Santorum Storm
Posted by aogSaturday, 26 April 2003 at 11:10 TrackBack Ping URL
The Volokh Conspiracy weighs in on the controversy concerning Sentator Santorum's remarks. I must disagree with Mr. Volokh's and the Senator's view on the simiarly of sodomy and polygamy / bigamy. What both seem to miss is that adults can commit sodomy in private but it is not possible to commit either polygamy or bigamy in private. Both of these are instrinsically public and currently in the US involve at least one government agency (which ever one issues the marriage certificate). It is a not a small difference that polygamy and bigamy require the active involvement of the State but sodomy doesn't. The relation to incest is much closer, as noted by the Brothers Judd. Even the cited article contains an error similar to Volokh's in comparing incest to cousin marriage because as above marriage is a public act involving the State where as incest can be done entirely in private. One could make a reasonable argument, though, that it's hard to judge true consent in an incestual relationship because of the prior relationships among the participants making it sufficiently problematic to forbid legally.

As for adultery, as others have commented that can be treated as a breach of contract and so presents no legal problems that are similar to those that confront anti-sodomy laws.

I therefore don't see any slippery slope in a legal sense to not outlawing sodomy while holding the legal line to the other practices that Santorum considered equivalent. As a matter of law and policy I think his argument is weak at best. However, I hardly think that Santorum's position is insane. It's clearly not very far from mainstream jurisprudence. If Santorum's view represents the loony fringe, why haven't the actual laws been repealed? Further, the very fact that it's gone all the way to the Supreme Court without any clear indication of how that Court will actually rule shows that it's not a settled question.

As a matter of policy I against regulating private sexual behaviour. As a matter of law I'm far more ambivalent. I don't believe in a "right to privacy" but on the other hand I don't consider that necessary. The citizen doesn't have to demonstrate that he has a “right” to do something; the State must show that it is empowered to forbid it. I think it's clear that the federal anti-sodomoy laws are invalid – does the penumbra of the 14th Admendment extend this to state laws? I'm not sure.

Comments — Formatting by Textile
pj Saturday, 26 April 2003 at 21:24

AOG -

Clearly the federal gov’t has no Constitutional power to regulate sodomy. However, traditionally the states do have that power.

Reasoning from the plain text, rather than Supreme Court precedent, the federal gov’t could obtain from the 14th Amendment power to regulate state laws against sodomy only if sodomy is a “privilege or immunity” — i.e. a right or freedom — of citizens of the United States. There is no such enumerated right, so it would have to be found among the unenumerated rights acknowledged in the 9th Amendment.

The “right to privacy” that Griswold v Connecticut found in penumbras and emanations of the Constitution as a whole - not just the 14th Amendment, but a mosaic of various parts of the Constitution - is so vague that it is useless to speculate on any grounds of logic whether it encompasses sodomy.

Annoying Old Guy Sunday, 27 April 2003 at 11:09
Ah. I was thinking that clearly the 14th can’t restrict state governments to only the enumerated powers because
  1. States can’t coin money
  2. Congress can’t outlaw murder
So clearly there are powers which are posessed by state governments and not the federal government. I suspect that the Founding Fathers were deliberately vague on this because it is far more important to restrict the federal government (which is very difficult to escape) but not so important to restrict state governments (which are relatively easy to flee).

And as I said, while I disagree with these laws on policy, I am not sure there is Constitutional basis for overturning and moreover such a thing could well set a bad precedent (e.g., Roe v. Wade, where I like the policy but dislike the legal basis).

pj Saturday, 10 May 2003 at 21:36

You’re right that enumerated powers doctrine limits only the federal government, not the states. The original Constitution didn’t restrict the states at all, except to give the federal government control over interstate commerce. So until the 14th Amendment was passed, states could violate free speech, free exercise of religion, right to keep and bear arms, etc., at will, and did so. For instance, Southern states made it a crime to criticize the institution of slavery, and abolitionist preachers were arrested for doing so in sermons.

The 14th Amendment gave Congress the authority to make laws enforcing the three 14th Amendment clauses — privileges or immunities, equal protection, due process — against the states. (In modern jurisprudence, of course, only the courts are allowed to explicate the Constitution, so that the power to elucidate the meaning of these clauses has been effectively transferred from Congress to the courts.)

End of Discussion