You may argue that “society” collectively decides what to permit and not to permit, based on some vision of the “common good.” But remember those high school civics texts with the stuff about government exercising only powers delegated by the governed, government’s function being to protect the rights of the individual, and all that? Well, you can’t delegate a power you don’t have. And government can’t protect a right, on your behalf, that you don’t possess as an individual.
So you can’t delegate to government the power to tell other people what foods or drugs to ingest, or who to have sex with, unless you, as an individual, already have the right to boss other people around. You as an individual, or in acting together with any number of other individuals, cannot delegate to government the power to boss people around against their will in regard to peaceful and consensual actions, unless you own them. “Society” has a right to criminalize peaceful, voluntary behavior only if each individual is the property of society as a whole.
This reminded me of something I heard the other day on NPR (or it might have been the BBC World News; I can’t find the story on either website) about the tedious legal “wrangling” over the California court’s overturning of Prop 8 (the ban on gay marriage). Some proponent of the ban—a politician, I think—was arguing that the reversal was somehow a violation of the Constitution and that the voters were getting screwed (or maybe it was a violation of the Constitution because the voters were getting screwed).
1) I love when politicians who (pretty much all of them) generally couldn’t be bothered to wipe their asses with the Constitution suddenly discover the sacred scrap of parchment when it suits their purposes.
2) I love when politicians who (pretty much all of them) generally couldn’t give two shits what “the voters” want suddenly discover the value of democracy during an election year.
For what it’s worth, I’m skeptical of both majoritarian rule and Constitution fetishism. I’m with Carson in that I place individual rights above the will of the majority, regardless of what the Constitution has to say (or not say) about the matter. Not that I expect anyone in power to care.