Now let's consider Mr. Lampo's truly distorted view of the Constitution.
Mr. Lampo contends that Sen. Rick Santorum, Pennsylvania Republican, erred by noting that the Constitution does not define any right to privacy, which it doesn't. Then Mr. Lampo concedes that "the Constitution doesn't say anything about sex at all." Yes, the framers left such matters largely to the states, which is why it would be a colossal act of judicial tyranny if the Supreme Court strikes down the Texas sodomy law.
Then Mr. Lampo says the Constitution was "meant to restrict government power." He neglects to note that the Constitution was designed to restrict federal power, leaving most matters to the states. If states decide that discouraging sodomy is good public policy based on public health and moral concerns, then it is no business of the federal government to usurp that power.
Rios’ view of the Constitution may have been valid in the antebellum era, but classic federalism was effectively abolished with the ratification of the Fourteenth Amendment in 1868. That amendment expanded the principles of limited, constitutional government to the states. Since that time, the mantra of “state’s rights” is invoked mostly by those seeking an excuse to subvert individual rights. Segregation, anti-abortion laws, and voting rights restrictions are just some of the more infamous abuses of state authority.
Furthermore, Rios’ constitutionalism completely ignores the Ninth Amendment’s protection of “unenumerated” rights. The Founders never intended the people to fight every question of individual rights out through amending the Constitution itself. It was presumed that reason would govern society’s definition of individual rights. Instead, rightists like Rios seek to narrow the government’s protection of rights to those practices which only she personally sanctions. In contrast, I doubt the Log Cabin Republicans would use the law to ban heterosexual sodomy if given the opportunity, despite their presumed aversion to the practice.
Nor does invoking the cry of “judicial tyranny” save Rios’ argument. It is not tyrannical for a court to enforce the Constitution over the unreasonable acts of a state legislature. Texas has no right to ban private, consensual sexual acts, and such a ban is factually unconstitutional regardless of a minority’s “moral concerns.” While it would be nice if the Texas legislature repealed the sodomy statute on its own accord, their failure to do so necessitates the intervention of the courts, which were designed to serve as the last line of defense against the tyranny of the government’s elected branches.