The ruckus over Sen. Rick Santorum's discussion of an existing Supreme Court precedent, shows the problem of trying to "regulate" consensual conduct through the courts rather than the legislature. If the forces who oppose sodomy laws were as politically powerful as the fall out from Santorum's remarks would lead you to believe, then they should have no problem getting, say, the Texas legislature to repeal the existing sodomy law. Such a repeal would not effect the other areas of sexual conduct such as incest. It is easy for legislatures to set age limits on conduct. For courts it is much harder.

Constitutional principals tend to be absolute. If consensual sexual conduct in private is a fundamental right, it gets really messy for a court to carve out exceptions to this fundamental right.

It is the same mess the court got itself in on the abortion issue. There is still great argument over when a fetus is a viable baby. Even with all our scientific advances, defining when life begins still alludes the courts as much as it did the author of Eclasties. To say that the abortion issue should also be one decided by the legislature does not imply that abortion would be outlawed. It was already permitted in some states at the time of Roe v. Wade. It pretty clearly would be permitted in most states if the Roe case was reversed.

These problems persist because the "fundamental right of privacy" is a made up right that is not set out in the text of the constitution or amendments. This leaves courts stumbling around like a speaker who has lost his notes and is having to ab lib. Regardless of what your views are on these controversial public policy issues, the best place to resolve them is in the legislature. Those who fear the legislative process on these issues obviously are not as confident of their political base as their posture would imply.


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