Tuesday, December 10, 2002

Passing the Constitutional Mustard

Stuart Banner observes, correctly I think, that people's opinions about constitutional questions have an uncanny way of tracking their opinions about the desirability of the related policies. In other words, it's rare to hear someone say, "I favor X, but I realize X is unconstitutional," or "I oppose X, but I recognize that it's constitutional." Gun control is a nice example -- the gun controllers are sure that the Second Amendment only protects states' right to have a national guard, whereas gun advocates are sure it protects an individual right to bear arms.

Mark Kleiman, though, appears to be an exception to the rule when it comes to anti-sodomy laws. In his words, "I think that anti-sodomy laws are a thoroughly bad idea, and that politicians who support them are mostly pandering to prejudice. But I have a hard time wrapping my head around the idea that those laws are unconstitutional." This is a respectable position, in large part for its willingness to admit the Constitution doesn't always say exactly what you want it to say.

However, Kleiman ends by saying this: "I'll be happy if the Court reverses Bowers [the 1986 Supreme Court decision that refused to strike down a Georgia anti-sodomy law], and even happier if its doing so, or failing to do so, helps split the Republican coalition. That's not the same thing, however, as thinking that striking down the law would be right as a matter of Constitutional interpretation." In other words, Kleiman is saying that the Constitution allows anti-sodomy laws, but that he'd be happy to see the Supreme Court strike them down anyway. (Unless there's some way to reverse Bowers while upholding anti-sodomy laws? I don't see it.) This strikes me as a profoundly anti-constitutionalist position, and it undermines Kleiman's status as a counterexample to Banner's Law. It's easy to say that the Constitution disagrees with your ideological position if you don't think it's important for the Supreme Court to uphold the Constitution! So perhaps Banner's Law should be modified like so: *for people who think upholding the Constitution is important*, their views on constitutionality have a strong tendency to reflect their ideological viewpoints.

(Just for the record: I'm opposed to anti-sodomy laws, but I'm ambivalent on the constitutional question. Maybe I'll blog my reasons later.)

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