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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019) and AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021).

Saturday, August 27, 2016

Saturday self-promotion - "Lawrence v. Texas: A Right to Personal Freedom?"

This article, "Lawrence v. Texas: A Right to Personal Freedom?" , was first published in Quadrant back in 2003, shortly after the US Supreme Court case that struck down a Texas anti-sodomy law. The effect was not only to make all laws banning homosexual conduct unconstitutional (and so ineffective) in the US; beyond that, it implies a very wide area of sexual privacy and freedom in highly personal matters. Within that area, the law can't be permitted to intervene. Since I'm something of a libertarian in this respect (though I am not a political libertarian in the sense of being opposed to taxes and the welfare state), the outcome was very welcome to me. Of course, it applies only to the US, but what happens there can affect legal and cultural trends far more broadly.

At the same time, I can't help but be bemused at some of the ways in which US constitutional law has developed over the past 50 to 100 years (and to some extent even beyond). The Supreme Court has tended to find a lot more in the US Constitution than is explicitly stated there, including a wide range of "unenumerated rights" - rights that are never stated but are somehow implicit. This approach to constitutional interpretation can't be ruled out entirely, since much in any document must be taken to go without saying or the document would make no sense, or at least not its obvious sense. For example, it seems fair enough to find it implicit in a democratic constitution that there will be no political censorship, even if no such provision (or any provision on free speech) appears explicitly. But how far can such a process of interpretation go? Surely we can't read in just anything (whether it is an unstated right or an unstated restriction on an explicit right) that seems to the courts to be good policy at the time.

On the gripping hand, Lawrence v. Texas does seem to be correctly decided, given the line of cases that it relies on. Constitutional courts need to make sense of the entire body of legal materials relevant to a case, especially past precedents. Even if I thought that US constitutional law went off the track at some point, a time comes when the body of interpretations adopted by the highest courts is sufficiently dense, consistent, and accepted by the society as a whole that there is no turning back. The US seems to have reached that point long ago with the idea of constitutional protection of sexual privacy and a broad area of freedom in personal matters. As you might expect, I'd hope that something like this would operate as a political principle even in a society where the principle is not regarded as constitutionally entrenched.

This article may also be the first time that I commented publicly (and presciently) on same-sex marriage. I say:
Again, some argument may be put forward in future constitutional cases to retain prohibitions on gay marriages. If, however, no sufficiently compelling argument can be found, what is lost? It seems oppressive and unjustifiable that social and sexual partnerships between gay men or lesbians cannot have the same formal recognition by the state (and the same legal privileges and responsibilities) as heterosexual relationships, if that is the wish of the individuals involved. If the law in the U.S. evolves to reflect this, much is actually gained. This now seems to be the legal position in Canada: Halpern v. Toronto (2003). It does not portend the doom of Canadian society.

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