The unbearable "lite"ness of history: American sodomy laws from Bowers to Lawrence and the ramifications of announcing a new past.

• Author: Margolies, Neil

"On the surface, an intelligible lie; underneath, the unintelligible truth" (1)

Contrary to the most powerful claims of originalist scholars, history is not equipped to protect the Constitution from politically motivated interpretations. (2) This belief, grounded to varying degrees in the idea of an ascertainable and objective past, cultivated inside the vacuum of a legal community largely unencumbered by the methodological and epistemological questions dominant in philosophy and historiography. (3) Martin S. Flaherty's History "Lite" in Modern American Constitutionalism ("History 'Lite'") (4) partially changed this by introducing methodological checks to the anarchistic world of legal history; (5) but Flaherty's important work only dealt with half of the problem, acknowledging but not addressing history's implicit epistemological uncertainty. (6) This Comment explores this uncertainty and its ramifications through chronicling and analyzing the evolution of the legal debate over the meaning of America's sodomy laws over the last seventeen years from Bowers v. Hardwick (7) through Lawrence v. Texas. (8) Tracking the arc of this legal-historical debate reveals history's malleability. As seen in majority and dissenting opinions, oppositional historical accounts are grounded in the same set of facts. (9) The splintering of this one set of facts into two diverging factually supported historical accounts exposes legal history's capacity to shroud an agenda in facts. The different accounts replace the myth of history as an objective decisive entity with the reality that history is capable of disguising subjective, biased decisions. Accordingly, this Comment suggests an honest and realistic view of history that can immunize our courts from its dangers while preserving its unique utility.

As this Comment explains and defines history through the evolving legal debate over the scope and purpose of America's sodomy laws, it scrutinizes and explains this evolution through major works in the field of historiography, namely the writings of Martin Flaherty, Raymond Martin, Peter Novick, and Hayden White. As Flaherty explains in History "Lite" and I explore in Part II of this Comment, history's malleability can be attributed to the historian. Accordingly, with the aim of exposing this malleability, analysis here is both methodological and epistemological. Methodological scrutiny in the manner of History "Lite" is mostly relegated to Part I, whereas Parts II and III are concerned with reducing history to its essential components--brute facts and the more illusive meaning afforded to a set of facts. Recognition of history's true composition exposes its inherent manipulability.

Part I, "An Intelligible Lie: The (A)historical Methodology of Bowers v. Hardwick," serves the twofold purpose of introducing the legal debate over the history of American sodomy laws, as well as demonstrating history's susceptibility to methodological manipulation by viewing Bowers in the context of History "Lite." Scrutiny of Bowers through History "Lite" reveals a majority opinion supported by a selective reading of the past. This section argues that historical manipulations, such as those in Bowers, whether intentional or not, in the context of a history-reliant judiciary, misinform us about the past and in doing so steer us towards an unintended future. As History "Lite" instructs, however, these errors by historians are correctable. (10)

The same cannot be said for the problems arising from history's inherent fact problem. Part II, "The Unintelligible Truth: Postmodernism and the Lawrence Briefs," addresses the major historical briefs offered to the Court in Lawrence as practical examples of Peter Novick's (11) and Hayden White's (12) claim that one set of historical "facts" can tell many different "truthful" stories. (13) Novick's postmodernist position relies on what Judith Lichtenberg describes as "the distinction between a realm of facts (perhaps we should say 'brute-facts') and a realm of interpretation, which encompasses theories, narratives, stories, and generally the larger accounts that the historians (or other interpreter of events) set out to tell." (14) Novick contends that one set of facts can at a minimum, take on two different meanings. (15) Hayden White's The Historical Text as Literary Artifact explains precisely how Novick's ideal manifests itself in historical debates, and the Lawrence briefs actualize the ramifications of these abstract theories in our courts, revealing two contrasting stories grounded in only one set of facts. (16) The verification of Novick and White's abstract theory exemplified in the Lawrence briefs plunges legal history into the postmodernist abyss, revealing the notion of guidance from an objective past as an elusive fiction into factually supported subjective historical choices as the reality.

Part III, "Remains of the Past: The Lawrence Decision's Impact on History and Historiography" reveals Lawrence majority and dissenting opinions' darker ramifications on legal historical fact, before eventually attempting to purge legal history from the abyss by discussing the decision in the context of Raymond Martin's Progress in Historical Studies. (17) Marking the death of history as a reliable, objectively decisive entity, the historical interpretations of the majority and dissenting opinions offer examples of diverging historical opinions grounded in fact held by our highest court. While the ideal of a certain knowable past slips away, this section advocates recognition of progress in historical interpretations, as well as suggesting a manner in which this recognition can be made. While I consistently argue that history is capable of shrouding an agenda in facts, ultimately the argument is not against the usage of history in judicial decision making, but instead in support of an honest reappraisal of its decisional value; one that maximizes its uniquely illuminating aspects, while acknowledging its inherent shortcomings. In short, ideas about the past, by virtue of their malleable nature, are ill-equipped to dictate objective decisions, yet they remain uniquely equipped to aid courts in reaching just decisions in a manner similar to other subjective entities. The goal here is an honest and realistic examination of what history can, and cannot, tell us.

1. AN INTELLIGIBLE LIE: THE (A)HISTORICAL METHODOLOGY OF BOWERS V. HARDWICK

   When, in 1984, Michael Hardwick challenged the constitutionality of his Georgia state law conviction for engaging in sodomy, (18) the Supreme Court announced that the question turned on "whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so for a long time." (19) Since fundamental rights are decided under a history and tradition analysis, (20) this question seemingly supplied its own answer with the nebulously phrased conclusion that States have enforced these laws "for a long time." (21) Under a history and tradition analysis, however, a law that exists "for a long time" can be defeated if it no longer carries the meaning it did in the past. (22) Whether the sodomy laws of yesterday meant the same as the law enforced against Bowers should have been the essential question in this landmark sodomy case. It was not.

   Instead, the Court selectively read laws against sodomy in general as laws against homosexual sodomy specifically, deeming them constitutional for no greater reason than their existence alone. (23) The first part of this section highlights the Court's flawed methodology in the context of History "Lite"'s appraisal of Steven G. Calabresi and Saikrishna B. Prakash's The Presidents Power to Execute the Law. (24) The second part begins the deconstruction of history itself, addressing Chief Justice Burger's concurrence as a means to afford meaning to these laws through context.

   1. Bowers "Lite": How Bad History Became Bad Law and Formed the Legal Foundation of the Historical Homosexual Debate

      The Bowers Court decided that the right to engage in homosexual sodomy was not "'implicit in the concept of ordered liberty' such that' neither liberty nor justice would exist if ... [it] were sacrificed," and that it is not "deeply rooted in this Nation's history and tradition." (25) The Court upheld the Georgia statute prohibiting sodomy in general, ruling that there is no fundamental right to engage in homosexual sodomy specifically. (26) As a history and tradition-based decision, Bowers announced the factual legal history of homosexual sodomy laws as it stood in 1986, and would stand until Lawrence was decided in 2003. As such the Bowers decision provides the first judicially relevant history of American sodomy laws.

      As will become evident, the backbone of the Bowers decision consisted of the same basic brute-facts as the diverging historical accounts in the Lawrence briefs; the Court stated that: 1) sodomy was "a criminal offense at common law and was forbidden by the laws of the original thirteen States when they ratified the Bill of Rights," (27) 2) thirty-two of the thirty-seven States had sodomy laws "when the Fourteenth Amendment was ratified," and 3) "until 1961, all fifty states outlawed sodomy, and today [1986], twenty-four States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults." (28) Based on these historical condemnations of sodomy generally, the Court concluded that there is no fundamental right to engage in homosexual sodomy. (29) The Court did not explain these laws or place them in any context despite framing the question as to whether a fundamental right to engage in homosexual sodomy existed; it seemingly felt that listing these laws qualified as a thorough enough historical analysis on which to base its decision. Evidently aware of...