A joke among libertarians says that if we could add one amendment to the U.S. Constitution, it would say, simply: “And we mean it.”

In the words of the great constitutional scholar Homer Simpson: “It’s funny ’cause it’s true.”

What’s most revealing about the Santorum fiasco is just how quickly those on the right are willing to forget about the Ninth Amendment when such absent mindedness furthers their own philosophy.

There is no express “right” to consensual non-traditional sex in the U.S. Constitution any more than there is an express “right” to eat a jelly donut. That doesn’t mean you don’t have the right to eat a jelly donut, and it doesn’t mean you don’t have the right to break out the benoit balls.

The Ninth Amendment was written and ratified for exactly this reason. The founders worried that an enumeration of rights (the Bill of Rights) might be interpreted to imply that those are the only rights individuals have vs. the state. And of course, it would be impossible to list every right you have. So they included the Ninth Amendment — powers not expressly granted to the federal government elsewhere in the Constitution are reserved for the people. Ratification of the Fourteenth Amendment then forced the states to respect the same individual rights the federal government is required to respect.

Both left and right conveniently forget the Ninth Amendment when it suits their purposes. “Where in the Constitution does it say you have the right to smoke a joint?” they say. “Where in the Constitution does it say you have the right to ride a motorcycle without a helmet?” It’s in the Ninth Amendment. And if it’s a state law, it’s in the Ninth and the Fourteenth.

Proponents of states’ rights to enact sodomy laws (like Sen. Santorum) say there is no “right to privacy” — that it was carved from the Fourth Amendment via “penumbra” (which I think is Latin for: “shit we made up”) and, therefore, is interpretive — and not consistent with the original intent of the founders.

But if the right to engage in private acts behind a closed bedroom door without the state kicking it down — and then checking to be sure all the right parts are insterted into all the right places — isn’t covered by the Ninth Amendment, what in the world is?

Since there’s no express clause in the Constitution granting states the power to prohibit buggery, we can only assume that buggery is protected by the Ninth Amendment.

A few final thoughts on the littany of other “horribles” Sen. Santorum paraded forward that might come to pass should the Supreme Court rule in favor of the infidel sodomites:

Incest:

If we’re talking man-on-child incest, that’s rape. It takes a clear victim. The rapist is a criminal. Rape isn’t protected by the Ninth Amendment.

If we’re talking about two concensual adults — brother and sister, cousins, what have you, I don’t really see how you can legally prevent them from having sex. Is it icky? Sure. Should we encourage it? No. But lots of icky things are and should be legal.

Polygamy:

What is polygamy? It’s the act of being married to more than one person at the same time. What is marriage? It’s a state-conferred blessing on a contract where each party pledges fidelity and the sharing of resources.

I don’t think a Supreme Court-granted right to sodomy means that every state must now change its marriage laws. A right to privacy doesn’t mean states have to let you take ten wives. It does mean that the state can’t stop you from sleeping with, or living with, ten women.

Personally, I’d like to see the states get out of the business of marriage altogether. Why Sen. Santorum and other conservatives are so concerned with the sanctity of state-sanctioned marriage is beyond me. Official, state-sanctioned marriage brings the government into a commitment ceremony that I’d guess Sen. Santorum believes to be sacred and touched by the hand of God. Why does he want that?

Marriage contracts should be private. Bring the state in only when one party breaches the contract. But that’s another topic.

Adultery:

I’m fairly sure adultery isn’t criminal in most jurisdictions. If it is, then yes, a favorable Supreme Court ruling against the Texas sodomy law would probably overturn those laws.

But adultery is a breach of the marriage contract and, therefore, would still be grounds for compensation for the victim. You don’t have a right to adultery without consequences any more than you have a right to reneg lease, or an employment contract.

Beastiality/zoophelia:

I don’t really know what to think of this one. I suppose if there’s a right to have sex with a same-sex partner, there’s probably a right to have sex with a goat. The only question here concerns the goat’s rights, and if animals can be legally protected from lonely, amorous stableboys. Animals obviously don’t have constitutional rights, but you could reasonably argue that they ought to have some legal protection. You oughtn’t be permitted to shave kittens for kicks, for example.

But we do kill animals and eat them, don’t we? Is romancing a heifer any worse than killing one?

I should add here, that I’m very uncomfortable with the territory we’ve wandered into, here.

I guess I’d reluctantly conclude that yes, there is a right to cuddle in the barnyard.

Again, that of course doesn’t mean it’s behavior that ought to be encouraged.

(See William Selatan’s essay on “love that dare not bark its name” here.)

I think I’m done with Santorum now. And I really, really, really hope I’m done with all discussion of man-beast love.

This entry was posted on Friday, April 25th, 2003 at 9:15 am by Radley Balko and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.