Sodomy ruling damages freedom

Posted: Jun 28, 2003 12:00 AM

 President John Adams famously said, "Our Constitution was made only for a moral and religious people." In light of Adams' admonition, how should we view the Supreme Court's decision to strike down Texas's sodomy law?

 Is the decision (and the cultural conditions it is doubtlessly based on) more evidence that America has degenerated into an immoral nation unworthy of the Constitution? Have we abandoned the moral foundations of our freedoms?

 I think a strong case can be made that we are moving headlong in that direction, but perhaps for different reasons than you might suspect. The decision demonstrates that we are losing our moral undergirdings, but not necessarily because it reflects that our society condones (and darn near embraces) behavior historically considered aberrant.

 You see, on its face, the decision doesn't particularly turn on whether society sanctions homosexual behavior but on the supposed constitutional right to privacy. So instead of addressing the morality of homosexual behavior, I want to focus on the immorality of judicial activism and what it portends for American freedom.

When Adams (and others) made a correlation between faith and freedom, he wasn't saying that only a sin-free people were suited for the Constitution. If that were the case, the nation would have been doomed from the start. For as a devout Christian, Adams believed that all men are sinners.

 Instead, he meant that for the Constitution to serve as a long-term guarantor of our freedoms the American people, by and large, would have to guide themselves by absolute moral standards -- not ones that shift with the sands of political correctness.

 This tendency toward judicial activism in the last 50 years is a result of our institutional abandonment of moral absolutes. Judicial activism is grounded in moral relativism and sustained by the notion that there are no moral standards that cannot be bent or broken to conform to society's ever-changing moral condition.

 When our constitutional freedoms are planted in the unstable footings of moral relativism, they are but a step away from extinction. This is what Christians mean (and what Adams meant) in saying that no matter how brilliantly crafted our Constitution, it will not survive as a liberty-preserving instrument without moral underpinnings.   Indeed our liberties are insured by limitations on government rooted in moral absolutes.

 Just consider some of the methods by which the Constitutional Framers instituted a system of limited government. They incorporated into the Constitution the principles of federalism, separation of powers, the Bill of Rights, enumerated powers, reserved powers and the rule of law.

 The sobering reality is that every one of those doctrines is undermined when a judicially active court acts as a superlegislature and rewrites the laws according to its whim, as in the Texas sodomy case or the Michigan Law School admissions case where the Court affirmed government-sponsored race-based discrimination.

 Regardless of what you think about the propriety of state laws criminalizing sodomy, under our constitutional system, it is a matter for the state governments to decide. There is no provision in the federal constitution -- except the one the Supreme Court has fabricated over the years (the right to privacy) -- that can preempt the states on this issue. Regardless of whether a majority of the Supreme Court justices happen to believe that reverse racism is justified to correct past discrimination, the Court has no right to completely contradict the Constitution in implementing such a rule.

 But when moral relativism is the Court's guiding light, it can take away rights or create them out of thin air at the stroke of an arrogant judicial pen. When no fixed principles are immune from the Court's mischief, the entire Bill of Rights is in jeopardy, because there is no longer any reliable protection for the minority against the tyranny of the majority.

 Unchecked judicial activism leads to the erosion of all the foundational principles of limited government. Federalism takes a hit because the federal court usurps state prerogatives; the separation of powers is damaged because the Court encroaches into the legislative sphere; the Bill of Rights is assaulted because the 9th and 10th Amendment rights of the people and the states (and the reserved powers doctrine) are diminished. And the rule of law takes a punch to the gut when the highest arbiter of law in the nation says that we are a government of men -- five out of nine robed men, to be more precise -- not laws.

 Some so-called civil libertarians are touting the Court's sodomy ruling as a giant step forward for American freedom. It is exactly the opposite.

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