Tuesday, November 09, 2004

Morality and Law -- post by Paul Smith

A never-ending process under our constitutional scheme is working out the boundaries of those areas in which the political branches are barred from regulating in order to impose on the dissenting minority a particular moral perspective. This gets played out under the First Amendment speech and religion clauses. And it is the heart of the substantive due process line of cases stretching from Lawrence back to Griwold and beyond. Those who argue for few constitutional limits in this area take the view that enforcing pluralism interferes, through the operation of culture if not law, with the rights of those wishing to uphold more traditional values. Progressives who believe in fencing off a realm of individual choice over matters involving family choices, sexuality, control of the body and the like, need to work to articulate better the reasons why such constitutional rules are legitimate and necessary. Just as importantly, we need to look for ways to assure conservatives that pluralism is not just a one-way ratchet, constantly pushing their children toward the values of secular elites. If we do not, the culture wars will go on, and the Constitution in 2020 may end up being much less protective of rights of personal privacy than we hope and imagine.

-- Paul Smith