what does the right REALLY think of Roberts?

[RJLipkin at aol.com]

In a message dated 7/26/2005 10:06:35 AM Eastern Standard Time,  
denversam at gmail.com writes:

On  homosexuality, most social conservatives do not favor laws
prohibiting  sodomy, but they do resist employment and housing laws
which require them  to "accept" the "lifestyle." 


Contentions such as  these are difficult to find persuasive.  During my 
lifetime such social  conservatives as Pat Buchanan, William Bennett, Phyllis 
Schafly, various  clergy persons, and so forth have all supported the majority's 
right to  criminalize homosexuality. Just review cable TV shows discussing 
whether  Bowers v. Hardwick should be overruled. Regarding same-sex marriage,  
social conservatives typically embrace traditional marriage and oppose same-sex  
marriage.  By Mr. Ventola's own account that's not a position a  libertarian 
would take. 
 
        Perhaps the argument is  that social conservatives that try to be 
committed to libertarianism should not  support the majority's right in this 
regard.  But, of course, that makes my  argument for me.
 
        The entire problem of  speaking about what counts as "stretching" the 
Constitution rests on the agreed  upon baseline of what are the proper limits 
of the Constitution. To avoid a  circular argument if one thinks the 
Constitution has just this precise--some a  priori, and know to be fixed--limit, one 
must contend with the Ninth Amendment,  the Necessary and Proper Clause, to 
name just two constitutional provisions  which arguably permit "stretching" the 
Constitution. Moreover, one must provide  a theory of what authorizes inferring 
the right to association--in expressive  and non-expressive contexts--from 
the First Amendment. The word assemble is  stated in the Constitution, but the 
word association is not. Surely only very  minimal elements of association, if 
any at all, are required to assemble, and so  forth. The freedom of 
association has been interpreted by even conservative  courts to include much more than 
minimal association limited only to the  purpose of assembly.  What theory 
gets us there?  Alternatively  stated, how do we identify and individuate just 
what counts as "The  Constitution" for the purpose of using the Constitution to 
supervise  lawmaking and selecting just which rights we have.
 
        Finally, any serious  libertarian is unlikely to limit the rights he 
or she believes are  constitutional because in their views the Constitution 
must be read as  assuming the validity of or incorporating the correct set of 
political rights,  especially (but not only) because may libertarians view the 
Ninth Amendment  as the appropriate connection between the Constitution and a 
full array of  libertarian rights.  A constitutionalist who leans too far in 
the direction  of "strict constructionism" may find it difficult to adhere to a 
rich sense of  "libertarianism." 
 
Bobby 
 
Robert Justin  Lipkin
Professor of Law
Widener University School of  Law
Delaware
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