what does the right REALLY think of Roberts?
RJLipkin at aol.com
RJLipkin at aol.com
Tue Jul 26 07:31:11 PDT 2005
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
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."
Robert Justin Lipkin
Professor of Law
Widener University School of Law
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