I have to say, out of all four opinions, I was most surprised by Thomas’s dissent:
“I write separately to note that the law before the Court today ‘is … uncommonly silly.’ Griswold v. Connecticut, 381 U.S. 479, 527 (1965) (Stewart, J., dissenting). [Griswold struck down a law that criminalized the use of contraceptive devices.] If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources.”
Nevertheless, Thomas still thinks the law is constitutional, because the Constitution doesn’t explicitly guarantee privacy. I can sort of respect that. At least he’s not as dickish as Scalia is in his dissent.
More on Scalia later.
Much more.
the Constitution doesn’t explictly say alot – the problem with Thomas and the other so-called “strict constructionists” is that they fail to see beyond the Federal vs. State question, and forget that the person, the individual, is supreme in our system, and that there must be something significant before the any government can retrict the individual’s actions. That Thomas also doesn’t see the significance of precident (griswold and all the other privacy cases) is rather scarey, too.
BJ, I agree that Thomas’s analysis is problematical, but I tend to suspect both his (and Scalia’s) “strict constructionist” and “states rights” facades, since those red-herring arguments are most often used by zealous partisans on both the left and the right to serve their actual political ends. By saying that Texas law was “uncommonly silly,” he showed (as Stewart did in Griswold) that he doesn’t recognize the unconstitutional injustice implicit in anti-sodomy laws, and that’s what I find the most troubling.
As far as precedent (or stare decisis) goes, I’m not too worried, since the Court flew in the face of that doctrine to overturn Bowers…thank goodness. Precedent only takes one so far.
Precedented is only valid as far as it summarises reasoned analysis of the facts and, therefore, reveal underlying and fundamental Truths in all other possible cases. Precedent reveals principles.
Also, strict constitutionalists exegete the Const. and Bill-o-Rights with the understanding that we are a union of many States; “States” in the sense we now a days use in terms like “friendly State” or “rogue State.” — hugely independent entities. So, they defer many powers to the “union’s democratic grass-roots,” each individual state, except in matters of commerce, fp, etc., matters of tye larger Union.
And, precedent should always be rejected when new facts are known, and new principles of truth learned. That whole Reason thingy.
.rob
i dunno – i cant claim to know too well how these guys, Thomas, Scalia, etc., feel about the 14th amendment in general, but “nor shall any State deprive any person of life, liberty, or property, without due process of law” – they seem to “get” the property part of that, but don’t seem to get the liberty part, which is personal automomy, or, in other words “privacy” – why is it that conservatives want the government out of the boardroom, but not the bedroom?
It always brings a tear to my old legal eye when I read an opinion which so decisively smacks stare decisis upside the head. Former Master of the Rolls, Lord Denning, had a wonderful way of doing that and “finding for the little guy” in the face of weighty precedent. Here here, Rob … and thanks Tin for your great writing on this issue! :)