are no legitimate Constitutional rights whatsoever unless at some specific point in time, "we the people" decided to put them in the Constitution.

Obviously, with regard to abortion, gay marriage, pornography, etc., that has never happened. Not only are such matters not addressed in the U.S. Constitution, but there isn't even anything close to societal consensus on them. Conduct that has been ordinarily prohibited by law since the founding of the United States -- in most cases, continuously and without opposition -- is now claimed by private litigants to be protected by vague and unenumerated "rights." This isn't representative government, and it has nothing to do with the Constitution.

Simon read what it says, or rather what it does not say, there is no mention that it must already be enumerated, as that would defeat the purpose of the amendment -- as the amendment states:

"The enumeration in the Constitution, of certain rights, shall not be construed to DENY or DISPARAGE others retained by the people ..."

It does NOT say others retained by the people as 'enumerated' (as that would obviously be redundant) ... since it most certainly is addressing the fact that there will be OTHER rights retained by the people that are NOT enumerated.

Otherwise, to what could it possible be referring?

"The enumeration in the Constitution, of certain rights, shall not be construed to DENY or DISPARAGE others retained by the people ..." It does NOT say others retained by the people as 'enumerated' (as that would obviously be redundant) ... since it most certainly is addressing the fact that there will be OTHER rights retained by the people that are NOT enumerated. Otherwise, to what could it possible be referring?

The Ninth and Tenth Amendments provide assurance that the enumerated rights are not intended to authorize the Federal goverment to override other rights long held at common law. Not such things as abortion, gay sex, same-sex marriage, etc., which were crimes at common law (or, in the case of same sex marriage, literally incomprehensible).

The Tenth Amendment acknowledges the plenary powers of the states -- they have the general right to ban or permit things unless some specific constitutional provision limits that right.

Even the poorly crafted Roe decision (in which Justice Blackmun acknowledged frankly that he wasn't really sure where, exactly, this abortion right was to be found in the Constitution, but hey, it must be in there somewhere) didn't stoop to reliance on the Ninth and Tenth Amendments, which would dictate the opposite result.

The Common Law as received by the new states (via reception statutes) in the late 18th century was valid law. Abortion, same-sex marriage, gay sex, etc. have no connection whatsoever with Common Law rights.

But if by "common law" you mean the right of courts today to make the law up as they go along, then no, I don't acknowledge that.

Simon
Where do you get this half baked history? "Sodomy" and "buggery" were both common law crimes, prohibited by law in each of the 13 colonies and, after 1776, in each of the states. People were from time to time prosecuted and convicted of such crimes (John Adams, as a private lawyer, had at least one client who was convicted of sodomy). NO ONE thought such laws were the slightest bit controversial, much less unconstitutional.

Of course they were constitutional. The constitution at the time didn't disallow states from restricting rights. I don't know where 1776 came from. The constitution was ratified in 1787. And I'm not entirely sure when Adams could have been in private practice after that. (Assuming you're talking about before, and he was practicing law in Massachusetts, the penalty for sodomy then was death, so I'd be interested in hearing about that case, because the only Massachusetts death penalty sodomy case I'm aware of was in 1712. It's possibly whoever didn't get death, though.)

But talking about whether or not it's 'constitutional' is attempting to short-circuit the whole process. I didn't say it was 'unconstitutional', I said that it was unthinkable, by the founders, for a government restricted by the Bill of Rights to actually convict people of such behavior done in private.

It's actually rather trivial to prove that, as the Federal government has never actually had a sodomy law. (And state laws couldn't be enforced on Federal land until 1909.)

Which is, incidentally, exactly the opposite of the post I was arguing against, this isn't just some random position I invented. The founding fathers did not expect that the Federal government would attempt to control bedroom behavior, or any sort of private behavior like that.

Look at their discussions about 'free speech'...they consist entirely of discussion about people doing it in public and via letters and whatnot, and not a single thought to the situation of two people talking privately within their own house, as there was absolutely no way for the government to even know what they were talking about. In some parallel universe, the US has 'freedom of public speech', luckily for us, just 'freedom of speech' was pithier.

"Due process" required to convict someone of a crime is simply that: a pre-established legal process (such as a formal trial by jury) by which it is determined beyond a reasonable doubt (necessarily by the means available) that the defendant committed the crime. Direct evidence such as tape recordings, etc., is not required -- a person can be convicted of a crime through purely circumstantial evidence.

I don't quite know why you're quoting 'due process', as I didn't actually use that term. However, I'm a bit confused as to what 'circumstantial evidence' would demonstrate that two people had had oral sex.

Almost every 'sodomy' conviction I've heard of was actually for soliciting it or two people actually got caught during it by police. Which, as I pointed out, couldn't happen back then except by them being morons and doing it in public, or unlikely mischance, like what happening Bowers v. Hardwick et al, and can't happen in the present day without the aforementioned things or police abilities that didn't exist then.

And, more to the point, I urge you to go look at sodomy convictions over the years. Notice anything? A very very large increase in the very late 1800s, along with other 'vice' prosecutions that, until then, had been completely and utterly ignored by the police. (Ironically not starting until after constitutional protections had been extended top protections from the state.)

The founding fathers probably didn't give a damn about sodomy, and I'm not saying they did. They probably personally disliked it. I am, however, asserting that in their universe, the government simply could not (As in, was physically unable) to meddle in activities that happened in private between adults. The state governments didn't start meddling in such activities until about 80 years later, before that it was solely public sex they concerned themselves with.

Even then, they didn't, and haven't, had much success with convicting people of such behavior, they almost always end up getting convictions for all sorts of things besides the actual sodomy statue, except in the case of public sodomy. (I.e., while with our current police powers we could actually convict people of sodomy fairly easily, those tended not to actually be used.)

If a state government can barge into your bedroom and arrest you simply because you are engaging in a sex act not aimed toward reproduction (and of course, LOTS of sex acts by heterosexual couples are not aimed at reproduction), that is a totalitarian state.

1. You're the one who introduced into this discussion the concept of "non-reproductive sex." For the umpteenth time, neither I nor anyone else here (or anywhere else, as far as I know) has suggested that whether an sexual act is "aimed at reproduction" has any relevance to the Constitutional question.

2. Also for the umpteenth time: There is a basic difference between conduct permitted by law and conduct protected by the Constitution. I'd personally find a law prohibiting the sale and distribution of alcohol to adults highly offensive and, outside the more remote parts of the Bible Belt, there probably isn't one American out of 50 who'd support such a law. But such a law would be perfectly constitutional and, if the public view of alcohol shifted dramatically, elected representatives could enact it. The proper remedy for a law like that would be to campaign in the court of public opinion and work to defeat the representatives who supported it.

3. Finally, if you seriously believe that enforcement of laws against homosexual activity (which, by the way, no one has ever been much interested in enforcing on a broad scale) would turn the U.S. into a "totalitarian state," you really need to expand your imagination and understanding of what totalitarianism is. Perhaps talk with someone from the former Soviet Bloc.

"State regulation of sexuality is a hallmark of totalitarianism. (See Handmaid's Tale, The.)"

Yeah, and we all know what a great Constitutional scholar and legal mind Margaret Atwood is. Sheesh.

When your opponent appeals to a Canadian, leftist, feminist ficton writer in a debate about American jurisprudence, I can think you can safely assume you've won, Simon.

"The Common Law as received by the new states (via reception statutes) in the late 18th century was valid law."

It was okay, then, but it's not okay now? And how do you reconcile that, Simon?

"The Common Law as received by the new states (via reception statutes) in the late 18th century was valid law." It was okay, then, but it's not okay now? And how do you reconcile that, Simon?

You keep chiming in here about "common law" without making clear what your point is. The common law as developed for centuries was received by statute by the new states after 1776.

Since 1789 the Federal government has been subject to a written Constitution. All 50 states have also enacted written Constitutions. And over the course of the past century, the scope of statutory law has expanded so as to swallow up nearly the entire law.

Courts TODAY, therefore, in considering issues such as whether our WRITTEN Constitution includes a "right" to engage in sodomy, or to procure an abortion, etc., do not purport to develop common law in reaching their decisions. Not even the most left wing justices would accept that approach.

So, Simon, as a lawyer, are those your exclusive cites?

Those precedents and references to "settled law" pre-1800?