the other; however, Powell did leave open the (abortive, in this case) possibility of reviewing the violation of Constitutional rights if the Eighth Amendment, which bars cruel and unusual punishment.
In their zeal to offer legitimacy to their ruling, the majority justices in Bowers cite an impressive string of historical and moral authorities, not merely the statutes of colonial America but acknowledged and respected written traditions of Western civilization. This explains the references by Burger and White to the "ancient roots" of prohibition against consensual homosexual sodomy. It would appear that the legal reasoning may be stripped to this essential point: that because there is nothing in tradition that affirmatively provides for the protection of consensual homosexual sodomy, such an assertion would unduly infringe on the prerogatives of the state to enact statutes that are consistent with the historiography of what Burger refers to as "millennia of moral teaching." Burger continues, "This is essentially not a question of personal 'preferences' but rather of the legislative authority of the State. I find nothing in the Constitution depriving a State of the power to enact the statute challenged here."
These arguments might be compelling were it not for the fact that the most compelling judicial answer to them might come in the form of an injunction or suggestion to stick with the law and not move the judicial process into the realm of moral prescription. Or, as Henry Blackmun, writing for the dissenting four-justice minority puts it, the case is simply not about homosexuality at all but about personal liberty and, as stated in Olmstead v. United States, "the right to be let alone." On this view, if the Constitutional and not the moral facts of the case
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