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Joe Mariani

How Malleable Is The Constitution?
June 26, 2003

Today, 26 June 2003, marks an absolutely astounding landmark decision by the US Supreme Court. Today, the Supreme Court decided that a Texas law declaring sodomy a crime is unconstitutional. What's frightening about this decision is not just the fact that they created a new "constitutional" right out of thin air without going through the process for creating laws detailed in the Constitution itself, or even that they decided to make a legal ruling on what is essentially a cultural affair (no pun intended) and not a legal one, but the fact that they overturned their own 1986 ruling (Bowers v. Hardwick) that protected the power of individual States to decide whether sodomy is a crime. They simply removed those rights with the stroke of a pen.

The purpose of the Supreme Court in these instances is to decide whether rulings of lesser courts, or the actions of the President, conflict with the Constitution. According to the Supreme Court's web site, http://www.su premecourtus.gov (did you expect any other URL?), "The complex role of the Supreme Court in this system derives from its authority to invalidate legislation or executive actions which, in the Court's considered judgment, conflict with the Constitution." In 1986, State laws regarding sodomy were upheld by the Supreme Court of the US because, in the Court's "considered judgment", individual States held that decision power according to the Constitution of the United States.

So... what has changed between 1986 and 2003? More to the point, what has changed in the Constitution between 1986 and 2003? Specifically -- and here's the heart of the matter -- what in the Constitution has changed regarding the rights of States to determine the legality of sexual acts between 1986 and 2003?

The answer is: nothing.

The last two amendments to the Constitution were the 26th (1971) and 27th (1992). Neither one has anything to do with the rights of States to determine the legality of certain sexual acts. In 1986, the Supreme Court ruled that States have that right in accordance to the Constitution. There is no logical, earthly reason why their position in this matter should have changed, since the Constitution itself has not changed. It is the same reason that the controversial Roe v. Wade (1973) decision making abortion legal will never be reversed until the Constitution itself is changed. The "partial-birth" abortion ban passes Constitutional scrutiny because (not to get too technical) during the procedure, the fetus is partially removed from the mother, which -- technically -- satisfies the definition of "birth"... therefore making it no longer a "fetus" but a child, and granting him or her rights.

I'm sorry... I should have said that the Roe v. Wade decision would never have been reversed. The Liberals may have screwed themselves on this. For as we have seen today, the Supreme Court no longer restricts itself to interpreting laws based on how they relate to the Constitution. Since the Constitution itself has not changed since 1986, we can only interpret the Supreme Court's decision to reverse its own ruling in one way. The Supreme Court now decides the law based on the current prevailing culture and individual agendas, instead of based on the Constitution.

And THAT scares me to death.

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