Legal Musings, Again: Looking again at some of the rulings from the Supremes recently, I'm puzzled by the right-wing arguments. I would expect someone of a conservative temper to set a fairly high bar for the state to have to leap in order to meddle anywhere in personal liberty. Yet Scalia's argument, in the Lawrence case, implies that it is up to the people to craft an argument to keep the state out of, say, the bedroom. Now it may be a tenet of "strict constructionism" not to recognize unenumerated rights (though, as I said, the 9th Amendment explicitly bursts that balloon). But as long as one is psychologizing for "founders' intents" and such intangibles, isn't it fairly obvious to see that the spirit of the Constitution is that individual freedom is paramount? Certainly it's worth noting that there is no explicit right to privacy in the Bill of Rights. But there's no explicit right to breathe air, either. We have to extrapolate that from the general principle of liberty. Sexuality, in which the strands of procreation and pleasure cannot be truly teased apart, functions along biological lines, like the drawing of breath.

I suppose the Massachusetts SJC case on gay marriage could technically go to the Supreme Court, at which point we'll see if Scalia puts his money where his mouth is. If a state can legislate against something on community moral grounds, according to Scalia, it should be a slam dunk that they might legislate for something. As far as "protecting the institution of marriage" argument goes, I don't remember anything in the Constitution about the right to have your institutions protected.