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July 02, 2003
Whence the 10th Amendment

Andrew Sullivan pointed to what he considered the best argument against the Lawrence decision. This editorial by Jeffrey Rosen is a fairly strong argument against the current judicial reasoning.

Rosen's basic thesis is that there is no privacy right or right to sexual privacy in the Constitution. I think he is leaving something conspicuously out and that would be the 9th and 10th amendment. They state pretty clearly:

Amendment IX

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

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.

Now, I know that jurisprudence has basically gutted these two amendments, but that doesn't mean that this is the right result. Rosen's argument that the court finding an amorphous right out of whole cloth is not good judiciary practice seems to open an equivalent criticism that the court should give real weight to these two amendments. Most of the questions that Rosen asks as to where the court finds a basis for Roe and Griswold and other cases could well be answered with amendment 9 and 10 taken at face value.

I personally can't find a real reason to allow the continuance of moral imposition by a democratic majority. At the heart the political opposition to Lawrence is a desire to legislate morality. It certainly seems to me that leading by example is a better long term strategy than imposition. Ask any parent.

Update: Glenn Reynolds expounds on this at length.

Posted by hoffmang | July 02, 2003 06:01 PM


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