The following letter to the editor was printed in the New York Sun (Tuesday). The portions in curly braces were cut by the Sun:
Contrary to Justices Thomas and Scalia–and to your editorial [“Sex and the Scotus,” 6/27/2003]–the Constitution does require the Supreme Court to strike down Texas’ antisodomy law. The Ninth Amendment clearly states that the mere fact that a right is not enumerated in the Constitution shall not be construed to deny or disparage it. {In other words, the Constitution envisions that the Federal Government shall have no powers but those granted in that document–everything not specifically authorized to the government is forbidden.} The “privileges and immunities” that citizens thereby enjoy are equally protected from infringement by state governments according to the Fourteenth Amendment, as envisioned by those who framed and ratified it. The Constitution was enacted, not to permit democratic majorities to enact their whims, but to restrict the power of government regardless of anyone’s will. Justice{Stanley}Matthews put this well:
“{Arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude. And}the limitations imposed by our constitutional law {upon the action of the governments, both state and national,} are essential to the preservation of public and private rights, notwithstanding the representative character of our political institutions. The enforcement of these limitations by judicial process is the device of self-governing communities to protect the rights of individuals and minorities, as well against the power of numbers, as against the violence of public agents transcending the limits of lawful authority, even when acting in the name and wielding the force of the government.”