Sodomy Laws Are Unconstitutional
By Paul Blair (San Francisco Examiner, July 1, 2003; SF Daily Journal, July 9, 2003; LA Daily Journal, July 9, 2003)
Contrary to Justices Thomas and Scalia, the Constitution does require the Supreme Court to strike down Texas's antisodomy law. The Ninth Amendment clearly states that the mere fact that a right is not enumerated in the Constitution shall not be construed to deny or disparage it. The Constitution envisions that the Federal Government shall have no powers but those granted it in that document--that everything not specifically authorized to the government is forbidden.
The "privileges and immunities" that citizens thereby enjoy are equally protected from infringement by state governments according to the Fourteenth Amendment, as intended by those who framed and ratified it.
The Constitution was enacted, not to permit democratic majorities to enforce their whims, but to restrict the power of government regardless of anyone's will. Justice Stanley Matthews put this well: "Arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude. And the limitations imposed by our constitutional law upon the action of the governments, both state and national, are essential to the preservation of public and private rights, notwithstanding the representative character of our political institutions. The enforcement of these limitations by judicial process is the device of self-governing communities to protect the rights of individuals and minorities, as well against the power of numbers, as against the violence of public agents transcending the limits of lawful authority, even when acting in the name and wielding the force of the government."