Sodomy and guns: tradition as democratic deliberation and constitutional interpretation.

• Author: Eskridge, Jr., William N.
• Position: Twenty-Seventh Annual National Federalist Society Student Symposium

INTRODUCTION I. TRADITION KNOWN TO THE FRAMERS AS EVIDENCE OF ORIGINAL MEANING A. Anachronism: The Changed Circumstances Problem B. Cherry-Picking Problems: How Is Tradition Interrogated and Weighed? 1. Multiple Traditions and the Level of Generality Problem 2. What Counts as Tradition? 3. Burden of Proof? C. Illegitimacy Problems II. POST-ADOPTION TRADITION AS CONSTITUTIONAL ADVERSE POSSESSION A. Anachronism B. Cherry-Picking C. Illegitimacy III. TRADITION AS DEMOCRATIC DELIBERATION CONCLUSION INTRODUCTION

The Rehnquist and Roberts Courts have inaugurated a golden age for tradition-based arguments in constitutional law. All of the Justices consider such arguments, and several are amateur historians who have centered their jurisprudence on what constitutional traditions require of us today. Such arguments are the primary legal basis for whole areas of constitutional law, including presidential powers, state immunity, anti-commandeering limits on congressional authority, and the rights to privacy, to keep and bear arms, to habeas corpus, and to be free of cruel and unusual punishment. Other areas of constitutional law, such as equal protection and free speech, are not dominated by these arguments today but might be in the future.

Arguments from tradition raise a central conundrum. Lawyers and judges tend to interpret "tradition" statically and instrumentally, to mean legal practices or norms that have persevered over a long period of time and that provide stable meaning that can be used to resolve a legal issue. The static understanding is related to the instrumental use, because lawyers and judges prefer simplicity to complexity. In contrast, historians approach tradition dynamically and non-instrumentally, to mean legal practices or norms that as a general principle have persevered in some ways and evolved in others. Tradition is rarely simple and univocal; it is multifarious, evolving, and complicated. This understanding creates problems for the judge wielding tradition instrumentally. That tradition is evolving creates risks of anachronism, where the interpreter reads his own values and viewpoint back into the past. That tradition is multifarious creates risks of cherry-picking, where the interpreter (unconsciously) manipulates tradition by focusing on features she finds congenial and ignoring the rest and by interrogating that fragmentary tradition with loaded questions. That tradition is complicated creates risks of illegitimacy, where the interpreter's misinterpretation or manipulation imposes duties or creates rights that obstruct the needed projects and experiments of current legislatures.

This Essay uses case studies of sodomy and gun litigation to explore three values that lawyers and judges find in tradition, and also to understand those values critically, from a historian's point of view. Tradition shall be examined as evidence of original meaning, constitutional adverse possession, and precepts conformed by democratic deliberation. Each of these deployments of tradition is subject to the anachronism, cherry-picking, and illegitimacy problems identified above. In my view, the most problematic use of tradition is the first, tradition as evidence of original meaning. The best legal theory for tradition in constitutional law is the third, tradition as democratic deliberation. The third theory is the one that most respects the historian's dynamic point of view; it can enlighten the interpreter and alter his views about contested matters. This theory provides plausible defenses not only for a laudable Supreme Court decision, but also for two other decisions whose outcomes are questionable.

1. TRADITION KNOWN TO THE FRAMERS AS EVIDENCE OF ORIGINAL MEANING

   The Supreme Court and many commentators believe that a constitutional provision's original meaning is determinative of or relevant to its modern interpretation. If the Constitution is a social contract among Us the People, whose terms dictate the governance structure and some fundamental untrumpable values of our polity, then the shared understanding of what those terms meant is relevant when we are later called upon to apply and interpret the Constitution. (1) Traditions that can be traced back to the framing eras can be a valuable aid in that process of interpretation. Take the Bill of Rights (1791) and the Fourteenth Amendment (1868). The original meaning of their terms can be usefully understood by reference to traditions that would have been known to the Framers, the ratifying legislatures, and the citizens of those eras.

   Assume, as the Court has long assumed, that the liberty protection of the Due Process Clauses of the Fifth and Fourteenth Amendments includes a substantive element: There are some liberties for which the state must provide a compelling justification for the deprivation not to be arbitrary (the ultimate "due process" protection). (2) Almost every state action deprives some persons of liberty in the abstract, yet it would be absurd to agonize over all of these liberty deprivations; thus, only the most serious deprivations trigger constitutional concerns. Which liberty deprivations trigger such concerns is a matter of importance. Liberties long understood as important when a constitutional provision was adopted are potentially important clues as to original meaning. There are, however, huge epistemic difficulties in coming up with the proper list of liberties. First, the Framers and ratifiers debated issues at a high level of generality and did not say much about specific liberty issues. Second, even when a Framer or ratifier said something specific and relevant to the issue, it is hard to generalize that person's stated (and sincere?) views to the population of ratifiers and citizenry. And, third, discussions so long ago (1791 and 1868) operated under very different assumptions about human needs, social policy, science, and so on, and might not be easily transferred to issues today without some interpolation. (3)

   Consider Justice White's opinion for the Court in Bowers v. Hardwick. (4) The issue was whether Georgia's sodomy law could be applied to oral sex in a private apartment between consenting adults--here, two men--without violating the Fourteenth Amendment's liberty protection. Sodomy never came up in the congressional or state ratifying debates, but Justice White and those Justices who wrote concurring opinions got around this difficulty by reference to tradition: Because Anglo-American law at the time of the Fourteenth Amendment (1868) had long prohibited the "crime against nature," (5) and because these laws and their moral foundations would have been well-known to the Framers and ratifiers, the Bowers majority presumed that homosexual sodomy cannot be a "liberty" given extra protection by the Due Process Clause. (6) That the anti-homosexual tradition embedded in Anglo-American law and society had flourished during the twentieth century also enabled the majority Justices to conclude, without any evidence in the record, that citizens of Georgia intended their gender-neutral sodomy law to reflect an anti-homosexual morality, which was a rational basis to sustain the law. (7) At each stage of analysis, historical tradition enabled the Court to resolve matters of uncertainty about language, public intentions, and constitutional purpose.

   Tradition also provided a limiting principle for the case-by-case elaboration of the constitutional privacy right that the Court had creatively teased out of the Due Process Clause. Justice White emphasized this, too, in his opinion. Because the specification of due process liberty to provide special protections for people's privacy against state invasion did not have concrete support in the constitutional text or framing discussions, an expansive view of privacy would imperil the Court's legitimacy as the enforcer of a strict rule of law. (8)

   Unfortunately, Bowers, the exemplar of a tradition-based jurisprudence of original meaning, also illustrates the limitations or pitfalls of such a jurisprudence in the hands of lawyers and judges. (9) Because originalist scholars and judges seek stability and closure from history and tradition, they easily fall prey to criticism that their enterprise is anachronistic, ahistorical "law office history" (10) rather than a genuine historical exploration of the norms, vocabulary, and world of the Framers. (11) "Tradition" is both dynamic and plastic, and that means that its deployment requires a high level of expertise and historicity, scrupulousness, and prudence. Bowers is a case where the Justices flunked this standard rather dramatically.

   1. Anachronism: The Changed Circumstances Problem

      One problem with using tradition to figure out original meaning is changed circumstances: The practices, laws, and even vocabulary familiar to the Framers often reflect a worldview very different from our own. Has the interpreter understood the circumstances of the past and applied its lessons defensibly to a modern problem?

      The majority opinion in Bowers v. Hardwick was a clumsy effort in this respect. Hardwick and another man were arrested for engaging in oral sex, which Justice White treated as the kind of "homosexual sodomy" that the Framers of the Fourteenth Amendment would have understood as a longstanding and notorious crime in 1868. Yet an actual American lawyer in 1868 would have had no idea what "homosexual" meant; the word was not coined until the end of the nineteenth century, (12) and no American sodomy law homed in on "homosexual sodomy" until 1969, fully a century after the Fourteenth Amendment was ratified. (13) If Justice White had explained that homosexual sodomy simply meant oral sex between two persons of the same sex, the 1868 lawyer would have remained somewhat baffled, for sodomy laws did not cover oral sex, another term Justice White might have been required to explain. Not a single American jurisdiction in 1868 identified oral sex as...