Lawrence v. Texas and judicial hubris.

AuthorLund, Nelson

Alas, my lord, Your wisdom is consumed in confidence. (1)

TABLE OF CONTENTS INTRODUCTION I. A BRIEF HISTORY OF SUBSTANTIVE DUE PROCESS A. The Impertinent Origins of Substantive Due Process B. Substantive Due Process Returns to Respectability C. Prometheus Bound? D Prometheus Unbound E. Prometheus Rebound? II. THE LAWRENCE OPINION A. The Court's Ascent into More Transcendent Dimensions B. Transcending Prior Doctrine C. Transcending America D Exploring More Transcendent Dimensions III. CAN LAWRENCE BE DEFENDED? A. Lawrence as Sophisticated Law B. Lawrence as Textual Interpretation IV. THE COSTS AND BENEFITS OF LAWRENCE V. GLUCKSBERG REDUX AND THE ELIMINATION OF THE GRISWOLD-ROE-LAWRENCE LINE A. Reviving Glucksberg B. Repudiating Griswold and Its Progeny C. Stare Decisis D. A Federal Constitutional Amendment on Same-Sex Marriage? CONCLUSION INTRODUCTION

The republic will no doubt survive the Supreme Court's decision, in Lawrence v. Texas, (2) to invalidate laws against private, consensual sodomy, including those limited to homosexual behavior. Such laws are almost never enforced, and the rare prosecutions for such acts are necessarily capricious. So the principal direct effect of the Court's decision is likely to be extremely limited, and largely salutary: a few individuals will be spared the bad luck of getting a criminal conviction for violating laws that are manifestly out of step with prevailing sexual mores.

Nor are we likely to see anything like the intense political opposition generated by this decision's most important doctrinal ancestor, Roe v. Wade. Millions of Americans regard Roe as judicial authorization for mass murder, and understandably continue to oppose the Court's approach to abortion. (3) One can hardly foresee a similar passion for overturning a judicial decision that merely eliminates a few haphazard prosecutions for private conduct that has no immediate effect on any third parties. Judging at least by what we see in the general press and popular entertainment media, most of the public can be counted on to respond to the immediate consequences of Lawrence with a yawn. If the Court was looking for a case in which to flex its political muscles with impunity, it could hardly have found a better candidate.

This does not mean that Lawrence is unimportant. Among the journalists and academics who will largely determine the historical reputations of individual Justices, this case will be enthusiastically celebrated, and not principally for its small direct effects. Rather, we expect to see powerful efforts to ensure that Lawrence paves the way for a broader attack on traditional marriage laws and perhaps many other legal expressions of traditional morality.

We cannot join the celebration. Lawrence is a paragon of the most anticonstitutional branch of constitutional law: substantive due process. The decision also reflects a breakdown of the Court's most recent attempt to put doctrinal restraints on that intoxicating doctrine. It is a commonplace observation--often repeated by members of the Court itself--that substantive due process makes judges into unelected and unremovable superlegislators. History has recorded several efforts to tame the doctrine in ways designed to give it a more law-like nature, and thereby to protect the properly judicial function of the Court from its all-too-human members. In Lawrence, the latest effort fell apart.

The Lawrence opinion is a tissue of sophistries embroidered with a bit of sophomoric philosophizing. It is a serious matter when the Supreme Court descends to the level of analysis displayed in this opinion, especially in a high-visibility case that all but promises future adventurism unconstrained by anything but the will of the judicial majority. This performance deserves to be condemned rather than celebrated, even by those--like us--who have no sympathy for the statute that the Court struck down. Nor does Lawrence, which displays a dismissive contempt for both the Constitution and the work of prior Courts, deserve to be preserved by the doctrine of stare decisis.

Finally, we do not believe that the undisciplined approach to law exemplified by Lawrence can be redeemed by its practical effects. The Lawrence approach to substantive due process has relatively small and ephemeral benefits but very large and enduring costs, particularly to the judiciary as an institution. This is no accident. The Constitution creates alternative mechanisms for achieving desirable legal changes that are far superior to this kind of judicial improvisation. The ordinary political processes of democracy, and especially the operation of competitive federalism, do not operate flawlessly or instantaneously, but they have numerous advantages over the impatient and self-satisfied imposition of constitutionally unjustified judicial edicts.

  1. A BRIEF HISTORY OF SUBSTANTIVE DUE PROCESS

    Judges hate to enforce laws they think unjust, for the same reason that almost everyone hates injustice that brings no personal benefits. And just as many citizens sometimes disobey laws that they think wrong or oppressive, judges sometimes refuse to enforce laws that offend their moral beliefs. This judicial disobedience takes a variety of covert forms, but sometimes it is fairly open. And, as with the general population, some judges are more inclined to disobey the law than others.

    1. The Impertinent Origins of Substantive Due Process

      In American law, the classic debate about the propriety of substituting judges' sense of justice for that of legislators can be found in an exchange of dicta in Calder v. Bull. (4) Justice Chase contended that the very nature of the social compact implies that no legislature may "authorize manifest injustice by positive law; or ... take away that security for personal liberty, or private property, for the protection whereof the government was established." (5) Justice Iredell responded that such an approach misconceives the judicial function:

      The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject; and all that the Court could properly say ... would be, that the Legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice. (6) Foreshadowing later debates, Iredell contended that the state and federal constitutions specified the limits on legislative power, and thereby specified the grounds on which courts might nullify statutes, (7) while Chase maintained that a roving judicial commission to correct injustice was implicit in the nature and purpose of these constitutions, whose spirit implied additional, unstated prohibitions on the "apparent and flagrant abuse of legislative power." (8)

      Chase himself may have had a very modest view of the scope of his roving commission, but that would not answer Iredell's objection. Chase might have responded by pointing to a specific constitutional provision that forbids injustice, or at least forbids some general category of intolerable injustice. But there is no such provision. The fateful step of pretending that such a provision exists was taken six decades later in Chief Justice Taney's opinion in Dred Scott. (9)

      Taney contended in Dred Scott that the Missouri Compromise, which had purported to outlaw slavery in the northern territories, violated the Fifth Amendment's Due Process Clause. His entire analysis was comprehended in the following exclamation:

      [A]n act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law. (10) In dissent, Justice Curtis explained in considerable detail why Taney had to be wrong. The essence of Curtis's argument was that the right to hold human beings as property is founded entirely on positive law, and that this property right must be lost when the owner voluntarily brings such men within a jurisdiction that does not recognize the right. (11) Taney himself acknowledged that Congress had the authority to legislate for the territories, (12) and Curtis pointed out that the slave states themselves recognized their own right to forbid the importation of slaves, notwithstanding the due process clauses in their own state constitutions, (13) The Due Process Clause, whose lineage traced to Magna Charta and which had an analogue in the law of every American state, had never been thought to have any bearing on the right of legislatures to regulate or abolish slavery. Taney gave no reason for suddenly imputing any such substantive effect to the Clause, which would among other things imply that the Fifth Amendment silently withdrew from Congress its unquestioned power to regulate or ban the slave trade. (14)

      Dred Scott proved to be a pretty good paradigm for the future development of what we call substantive due process. Offering no reason at all to explain how the due process provision of the Constitution could suddenly operate to invalidate a type of substantive law that was well-established at the time the provision was enacted, Taney must have believed that his political and moral judgments were superior to those of the benighted legislature. Neither he nor anyone since has produced any evidence that the Fifth Amendment contained some kind of secret message telling judges that no person shall be deprived of life, liberty, or property except when judges find the deprivation sufficiently inoffensive to their moral and political sensibilities. In response to Curtis's well-reasoned legal arguments, Taney responded with dead silence. And what else should one expect, if he neither had nor needed arguments or evidence? Self-evident truths about the justice of the slaveholders' position...

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