Check the lead "Talk of the Town" piece in this week's New Yorker for a great example of Hendrik Hertzberg's panoramic and responsible writing. Amongst the many things he happens to cogently advocate in this piece is last week's US Supreme Court decision against the Texas law that prohibited homosexual "sodomy" but not that between heterosexuals—or excuse me, between a man and a woman. If only the following text were as interesting as Hertzberg's!

Partly at issue in the case was the question of whether this is a law that the Supreme Court has any reason to overturn, even if the law itself is a bad one. For the Supreme Court, after all, is not tasked with making moral judgements about laws per se, but rather with overturning lesser laws that are in conflict with greater ones—specifically ones so great as to be part of the US Constitution and Bill of Rights.

Chief dissenter Scalia wrote that the majority judges were "impatient with the democratic process"—in other words, that they decided for what they thought the people ought to have, rather than letting the people elect legislators who would enact or emend legislation on behalf of their constituents—repealing the Texas law against same-sex sodomy.

All this troubled me, since I thought, "Surely there is a deep right or juridical principle somewhere that prevents either this kind of discrimination, or this kind of intrusion of privacy between two people who have no complaint against each other." Not in so many words, but yes, that's what I was thinking. As it turns out, the court did base its decision on such a principle: the Fourteenth Amendment to the Constution, which is the one adopted after the War Between the States that reads, "[no] State shall deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." The Court struck down the Texas law not based on the Equal Protection Clause (lawyers use capital letters for this fourteen-word phrase so I will too) but based on the Due Process Clause (sixteen words).

The decision quotes this interesting statement from a '92 decision:

At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

as evidence that "liberty" includes the right to privately get jiggy with a member of your own sex. I would agree: the notion of "liberty" does encompass that in my mind.

The phrase "due process" in the Due Process Clause seems to have been swept under the rug—after all, Texas did go to the trouble of enacting a relevant law, and exercising its enforcement and judicial apparatus: one could aruge that the petitioners were deprived of their liberty with the process that was due. But thankfully, the Court makes stronger use of the word "liberty" than of "due process." Such is what is apparently necessary to obtain for Americans rights that are entrusted to Europeans by no less a document than the European Convention on Human Rights.

What an awful job, sitting on the Supreme Court: to be tasked with finding legal reasons to make political decisions.