The Supreme Court turned the Constitution upside down yesterday. In a 6-3 decision, the majority struck down state sodomy laws across the country — a move that is being celebrated as a huge victory for homosexual rights, which it is. The court used the so-called right to privacy to rule against a Texas law prohibiting sex between people of the same sex. In a brazen example of judicial overreach, the court also ruled against all sodomy laws in all states. This is bad law; the Constitution protects the rights of the states to legislate on these matters.In support of this argument, the Times cites the Tenth Amendment, which states: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." What the Times neglects to mention is the Ninth Amendment, which provides constitutional protection for "unenumerated" rights not otherwise specified in the Constitution itself. Conservatives have long ignored the Ninth Amendment with malicious forethought because they view it as an obstacle towards their goal of using the government to impose private morality via public law.
The Times editorial does not use the phrase "individual rights" once, but it does refer to "states' rights." It's no coincidence that "states' rights" was once used to justify segregation and slavery. Under the federal Constitution, sovereignty is vested with the people; the states are but a convenient mechanism for dividing government power. Since the function of sovereignty, i.e. government, is the protection of individual rights--and only the protection of individual rights--there does not exist any distinct "states' rights" which can overrule the individual's liberties. No matter how big a majority might wish to do so in any given state, the government may not regulate the private consensual sexual conduct of its citizens on the grounds of public morality.
Nor is the Tenth Amendment a barrier to yesterday's ruling, as the Times falsely suggests. The Tenth Amendment only directs that legitimate government power not assigned to the federal government be remitted to the states and communities. The Tenth Amendment does not, however, define the scope of the general powers of government. That's defined by the Constitution itself, including the Ninth Amendment that conservatives so desperately want to ignore.