The Fact That X States Failed To Criminalize An Act in 1868 Does Not Mean That Committing The Act Is A Fundamental Right

An argument from Lawrence recurs in Dobbs.


Bowers v. Hardwick found that prohibitions on sodomy had "ancient roots." Justice White observed that when the 14th Amendment was ratified "all but 5 of the 37 States in the Union had criminal sodomy laws." He concluded that "[a]gainst this background, to claim that a right to engage in such conduct is 'deeply rooted in this Nation's history and tradition' or 'implicit in the concept of ordered liberty' is, at best, facetious."

Two decades later, Justice Kennedy cast doubt on this position in Lawrence v. Texas.

Having misapprehended the claim of liberty there presented to it, and thus stating the claim to be whether there is a fundamental right to engage in consensual sodomy, the Bowers Court said: "Proscriptions against that conduct have ancient roots." Id., at 192. In academic writings, and in many of the scholarly amicus briefs filed to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majority and concurring opinions in Bowers. Brief for Cato Institute as Amicus Curiae 16—17; Brief for American Civil Liberties Union et al. as Amici Curiae 15—21; Brief for Professors of History et al. as Amici Curiae 3—10. We need not enter this debate in the attempt to reach a definitive historical judgment, but the following considerations counsel against adopting the definitive conclusions upon which Bowers placed such reliance.

The Cato brief, which was written by William Eskridge, found errors with Bowers's historical account. The brief explained that states prohibited sodomy "as applied to male-female as well as male-male." Given this history, the brief argues, the "sodomy laws were aimed at public conduct and sexual activities that were not consensual." In other words, the laws were not targeted at disapproving of homosexual relationships. Therefore, the brief concluded, "[b]ecause of this incomplete reading of history and its inconsistency with Evans and this Court's privacy precedents, Hardwick's interpretation of the Due Process Clause should be overruled."

I have long been bothered by this passage from Justice Kennedy's opinion, and the argument from the Cato brief. (I became an adjunct scholar at Cato more than a decade after the brief was filed). I'll assume the Cato brief is accurate, and the Bowers Court's history was wrong. In 1868, X states criminalized all types of sodomy, and did not focus on consensual sodomy. Even if this fact were true, we cannot so simply conclude that consensual sodomy was a fundamental right. The failure to criminalize an act does not mean that committing the act is a fundamental right. Bowers, as well as Glucksberg, asked whether a right is "deeply rooted in this Nation's history and tradition." To show that a right to consensual sodomy is "deeply rooted," you need to show more than X states did not expressly criminalize it. This history, at most, suggests that the democratic process, and not the courts, made decisions concerning this conduct. Of course Justice Kennedy did not like the Glucksberg test. (Neither did Cato). But thankfully, he stopped short of overruling it in Obergefell. And I think the Gluckbserg test will make a comeback in Dobbs.

There is another comeback in Dobbs. John Finnis and Robby George filed an amicus brief that urges the Court to overrule Roe. They make a similar argument as the one adopted by Justice White in Bowers.

The Union in 1868 comprised 37 States, of which 30 had statutory abortion prohibitions. Most were classified as defining "offenses against the person," with  applying before and after quickening. And Congress, legislating for Alaska and the District of Columbia shortly after ratification of the Fourteenth Amendment, referred to unborn children as "person[s]."

Aaron Tang wrote a response. He argues that Finnis and George miscounted the states. Indeed, he splices the numbers in a similar fashion that Eskridge did.

This Article uncovers several historical errors on which the claim is founded. For example, the oft-repeated 27 figure includes states whose high courts interpreted the relevant abortion laws not to apply before quickening, or the first sign of fetal movement at roughly sixteen weeks of pregnancy. The 27 count also includes states whose abortion laws punished only particularly dangerous forms of abortion (e.g., via poison), while permitting safer procedures. Other mistakes abound. In one instance, pro-life originalists count a state as prohibiting abortion pre-quickening even though the relevant law was enacted after the Fourteenth Amendment.

After assessing the evidence, my best sense is that when the Fourteenth Amendment was ratified, just 15 of 37 states deemed abortion unlawful at all points in pregnancy. In the other 22 states, pregnant persons were free to obtain an abortion at any time before quickening. The public in most states would have thus understood most abortions—those performed before roughly sixteen weeks—to be perfectly lawful when the Fourteenth Amendment was ratified.

I have no idea who has the better count. For argument's sake, I will assume Tang is right. From an originalist perspective, the fact that 15 out of 37 states banned abortion at all stages is pretty damn good evidence that right was not fundamental. The threshold for a fundamental right is quite high. How can we say a right is fundamental if nearly half the states criminalized it? Again, Justice Kennedy and others reject the "deeply rooted" argument. Obergefell had to disregard the overwhelming majority of states that had protected opposite-sex marriage: Kennedy wrote:

The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.

Indeed, the reference to "ancient" sources in Obergefell was a not-too-subtle throwback to Bowers. But if we adhere to the Glucksberg framework, Tang's article supports the originalist case that abortion is not deeply rooted. For originalists, even if Finnis and George are wrong, and Tang is right, Roe still would be wrong.

Moreover, the fact that 22 states permitted abortion at certain stages suggests that this decision ought to be decided by the democratic process. This history supports the anti-Roe position: this decision about abortion belongs to the elected branches, rather than to the courts.

What would it take to make the originalist case that the right to abortion is "deeply rooted," and was considered fundamental in 1868? Perhaps if it was mentioned in the same breath as other well-known fundamental rights: the freedom of speech, freedom of conscience, liberty of contract, the right to keep and bear arms, and so on. We can cite chapter and verse to support these other rights. But simply looking to states that failed to criminalize an act is not enough.

I have long been critical of this line of reasoning from Lawrence. It was dubious in Obergefell. I hope it does not recur in Dobbs.

NEXT: What’s the Opposite of Facial Recognition?

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  1. Even if this fact were true, we cannot so simply conclude that non-consensual sodomy was a fundamental right.

    Slow down and proofread, Josh. It really doesn’t matter if your posts are delayed by a few minutes.

    Who argues that “non-consensual sodomy” is a fundamental right? No one, as far as I know. The pro-rape movement is pretty small.

    1. You mean other than Ken Starr?

      1. Artie, how come butt banging is at the start of all books on the Criminal Law?

      2. Kirkland, you think that Ken Star thinks that anal rape is a fundamental right? Seriously?

        1. I never asserted he thought it was a fundamental right. I sense he doesn’t like rape all that much personally, but makes allowances when it benefits him and the finances, reputation, and winning percentage of the institution that pays him.

          1. As extreme and virulent as Rev usually is, he actually has a decent point for a change. Ken Starr was on the wrong side regarding the protection of Baylor’s football team against multiple credible rape accusations. But protecting DI football players over a “normal” student is basically a job requirement for positions in the athletic department and high University offices.

            1. But protecting DI football players over a “normal” student is basically a job requirement for positions in the athletic department and high University offices.

              I’m going to assume that you are being cynical and/or sarcastic with this, rather than stating it as a valid principle.

              1. It definitely straddles the line. The Baylor example isn’t an isolated incident of Universities actively protecting the players and staffs of their football programs at the expense of other students, other humans, and/or common decency (remember Jerry Sandusky?). Nor is it the only way that football/basketball players are given special status by DI programs.

                However, you are correct. It is more a bitter form of sarcasm than an actual statement of fact.

    2. Regrettably I am unable to see RAK’s post. So I’m pretty sure he must be the one arguing in favor. Just stand up straight and back away slowly everyone.

    3. The whole post is misconceived. Josh spends most of it talking about sodomy, when his real gripe seems to be with Glucksberg, which he doesn’t bother to explain or elaborate upon, and which itself unhelpfully (for his argument) places abortion rights on the “fundamental rights” side of the equation. And I cannot for the life of me understand where he is getting the non sequitur of, “states have historically legislated in various ways in this area, so they should continue to do so.”

      Just more claptrap from the resident troll on staff. The post may disappear before too long, like the one where he wrote an elegy about a guy who complimented him once. It was, of course, primarily about himself.

      1. I like the deep dives into the background caselaw he writes.

        At least he’s not Stewart “The government has a need and right to strap a mind reading machine to your head and read all your thoughts” Baker who brings us his weekly screed about how all these damn privacy advocates need to shut up and let the government ban encryption and have full unrestrained warrantless access to every byte of data on the internet and in phone calls.

        1. They are shallow dives that seem deep to a downscale audience.

          1. To be fair, this probably does qualify as a “deep dive” at South Texas College of Law.

        2. Unfortunately, his “deep dives” tend to be misleading or mistaken. You shouldn’t rely on him as an authority.

      2. The argument is not, I think, that states should continue to strictly regulate abortion as a normative matter, but that they may, because when the Fourteenth Amendment was passed, broad abortion rights were not viewed as a fundamental right — and thus Roe v. Wade was wrongly decided.

        1. I think when Blackmun catalogued early abortion legislation in Roe, he was arguing that fetus’ were not persons in 1868, therefore not entitled to equal protection in 14th. Whatever argument this is misses several of Roe’s points, especially the holding that privacy, which encompasses the abortion decision, is a fundamental right in the liberty interest of due process clause of 14th (or 9th, Blackmun says ‘wherever it is … ‘). Whatever the argument is, I don’t see how it’s relevant to any of the caselaw.

          1. I’d be a heck of a lot more impressed with “Roe’s points”, if they ever got applied to anything that didn’t involve sex or abortion.

            1. I agree that there are plenty of things other than sex and abortion to which they should apply, but that’s not a reason to not apply them to sex and abortion.

              1. The fact that they’re not applied to anything else, though, tells me that they weren’t really taken seriously by the judiciary, they’re just an excuse.

                1. Or they may simply analyze it differently than you do.

                  1. I don’t see how you take ‘bodily autonomy’ seriously enough to justify abortion, but not seriously enough to strike down a lot of drug laws.

                    1. Gosh, if only there were a school of academic legal thought and research that has explored why strange discrepancies like this might exist.

                      (Critical race theory, in case that was too subtle.)

                    2. I agree with you that bodily autonomy ought to cover a lot more ground than it actually does, including drug laws. But, there are multiple principled ways to distinguish sex from drugs, and the fact that you don’t find them persuasive (and neither do I) doesn’t mean they’re hypocrites. It may simply mean they analyze them differently than you do.

                      One could argue, for example, that sex addicts are less likely than drug addicts to end up on the public dole since sex doesn’t interfere with one’s ability to maintain steady employment the way drugs do.

                    3. Actually, it does make them hypocrites. You can’t say “You don’t get to tell people what to do” when you only mean to apply it to killing fetuses and sodomy.

                    4. Nisiiko, suppose a nation’s sovereign says, “On this issue you don’t get to tell people what to do.” What then?

          2. The argument about privacy is unmoored from the Constitution’s text and historical evidence, though. Why did it take a century for anyone to realize that the Fourteenth Amendment was intended and understood to legalize abortion in the guise of medical privacy?

            1. why did it take almost two centuries for the 4th to include ‘reasonable expectation of privacy’ and not just trespassing? surgical abortion wasn’t a thing until 1960s, similar to how wiretapping wasn’t a thing until phones (and it still took 40 years from brandeis’ olmstead dissent to katz). I’m not ant-originalism but I did like it better when it was one tool in the toolbox that was better for some things, worse for other things, rather than ‘the only tool we can ever use’. I liked Alito’s dissent in US v Jones,

              The Court argues—and I agree—that “we must ‘assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.’ ” Ante, at 5 (quoting Kyllo v. United States, 533 U. S. 27, 34 (2001)). But it is almost impossible to think of late- 18th-century situations that are analogous to what took place in this case. (Is it possible to imagine a case in which a constable secreted himself somewhere in a coach and remained there for a period of time in order to monitor the movements of the coach’s owner? FN3- The Court suggests that something like this might have occurred in 1791, but this would have required either a gigantic coach, a very tiny constable, or both

              1. Katz v. United States introduced the “reasonable expectation of privacy” test as a framework to unify historical expectations and practice about searches with new technological developments in surveillance capabilities. It’s like wiretap laws that address listening, viewing or recording by a person “not visible present” at the place being surveilled; issuing a series of technology-specific decisions at appeals-court speed is not a useful way to handle the changes, so a framework for analysis is needed.

                Whether abortion is legal is quite a different question. The primary argument against abortion is that it kills a living being. That argument is not affected by the development of new techniques to perform abortions.

                1. but my point was simply that the court didn’t have to figure out whether medical privacy rights are fundamental in the context of abortion until medical abortions existed, similar, –but granted, not the same– to wiretapping and gps et al not requiring adjudication until they too existed.

                  1. Your argument is that drug-induced abortions were available before surgical abortions, but are not medical, and so do not implicate medical privacy? Can you elaborate on that distinction? It’s not apparent from my understanding of the terms or from the online dictionaries I’ve consulted, which say that “medical” relates to medicine or to the care or prevention of disease, and that “medicine” is similar and often excludes surgery when used in a more technical sense. I doubt the general public has ever viewed pregnancy as a disease to be cured.

                    1. milfestrone or whatever has been available since 1930s but it’s use as abortificant has always been a side-effect, and still is, to my knowledge, only combined with the other drug is it approved for abortions, and that recently. off-label prescriptions weren’t litigated anywhere to my knowledge, how could they be?

                    2. People have known of abortifacient substances for far longer than we have had the current preferred drugs for that use. Do you think states outlawed abortions before they could be performed?

                      But you are avoiding the question: How come surgical abortion supposedly introduced the question of medical privacy yet drug-based abortion did not?

                    3. You are mischaracterizing post’s argument. You are ignoring the practical reality that drug-induced abortions were indistinguishable from miscarriages which a) happen a lot and b) probably happened even more before the development of pre-natal care regimens. Absent some very clear evidence of both intent and action by the person seeking the abortion, drug-induced abortions were effectively unprosecutable.

                      Whether or not they were technically allowed under the law, we often largely tolerated them.

                    4. Rossami, what kinds of abortions do you think were prosecuted under these old abortion laws? Do you have any evidence to back that up, or just speculation? post hoc argued that surgical abortions were introduced in the 1960s, and this changed the legal calculus because of “medical privacy”. It simply does not follow that because many abortions were unprosecutable before, that a new kind of abortion is therefore constitutionally protected.

            2. I dunno, why did it take a century and a half for us to discover that the First Amendment protects free speech, or two centuries to discover that the Second Amendment protects an individual right to bear arms?

              The mid twentieth century saw a whole renaissance of sorts, in terms of enshrining core liberties and rights in our constitutional jurisprudence. A lot of basic rights you probably take for granted trace back no further than even the early twentieth century.

          3. If strongly regulating abortion didn’t violate anyone’s 14A right in 1868 it’s hard to see how it came to do so by any legitimate process. Does that observation pass the “relevant to any of the caselaw” test?

        2. You’ve basically just restated what I’ve said, re-phrased to obscure the circularity.

          Never mind the basic absurdity of the whole framing – it’s a classic example of an analysis where judges can reach the result they want by adjusting the level of abstraction. “Abortion rights” at the time of the Fourteenth Amendment? Not fundamental. “Privacy rights” – which include abortion rights under existing case law – at the time of the Fourteenth Amendment? Fundamental.

          The Cato argument on sodomy follows the same pattern. Are we talking about a right to engage in non-consensual sodomy, consensual sodomy per se, consensual sodomy between same-sex partners, etc.? Gosh, what’s the result you want?

          1. Blackman quotes the Cato argument: “William Eskridge… explained that states prohibited sodomy ‘as applied to male-female as well as male-male.'” Given this history, the brief argues, the ‘sodomy laws were aimed at public conduct and sexual activities that were not consensual.’ In other words, the laws were not targeted at disapproving of homosexual relationships.” That last sentence is a bit coy. No one ever suggested that “relationships” between girly boys was illegal. The suggestion that private buggery was legal if the participants didn’t intend it to be public is a stretch to derive from the “aimed at” claim.

    4. At first I thought it was some sort of typo, but then I realized what he was doing: If you conclude from the fact that not all states have criminalized consensual sodomy, that consensual sodomy is a fundamental right, must you not reason that the fact that not all states had criminalized non-consensual sodomy, that non-consensual sodomy is a fundamental right? The reasoning is identical, after all.

      He’s pointing out that the argument, “Not all states outlawed X, therefore X is a fundamental right” leads to absurd conclusions.

      1. He’s arguing in the context of assuming that those X (or N) states outlawed all sodomy, not only non-consensual or public sodomy. Non-consensual sodomy was still illegal in those states.

        Is there historical evidence to suggest that non-consensual sodomy was treated less hardly than other forms of sexual assault? Or are both sides of the argument missing some context? Here in Virginia, I understand that “rape” was historically only penis-in-vagina assault, and other laws covered other forms of forcible penetration with similar levels of punishment. (The state’s current laws no longer make that distinction.)

      2. All states criminalized non-consensual sex of all kinds including sodomy

        1. Certainly not in the context of marriage, they didn’t.

          1. Thank you, Mr. Bellmore.

            1. Don’t know what your problem is. I’m just making an accurate historical observation.

              1. And Mr. Marshall was just recovering a fumbled ball and carrying it a long way, into the end zone.

                I have no problem in this context. Like the Chiefs, I’ll just say “thanks.”

      3. I found Blackman’s effort at explaining the sodomy stuff rambling and incoherent, until I read the Cato brief, which made Blackman’s effort look like a pillar of logic.

        The Cato brief hops lightly from the fact that sodomy of all kinds was illegal in many States to the highly counter-intuitive conclusion that the anti-sodomy laws must have been conceived as a bar to public indecency and/or non-consensual sodomy, with nothing more substantial to support the leap, than gossamer threads of ipse dixit. Along the way we seem to pass through the curious proposal that all laws based on enforcing morality, must be efforts to estalish religion.

        I don’t blame Blackman for producing gibberish, if he was using the Cato brief as his source.

        1. I think he was actually responding to the Cato brief, not ‘using’ it. But, yeah, that brief was pretty embarrassing.

      4. No, that’s a logical fallacy. That X is true does not necessarily mean that not-X (or even anti-X) is not true. It’s true that whenever I fill my gas tank, it’s full. It does not follow from that that it’s not full at any other time. Maybe someone else filled it.

        1. Of course it’s a logical fallacy, that was the point: He’s employing reductio ad absurdum, to demonstrate that a failure to uniformly criminalize something doesn’t mean that it is a fundamental right.

      5. No, it was a typo. He’s fixed it.

        Rape was criminalized everywhere, AFAIK. You meant something different by “non-consensual sodomy”? Husbands buggering their wives in disregard of resistance?

  2. Blackman 1. “It would not violate the Constitution if a state were to criminalize a blow job (or cunnilingus) between an adult husband and wife. Or between adults who were dating.” Perhaps that’s even a correct summary of the law. Seems like something ISIS or the Taliban would do, rather than normal American politicians–regardless of their ideological or religious persuasiones.

    Blackman 2. The right to marry someone of a different race was not a fundamental right till passage of the 13th/14th Amendments. I suspect that he’s correct as a legal matter. But that point is a tough row to hoe, from any moral or philosophical position.

    1. What you say may be true, but not the basis for declaring a law unconstitutional. That is the rub — the fact that you, or 5 out of 9 justices, think that “normal American politicians” would never pass such a law, or that something is a “tought row to hoe, from any moral or philosophical position” does not make them beyond the Constitutional pale. Notice, in fact, that the laws you reference simply do not exist today. While abortion laws very much do (see Texas).

      And, more to the point, the fact that many states do have one legal regime is not a basis for the justices to impose their personal moral vision on the nation. At the time Obergefell was decided, all but one state, I believe, did not recognize same-sex marriage. The voters in the very blue states of California and Hawaii voted it down. Now that may have changed with time. Or maybe not. We will never know. But the notion that the opposite position was some weird Neanderthal outlier that any “normal” American would reject is absolutely contrary to the facts.

      1. Agree with all your points.

      2. You’re way, way off about the status of state laws prior to Obergefell. Did you not miss all the endless articles about how SCOTUS was just following the national trend?

        1. And also way, way off about us not knowing the popular opinion. It became majority support in 2012 and is now up to 70%.

          1. Resignation and fear. That’s all.

            Well, not all, but resignation and fear are a large component of it, how large we’ll never know as long as not falling in line can get you in trouble.

            1. Once again your telepathy manages to confirm your priors. Amazing!

              1. Let the courts get out of the way, and make it safe to take either side, and then see where the American people fall on this issue. You can’t judge opinion accurately in the presence of coercion.

                1. You can’t judge opinion accurately in the presence of coercion.

                  And yet, you purported to do just that!

                  1. His argument is that coercion made the 70% number, cited earlier, inaccurate. He did not proffer a supposedly more accurate number.

                    1. I not only didn’t proffer a supposedly more accurate number, I explicitly denied that accurate numbers are available under coercive conditions.

                    2. He said “Resignation and fear. That’s all.”

                    3. Then qualified that, on second thought.

                2. What is making it “unsafe” to argue that gay people shouldn’t be allowed to marry anyone they’d want to marry?

                  The Supreme Court didn’t create the social opprobrium you fear. People coming to realize that gay people are people, too, and deserve to live their lives in peace and security is what has made the contrary opinion so markedly out of place.

                  Stop being such a goddamn snowflake.

                  1. “What is making it “unsafe” to argue that gay people shouldn’t be allowed to marry anyone they’d want to marry? ”

                    Gee, I don’t know. Maybe you should ask Brendan Eich.

                    No, the Supreme court didn’t create the pogrom, they just gave into it.

                    1. Brett, once again, I must remind you that not all of us are conversant in the code-words and shibboleths of the right-wing feversphere. If you want me to understand your insinuation by citing Brendan Eich, you will have to make your point directly, rather than expecting me to somehow discern what his example demonstrates.

                    2. Apparently he was pushed out as CEO of Mozilla in 2014 because he’s anti same sex marriage. A very very minor character in the FNCU. But I don’t know how you’re supposed to be a good leader of a large and diverse technology company if you think that some of your employees should be legally prohibited from having their family.

                    3. He was pushed out because he’d donated to a winning ballot proposition, after they leaked the donor list. That is to say, he was kicked out of his job for being on the MORE popular side of the issue.

          2. If it is so popular, why did it need to be a made up Constitutional right? It could have just been legalized in the various states, who could have then become the Vegas of same sex marriage. Just like abortion. Want an abortion? Go to a state where it us legal. I’m sure Planned Parenthood (aka Eugenics R Us) could fund the travel.

            1. But would other states have recognized it? It’s not that long ago that some states refused to recognize divorces from other states. There’s a North Carolina case from, I believe, the 1940s in which a married couple went to prison for bigamy because North Carolina refused to recognize their Nevada divorce.

            2. The popularity is irrelevant. If you accept the rule of law (and equal protection under the law, which forms its foundation), restricting marriage (a voluntary contract between two parties) to heterosexual couples is clearly a violation.

              The Fourteenth Amendment, which established that premise as a Constitutional right, means that your choices are for man/woman, woman/woman, and man/man marriages to be equally valid or for none of them to be valid. The fact that tradition, religion, or cultural bias rejects same-sex marriage fails in the face of equal treatment.

              1. Why isn’t it “clearly a violation” to restrict it to two parties?

          3. Polls are notoriously inaccurate and can be skewed to where the pollster wants to go. In Hawaii and California, they actually had votes, where SSM lost (albeit by modest majorities).

            Had Obergefell gone the other way, it is likely that some states would have adopted SSM anyway. I think Vermont did, and New York, a major state, was well on its way. As time when on, it is likely that more would.

            But as I said, we will never know, because the issue was forced on the nation by a majority of justices.

            1. Vermont was the first state to legalize it without being compelled to by a court ruling. NY, as I recall, had largely been forced to recognize such marriages before the actual legislation.

            2. The votes in Hawaii and California were in 1998 and 2008 respectively. Opinions changed rapidly since then.

              1. Would they have changed if the votes were allowed to matter?

                1. I see no reason why the polling would be different if there was or was not a vote. For one thing, Maine which rejected gay marriage in 2009 and then reversed course in 2012.

                  1. What would happen if they reversed again? Is that even possible?

                    1. Not a chance. Brett is like one of those Japanese soldiers emerging from a cave twenty years after WWII, not knowing his side lost.

        2. Many states still have statutes against same-sex marriage, including California.

        3. Is it appropriate for courts to make new federal law if there’s enough of a trend among states, whatever “enough of a trend” might be?

          1. No, it’s not, because it’s not appropriate for the courts to make new law in the first place. And because who’s to say that the trend wouldn’t stop and reverse if the courts didn’t intervene? The courts doing this prevents the states from trying something out, and deciding it was a mistake.

          2. Is it appropriate for courts to make new federal law…

            No. Next question.

          3. Requiring equal treatment under an existing law and creating new law are two different things. Ruling that marriage (which has a shit-ton of laws regarding the rights conveyed) is equally applicable to same sex couples and opposite sex couples isn’t a new law.

        4. If you actually bother reading that, most of the “state laws” were a result of judicial decisions, many at the federal level. And they experienced significant pushback in terms of constitutional amendments (Massachusetts and Hawaii, both very liberal states) and DOMA.

          So, no, all that shows is that the judiciary prior to Obergefell was quite active.

          1. Obergefell didn’t decide the fight, it just ended the hope of reversing what the lower courts had already done.

            1. The fight is over. The proof is that most people, especially most young people, just don’t care that same sex marriage is legal. And people don’t care because it doesn’t impact anyone but the couple and the idea that same-sex marriage is some sort of moral monument to all that is good and decent and right seems ridiculous. Because it is.

    2. It’s not the job of judges to read their moral or philosophical positions into the Constitution.

      Why would you, by your omission, make it necessary to have this pointed out to you?

  3. “The failure to criminalize an act does not mean that committing the act is a fundamental right.”

    I’ve been telling the concealed carriers that for the past ten years.

    Four and a half years ago, I wrote this article making the same point about homos, motherf*ckers, and concealed carriers.

    1. Well, sure: The fundamental right isn’t concealed carry, it’s “carry”.

      I was politically active in Michigan when we were fighting for CCW reform, and the reason we were fighting for it wasn’t because we thought concealed carry was a right. In fact, Michigan was, legally, an open carry state.

      The reason we were fighting for it was that the cops would give you grief over carrying openly in some parts of the state, would lie about you having either concealed it, “Your coat obscured view of the holster for a moment, that’s concealing the gun!” or brandishing it if you went to any special trouble to keep it visible. And there was no middle ground for these cops, you were doing one or the other.

      Concealed carry solved that, because the cops wouldn’t hassle you over a gun they didn’t see. And if they did see it, you had the permit to prove your legal right. CCW reform solved a very real problem.

      The problem with harping on concealed carry not being a right, is that too many places won’t allow open carry, if you can’t concealed carry, you can’t carry at all.

      1. The reason we were fighting for it was that the cops would give you grief over carrying openly in some parts of the state, would lie about you having either concealed it, “Your coat obscured view of the holster for a moment, that’s concealing the gun!” or brandishing it if you went to any special trouble to keep it visible. And there was no middle ground for these cops, you were doing one or the other.

        If only Brett were this cynical about cops when black people are involved.

        1. The idea that cops routinely “set up” or gun down law-abiding blacks is a malicious lie.

        2. I follow the statistics. I’m sure the cops are often awful when black people are involved, but they’re not disproportionately awful when black people are involved, once you control for relative crime rates.

        3. If only David would take his partisan blinders off and stop accusing everyone of racism merely because they disagree with him.

          Can’t you see that you’ve become the Boy Who Cried Wolf? When you accuse everyone of racism, you demean and diminish the term to the point that accusations about real racism get dismissed as more of the same overblown histrionics. Politicians on the right do the same thing with accusations of “terrorism”. Please stop.

          1. Not everyone is accused of racism. Mostly, it is just the racists (who also tend to be xenophobes, gay-bashers, and misogynists) who are called racists these days. And the racists object because they no longer wish to be known as racists, thanks to recent decades of American progress.

            Good people do not let racists hide behind euphemisms such as “traditional values,” “conservative values,” “colorblind,” “heartland,” “family values,” and the like. Better Americans call a racist a racist in modern America.

          2. I did not accuse Brett of racism. I accused him of having blinders on such that he recognized police abuse when it happened to people like him but didn’t notice when it happened to other groups of people.

            1. I’ll accuse him of racism, lol.

              1. No doubt you will. All it means is that I had the nerve to disagree with you about something, that’s all ‘racism’ means these days.

                I don’t claim police abuse doesn’t happen to blacks. I will claim, however, based on public statistics, that it doesn’t happen disproportionately to blacks. As I say, once you control for relative crime rates, (Based on victimization surveys, who blacks themselves say are committing crimes against them.) blacks don’t get in any more trouble with the police than whites. If anything, on a per encounter basis, whites are a bit more likely to be shot by the police.

                1. I think being a racist, and being tone-deaf on racial issues, are not necessarily the same thing.

                  1. You think I’m tone deaf, but the truth is I’m more tone indifferent. If I think a position is right, I don’t care what somebody thinks about the “tone”.

                    Tone easily becomes an excuse to demand that people shut up about inconvenient facts, like the statistics concerning police encounters and crime rates.

                2. No it’s because you infantilize black people and claim stupid things like the civil rights act is the same as slavery.

            2. Yes, you did. Absent, I will add, any scintilla of evidence.

              And you just did it again. How is ~”caring about ‘people like him'” but not blacks not racism in your explanation of the term?

  4. Even if an unborn baby is a “person” under the 14th, I would argue that he or she has not yet been “born or naturalized” and so is not covered.

    1. Not covered by what?

      1. I presume: not covered under the 13th (or any other) Amendment. That’s just my guess, though.

        1. Is it legal anywhere in the US to kill a person on the basis they are not a born or naturalized US citizen? I thought citizenship was irrelevant to the actus reus.

      2. Not covered by the Equal Protection Clause or its implications.

        1. The EP clause applies to all persons, not just citizens (including those born or naturalized in the United States). Moreover, Justice Blackmun noted in Roe:

          The appellee and certain amici argue that the fetus is a “person” within the language and meaning of the Fourteenth Amendment. […] If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment.

    2. Even if an unborn baby is a “person” under the 14th, I would argue that he or she has not yet been “born or naturalized” and so is not covered.

      Yeah, this is a misreading. You only have to be born or naturalised in the US to make it to “citizen” from mere “person” – you don’t need to be born or naturalised in the US to make it to “person.”

      What you need to do to make it to “person” is not specified – hence the effort by Finnis et al to argue that the original meaning of “person” in the 14th Amendment included the unborn. And the corresponding , long-standing, efforts on the other side to assert the contrary.

    3. Aliens are “covered” by the 14th A if under US jurisdiction. Apparently you don’t realize this.

  5. Rights for women are a relatively modern creation. They wouldn’t have been mentioned in the same breath as other well-known fundamental rights if the mentioning was done 100+ years ago, because at that time it was more or less assumed that rights were biased towards males while women were at home raising the kids and so on. The history of rights with women in mind is short, so reference to prior male dominated history is nearly nonsensical.

    But the blackman kid is correct, in so far as the court should slop together some other reasoning when they overturn roe.

  6. The briefs by “Finnis and George” & “Tang” are for which amicae? The links just take us to the very long docket at SCOTUSBlog.

    1. Finnis and George have their very own brief. Ctrl+F.

      Tang is a separate post, not an amici brief. Follow the link.

  7. “Obergefell had to disregard the overwhelming majority of states that had protected opposite-sex marriage”

    Protected opposite-sex marriage? Really? What does that even mean? States that banned same-sex marriage? How does banning same-sex marriage “protect” opposite-sex marriage, any more than allowing same-sex marriage “protects” opposite-sex marriage?

    1. Yeah, um, he kind of tips his hand there, doesn’t he?

    2. Nothing the lawyer does will ever change the fact, homosexual marriage will never be anymore than a friendship. The privileges of marriage are to promote reproduction, the sole purpose of life.

      In addition, homosexual marriage was not a homosexual idea. It was a family law idea to drum up business for a failing specialty.

      In places where homosexual marriage has been legal for the longest time, the rate is still a tenth that of heterosexuals. Homosexuals are smart and rich. They are not falling for your lawyer trap.

      1. If that were the case, marriage would not be permitted between persons for whom no conception was medically possible; those past menopause, those otherwise infertile, etc. Yet no such restriction has ever been widely implemented (and if at all, so obscure as to be unheard of by most).

        It also ignores surrogacy, sperm donation, and other means of conception, and that there’s no shortage of children in foster or state care that would benefit from a 2 parent home.

        So as typical for the homophobe set, your argument is fundamentally flawed and shows no indication its author is capable of complex thought or intellectual honesty.

        1. Reproduction is still the purpose of marriage, even if some hetero couples do not have kids.

          1. Perhaps, but it seems needlessly spiteful to deny it to people in love.

            Why stop it, other than fear of an angry man in the sky? Let him kill his own political enemies, thanks.

            1. The primary problem with the Court imposing SSM on the nation, is that it was quite clear it wouldn’t stop at allowing SSM. As Masterpiece Bakery demonstrates.

              In a free country, you could allow SSM, and it wouldn’t be any imposition on people who were opposed to it. We aren’t that free country. Declaring something a right has consequences for people who don’t want to be involved in it.

              1. Yet another of Brett’s sorrowful “Oh, how I wish I could be libertarian, but we have to change other laws first.”

                Brett is also wrong factually, in that Masterpiece Cakeshop (and similar cases like Elane Photography) cannot demonstrate what he thinks about “the Court imposing SSM on the nation” because they predate “the Court imposing SSM on the nation.” These states made sexual orientation part of their public accommodations laws before they declared gay marriage a right, and therefore could not be a consequence of doing so.

                1. Don’t be an idiot. The application of Colorado’s public accommodation laws to a SSM in 2012, at a time when SSM wasn’t legal in Colorado, was part of the judiciary’s push to force the legalization of SSM.

                  I am a libertarian. I’m a libertarian from an era when libertarians agreed that public accommodations laws were an abomination in a free society.

                  1. “I’m a libertarian from an era when libertarians agreed that public accommodations laws were an abomination in a free society.”

                    So…a racist?

                    1. No, somebody principled enough to not abandon my principles if I’m accused of being a racist.

                    2. It’s just that in that era you are talking about it was just a bunch of racists finding a convenient new excuse called “libertarianism” to oppose the Civil Rights Act.

                    3. No, it was people who had a principled enough attachment to liberty that we would defend the liberty of people we didn’t like, to do things we didn’t approve of, so long as those things didn’t involve actual aggression. We didn’t think drugs should be legalized because we approved of drugs, but because we thought people were entitled to rot their own brains if they wanted to.

                      Modern ‘libertarians; tend to run away screaming from that sort of principled stance.

                    4. Weird that the principled attachment suddenly appeared in conservative circles right after one of the greatest triumphs of the Civil Rights Movement.

                    5. “we would defend the liberty of people we didn’t like, to do things we didn’t approve of, so long as those things didn’t involve actual aggression”

                      So, same sex marriage.

                    6. Hence the fact that I’m objecting to the judge’s actions on the basis of over-reach, not what the couple is doing. Just because I’m like, “Whatever, just leave me out of it.” when it comes to SSM, doesn’t mean I have to think the judicial branch is entitled to alter the country’s laws to suit their own preferences.

                      There are concerns about outcomes, and concerns about the procedures by which they’re arrived at. Do you just ignore the means so long as you like the ends? I don’t.

                  2. The application of Colorado’s public accommodation laws to a SSM in 2012, at a time when SSM wasn’t legal in Colorado, was part of the judiciary’s push to force the legalization of SSM.

                    No, Brett. The application of Colorado’s public accommodation laws to a SSM in 2012, at a time when SSM wasn’t legal in Colorado, was a straightforward application of statute, which had been amended to ban discrimination in public accommodations on the basis of sexual orientation in 2008.

          2. Reproduction is still the purpose of marriage, even if some hetero couples do not have kids.

            Weird how none of the major religions seem to include that in their wedding vows, if that’s “the purpose” of marriage.

            1. Not only that, I love how he says it’s “the” purpose of marriage, as if marriage could serve no other purpose.

      2. Nothing the lawyer does will ever change the fact, homosexual marriage will never be anymore than a friendship. The privileges of marriage are to promote reproduction, the sole purpose of life.

        I miss the egg-and-sperm guy.

      3. Reproductive ability is not and never has been the requirement for marriage. Sterile heterosexual couples are married. A vasectomy doesn’t invalidate a marriage. Removal of the ovaries doesn’t invalidate a marriage. Duh.

    3. Yeah, all 50 states have been totally swell with opposite sex marriage forever. Really unfortunate wording on the part of the author. Kinda demonstrates his lean.

      1. “Yeah, all 50 states have been totally swell with opposite sex marriage forever.”

        I’m unclear as to your point here. They actually have been. Some of them were a bit hostile to opposite sex marriages between different racial groups, though, but the legality of opposite sex marriage is basically universal, and predates recorded history.

        1. His point is that since heterosexual marriages have been a universal norm throughout history and still are, it’s ridiculous to assert that banning same-sex marriage is somehow “protecting” heterosexual ones. They didn’t need protection, and even if they did, banning gay people from entering them has zero connection to that.

          1. There was an argument that SSM was a bit of a “Trojan Horse” intended to destroy marriage from ‘within’, but, honestly, heterosexuals had mostly already accomplished that. My chief concerns were that it was over-reach by the judiciary, and the predictable consequences in terms of stripping away the rights of people (Like Masterpiece Bakery.) who didn’t want to be complicit in it.

            1. And once again, you have your timeline 100% backwards. Consequences cannot come before their cause.

              1. The cause was the judicial determination to impose SSM. Masterpiece Cake as a consequence of that cause, that preceded the legality of SSM.

                1. Masterpiece Cakeshop was a statutory case. It was not caused by judicial anything. It was caused by the legislature’s desire to include sexual orientation in its public accommodations law. (Well, that and an asshat’s desire to make a point by pursuing the owner of the bakery.)

                  1. I thought the would-be customer honestly sought out Phillips because of the latter’s reputation. On the other hand, I think the would-be transgender customer in the current case specifically targeted Phillips.

  8. I like this reasoning by Eskridge. There also was no ban on personal possession of fissile weapons in 1865!

  9. You have to hand it to Blackman. Whatever wisdom there may be in chaotic scholasticism, he seems determined to find it.

  10. “Obergefell had to disregard the overwhelming majority of states that had protected opposite-sex marriage”

    Seriously Josh? Refusing to recognize same sex marriage is protecting opposite sex marriage? What a garbage take, and an outright confession of ‘I oppose those f*s getting married!’

    1. {Disclosure: My goal for the rest of 2021 has been to try and emulate Eugene Volokh’s manta, re online commenting, that, “I would not post something about someone that I would not say to their face at a cocktail party.” A great sentiment and a noble goal. I’m gonna fail miserably here. (But will continue to try after this, in hopes of improvement.) }

      Once is a while, Josh makes a point that I kind of agree with. Most of the time, I find his reasoning unpersuasive, and sometimes wacky. (I’m doing okay so far, re EV’s advice.) But sometimes Josh posts something that is so intellectually and morally dishonest, so awful, so mendacious and tendentious, that it makes him look like an worthless sack of shit.

      There are a handful of commentators here that write similarly bizarre comments. But, they are not law professors. They are average people, are almost universally not lawyers nor law professors, and therefore get a built-in excuse from me. I still hold Josh Blackman to a higher standard. Although, God help me, I guess that shows my own stupidity. (Fool me 287 times; shame on you. Fool me 288 times; shame on me.)

      On the 12th, the VC posted from Prof. Braver, who was giving a respond to Randy Barnett. I really hope everyone here at the VC read it. Doesn’t matter if you agree 100% with either of them. What was incredibly impressive was the tone and manner. Braver was polite, even when suggesting some really weak scholarship by Barnett. It’s what debate and arguments should look like. Sadly, Braver will be here only a short time. But I hope that we all will start using “The Braver Standard” to describe VC debates and disagreements that are done cordially, but unflinchingly.

      p.s. Josh Blackman; you are a terrible terrible human being. [Probably, my 2022 New Years Resolution should be: Try and adopt the Volokh Standard for everyone who is fortunate enough to not be Josh Blackman.]

      1. Wow…did you really get fooled 287 or 288 times? 🙂

        Have a meaningful fast, SM811.

      2. ” My goal for the rest of 2021 has been to try and emulate Eugene Volokh’s manta, re online commenting, that, “I would not post something about someone that I would not say to their face at a cocktail party.” ”

        How often do you figure Prof. Volokh uses a vile racial slur (let alone to the face of a Black person) at a cocktail party? How often does his blog publish vile racial slurs?

        The answers to those questions dismiss the claim you seek to emulate. Prof. Volokh’s claims to be a champion of free expression and to adhere to civility standards are as weak as his claim to that he and his blog are libertarian.

        1. I have been to social events at Prof. Volokh’s house well over a 100 times. Maybe even in the hundreds, since I’ve known him from law school in the 80s.

          When I next hear Eugene Volokh use any sort of slur outside of a quotation or when making a legal point; it will be the first time for that. I consider it a personal value that, after 30+ years of friendship, I and others have been unable to bring Eugene to the more liberal sides on some issues. But, Eugene, on a personal level, is just an incredibly kind, gentle, generous, warm person. And that’s true–in spite of whatever grievance (real or imagined) you have with him regarding how he’s treated you on his various EV website.

      3. Agreed on the Braver piece. I was shocked to see Eugene post a lengthy rebuttal to a co-Conpsirator here, but glad to see it. Jonathan’s response to Josh’s amateurism was also nice to see. A welcome respite to Josh’s word-vomit.

        Personally, I would have no problem calling Josh a terrible human being to his face at a cocktail party.

        1. I would mostly for the logistical reason that I wouldn’t be surprised if he’s never invited to one, even (or especially) the ones involving conservative stalwarts.

  11. I’m no fan of Kennedy’s opinion writing, but Lawrence and Obergefell do not rely on the reasoning in the OP. Taking issue with part of a paragraph doesn’t really address the opinions generally.

  12. “Moreover, the fact that 22 states permitted abortion at certain stages suggests that this decision ought to be decided by the democratic process. This history supports the anti-Roe position: this decision about abortion belongs to the elected branches, rather than to the courts.”

    Hell, why even have courts – just leave everything to the legislature! /sarc

    You’d think a law professor would understand the concept of checks and balances.

    1. The courts aren’t supposed to be making policy, though. They’re supposed to be applying rules other people originated. Because there are levels of rules, they’re permitted to over-ride lower level rules on the basis of higher level rules. But this is an aspect of applying rules, not a right to toss them.

      The Constitution does say that the failure to enumerate a right can’t be taken to mean that it isn’t a right. But that wasn’t a blank check for the judiciary to invent rights. They need to be able to demonstrate that an unenumerated right actually was viewed as a right at the time the Constitution was adopted, to justify striking down laws.

      That something was widely criminalized is pretty good evidence that it wasn’t viewed as a right. This doesn’t require it to have been uniformly criminalized.

      1. “. . . at the time the Constitution was adopted. . . .”

        So we’re supposed to live by 18th century social and legal standards and mores in perpetuity?!?


        1. No, but the way to make those changes in law is through the political process, not for judges to issue policy mandates based on shadows and penumbras.

          1. I’ll agree many changes should go through the political process BUT NOT EVERYTHING.

            You think miscegenation and SSM laws would have been overturned via the political process?

            1. Someone made the argument up-thread that SSM laws were already being changed through the political process before Obergefell and even Windsor, although that was by reference to a list that showed 80% or more being legalized through “court order”.

              1. Let me re-phrase my question.

                You think miscegenation and SSM laws in Texas, Alabama, Mississippi (etc.), would have been overturned via the political process?

                1. Yes, by amending the federal constitution if not by state action.

                  Those places are not the hellscapes that you seem to think. I have a cousin who lives in Lubbock, Texas. Her wife will not contemplate living anywhere else. Neither of those Supreme Court cases caused or changed that opinion.

            2. Miscegenation laws WERE overturned via the political process.

              1) They were never universal, they were mostly a Southern thing. Only 7 of the original 13 states had them at the founding.

              2) They were barred by the 14th amendment, which, irregularities aside, was adopted by the political process. Courts immediately began overturning them on the basis of the 14th amendment, before the Supreme court reversed those decisions with Pace v Alabama.

              3) Most such laws had been repealed by legislatures before the Supreme court undid its mistake with Loving v Virginia.

              SSM was rather different, in that it was universally not recognized in the US before the courts started imposing it.

            3. “The rules are only important when they don’t mean I lose on some issue I care about.” That’s what you’re saying.

              No, every last stinking change should go through the political process.

              1. Heller and McDonald didn’t.

                1. Heller and McDonald weren’t a change to the law. They were only a case of the courts starting to enforce it where they had previously refused.

                  1. Well THAT’s convenient. So basically every result you like isn’t a change in the law it’s just courts deciding to enforce it but every result you don’t like is an amendment outside the political process.

                    Is that a fair statement?

                    1. Yes, it is convenient that gun owners had an actual, explicit, written down on the parchment and everything, perfectly on point constitutional amendment, and SSM advocates… didn’t.

                      Very convenient, but actually having the text of the highest law of the land on your side IS supposed to matter, isn’t it? It’s kind of a relevant difference, I think.

                    2. It should. But you and originalists don’t apply the plain text of the Eighth Amendment and they start talking about irrelevancies about all the horrible ways 18th century people treated each other as if that’s supposed to matter to what is plainly stated.

                    3. Look, the word “unusual” is right in there, and what’s the word before it? Oh, yeah: “and”.

                      The 8th amendment didn’t ban punishments on the solitary basis that they’re “cruel” in some random person’s opinion. It bans them on the basis of their being cruel and unusual.

                      It was to stop judges from getting creative about torturing people, not to keep the legislature from deciding how long a sentence a crime should carry. Just as a historical matter. But, try to get judges to admit an amendment was intended to protect people against themselves… They just can’t see it.

                      Now, I happen to think the 8th amendment is grossly under-applied, on the fines end of things. And perhaps should be interpreted to require making defendants who are acquitted whole. How can a fine not be excessive if you’re innocent? But excessively long sentences being specified by the legislature? Maybe it would be a good idea to have an amendment prohibiting those, but the 8th amendment isn’t it.

                      I also think it’s a total crock that the Supreme court decided that the 6th amendment didn’t really apply to “all” crimes. It would be a very different justice system if I had my say.

    2. Hell, why even have courts – just leave everything to the legislature! /sarc
      You’d think a law professor would understand the concept of checks and balances.

      You must be kidding.

      First of all, the traditional function of courts is to apply general laws to individual cases. If someone allegedly breaches a contract, or infringes my patent, or violates a criminal statute, then a court decides whether that is indeed the case, and if so what is the appropriate result.

      Second, checks and balances are fine when the People, who are sovereign, have put in a provision to the Constiution. The Bill of Rights was adopted by the People. If Congress ignores one of them and passes something that infringes them, or if some overzealous prosecutor or bureaucrat tries to apply general laws in a way that infringes the Bill of Rights, then certainly it is the job of courts to “check and balance” them.

      What we are talking about here is invented rights. The People never even remotely enacted a federal Constitutional right to abortion or SSM. They were invented by the judiciary, which if you cut through all the rhetoric, amounted to “we don’t think this is fair.” A perfectly fine sentiment for a legislator. An awful sentiment for a judge.

  13. One problem here is treating any particular sexual act as a right as opposed to the right of all adults to have sexual relations with other adults in private regardless of what form those interactions take. That’s the right, not whether someone has a right to a foot-job or sex while wearing furry outfits or anything else.

    1. This. Thank you.

  14. I’m having trouble understanding why history or tradition are relevant. History and tradition include slavery, indentured servitude, women being the property of their fathers or husbands, public floggings, girls being married off at age 12. In sum, there’s a significant body of history and tradition that we are well rid of.

    I’ve said it before: If the authors of the Constitution came back from the dead, one would be hard pressed to find a group of people with views further out of touch with modern views on pretty much everything. So why are we still giving them power to decide matters of policy? Go by what we consider to be a fundamental right, not what they did.

    1. We’re not giving them power to decide matters of public policy. If you could raise the founders from the dead, they’d have no more say over public policy today than anybody else.

      We’re applying the rule of law, a part of which is that the law does not change its meaning until formally amended. This doesn’t empower the dead, it denies power to strategically placed living people to informally change the law outside the legal process for doing so.

      The process of formally changing the law assures democratic legitimacy in the here and now, because it requires those strategically placed individuals to go through steps which are dependent on the democratic consent of today’s living population.

      They can’t simply assert that public opinion has changed, and change the law, without voting in the legislature to enact statutes, without drafting and ratifying constitutional amendments. Without the procedures that stop them from ruling as dictators over us while claiming to do our will.

      1. “This doesn’t empower the dead, it denies power to strategically placed living people to informally change the law outside the legal process for doing so.”

        This is completely wrong. Historical inquiry is conducted by people living in the present and how they do it is an exercise of power.

        It enhances the power of living people by giving them a claim to legitimacy based on their potentially idiosyncratic and cherry-picked reading of historical sources. It also is based on a complete obscuring of the text from what is understood by regular people. Instead of a commonly held understanding of cruelty, we are governed by whatever Neil Gorsuch and Clarence Thomas and their clerks think it meant to the “average man on the street” in 1791 based on their truncated exploration of old dictionaries no one has access to, old English court records no one has access to, and whatever nonsense Randy Barnett came up with in Obscure Originalist Quarterly that no one else is reading.

      2. Simply asserting that public opinion has changed is not what I’m advocating. I have never said that judges should simply say, “We don’t like this result so we’re ignoring what the Constitution says.”

        Rather, interpret things as we understand them today, not as the framers understood them. What do we understand to be cruel and unusual? What do we understand to be equal protection, or due process? Saying that in 2021 a public flogging would be considered cruel and unusual, even though no framer would agree with that, is not rewriting the Constitution. It’s applying it to modern times.

        1. “Simply asserting that public opinion has changed is not what I’m advocating.”

          “Rather, interpret things as we understand them today, not as the framers understood them.”

          I’m not seeing the distinction here. How do you establish how “we understand them today”, if not either simply asserting that public opinion has changed, on the one hand, or following the formal procedures that allow the public to have a say, on the other?

          I don’t see how you’re doing anything here BUT “simply asserting that public opinion has changed.”

          1. The distinction is this: If I were to say (as another commenter here actually did say a few threads back) that the Fourteenth Amendment should only apply to white people, that would be a re-write of the Constitution, because there is no plausible way to arrive at that interpretation. Anyone taking that position is simply ignoring the Constitution.

            If, on the other hand, someone says that the Fourteenth Amendment protects women from sex discrimination, even though probably none of the framers of the Fourteenth Amendment thought that, that is not a rewrite of the Constitution, because you can plausibly arrive at that interpretation from the language of the text.

            And that’s the standard: Is this interpretation plausible based on a reading of the text, whether or not it’s the specific interpretation the framers would have given it. What really separates us is that you think the one and only interpretation the framers would have given it resolves the issue. I think that if there are multiple plausible interpretations of what the text says — and I don’t give a shit what the framers thought it said — we are free to go with any plausible interpretation. And there are almost always multiple plausible interpretations.

          2. I believe he is saying, for example, that an ideal/concept/law/Amendment has subtext and widening that “hidden premise” to be broader than the Founders imagined isn’t new law or just following opinion.

            The best example is that when you Founders talked about “all men” being created equal, they meant free, white, landholding men. The “universal” rights they were asserting had, in there minds, very obvious and valid restrictions. Today we don’t see gender, race, or landholding status as relevant to the application of rights.

            So if the marriage contract is allowed between two adults, back then it was a man and a woman. Now, most people view it as any two adults. Not a new law, nor contingent on public opinion, but applying an established right to all people equally.

          3. Crap. *Their* minds. One of yhe most irritating grammatical errors out there.

    2. Well I suppose they are relevant because the Court says they are relevant.

      More broadly, trying to use the granular details of “history” to determine anything, let alone whether something is a fundamental right, is a fools errand anyway, particularly for how this Court practices it.

      I mean how does this work in practice? Lawyers for the parties prepare briefs that are going to be pieces of pure advocacy for a legal outcome. Then, judges (who are not historians) with several other cases and things to work on along with their law clerks (who are also busy) somehow come up with a definitive historical determination that is supposed to provide a definitive answer to govern all of us in less than a year. Maybe they’ll read a “historian’s amicus brief” but those are actually kind of controversial in the historical community. And, not for nothing, the types of judges who insist that they can discover concrete answers from their truncated study of history are probably the least likely to seriously engage with the work of actual historians who they probably view as simple partisan ideologues.

      But doing the work of historical inquiry takes time. There’s a reason dissertations take years: they take much more time and research than a judicial opinion or law review note.

      It is true, that law needs to work at a much faster pace. Courts and lawyers can’t spend time doing diligent independent historical research when people’s rights and liberties might hang in the balance. But the time crunch is a reason to not stake clams about historical definitiveness as the governing mechanism for rights (or ohter topics).

      This isn’t to say that there are no lessons for judges and lawyers to be gleaned from historical research, or that something from history can’t inform a result. Just that deciding that this truncated exploration is going to be the definitive answer for all time is completely absurd.

    3. “Living Constitution,” ladies and gentlemen.

      1. You say that like it’s a bad thing.

        1. To culture war casualties, it’s the worst.

          Well, that and uppity Blacks, uppity women, uppity gays, uppity immigrants, uppity Muslims, uppity agnostics, uppity Hispanics . . .

      2. Conservatives hate living constitutionalism when it protects same-sex marriage and threatens capital punishment.

        They love it when it gives them the right to exempt themselves from generally applicable laws, carry guns, or protect white people from anti-racist policies.

        1. …exempt themselves from generally applicable laws…


          …carry guns…

          We don’t need “living constitutionalism” for that. The 2nd Amendment says: “the right of the people to keep and bear arms shall not be infringed.”

          …protect white people from anti-racist policies…

          Same here. The 14th Amendment says: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

          1. A commenter in another thread said essentially the same thing yesterday.

    4. While it is a popular understanding (probably because people assume it comes from religious tradition), coverture did not make wives into their husbands’ property and certainly not their fathers’. Girls can still get married at 12 in Massachusetts (a noted clinger state).

      1. But I wasn’t limiting my comment to American law; I was referring to tradition more generally, and there is precedent for women being property. The tenth commandment, which forbids covetousness, includes the wife right along with the ox, the ass, the man servant and the maid servant.

        I suspect that if a 12 year old tried to marry in Massachusetts some method would be found to prevent it, and the law stays on the books simply because nobody has gotten around to repealing it yet. The Massachusetts Constitution also contains a provision that the governor must be of the Christian religion; good luck enforcing that one too.

        1. It’s not a very good argument to say “history doesn’t matter, look at these examples to see why” and then pick examples that aren’t relevant for anybody. The historical injustice done to women in Iron Age Canaan has as much to do with constitutional law as the injustice done now in North Korea.

          1. Perhaps I should have been more clear, but my dim view of using history and tradition as our guidepost takes in far more territory than just American law. It’s true that the immediate subject for discussion is the US Constitution, and I think my argument applies to the US Constitution. But in almost any other context, I have the same dim view of history and tradition. We’d still be living naked in caves if we stuck with history and tradition.

        2. “The tenth commandment, which forbids covetousness, includes the wife right along with the ox, the ass, the man servant and the maid servant.”

          That depends on which version of the Ten Commandments you use. In some versions, “Thou shall not covet” is split into two commandments, one covering property and one covering wives.

    5. “So why are we still giving them power to decide matters of policy? ”

      They have no power to decide policy. Most every policy question is supposed to be decided by your state or local government. As for the federal constitution, it can be amended at any time.

      Of course, the Constitution is not followed and is more of a historical curiosity at this point. Albeit, one that is used as the touchstone for the cult of esotericism that shrouds our governing oligarchy of unelected robed figures.

      If the Constitution was followed and most every policy issue was decided by your local or state government, then there wouldn’t be a need for so much consternation and confusion on your part about differing political views of people in different jurisdictions who should have no say in your life, just as you should have no say in theirs, like people in Afghanistan.

      Now to actually answer your 2nd grade-level difficulty in understanding, a Constitution is supposed to have a fixed meaning until it is properly amended. That fixed meaning is quite separate from what any court happens to assert it to be.

      And the reason a Constitution is supposed to have this fixed meaning until it is properly changed by amendment, is the same reason that you can’t simply choose one day to disobey the law or to unilaterally deem it to be changed just because you desire it to be so. You have to go through the political process if you want to change the law.

      A Constitution is the law that governs the government; in no way does it govern the people, it only governs the government. And so the government should not be able to simply decide that it is going to disregard and disobey the Constitution, or unilaterally deem its meaning to be changed, without going through the correct process to amend it.

    6. Because like it or not, that generation is the one that enacted the Constitution, subject to any amendments made later by the People. Unless you want a new Constitution every 20 years (Thomas Jefferson wanted something like that), you have to go with the binding document we have.

      Your question should apply to statutes as well. Suppose I want to trade stocks. Why should I be stuck with laws enacted during the Depression to regulare the securities market? That was about 90 years ago, and everyone who voted for it is long dead. Yet until Congress changes or modifies those law, I have to follow them.

      1. But it’s far easier for Congress to modify or change laws than it is to amend the Constitution. So it’s an easier argument that if you don’t like what Congress did, change it than it is to say that if you don’t like what the Constitution says, change it.

      2. Even a new Constitution every 20 years would be adopted by formal procedures, not just some well placed people asserting that “things have changed”.

        The people complaining about us being ruled by the dead hand of the past have their own live hands in mind as the alternative.

        1. Whether those live hands are right is a case by case inquiry. You can’t just wave it away by making it sound sinister.

          1. You’ve missed the point. Suffice it to say, you would attach less significance and are encouraging less fealty to the text of our Constitution than the Federal Rules of Civil Procedure.

          2. No, what makes it sinister is that they don’t give the people a choice.

            When the Court ‘changes’ the constitution by judicial fiat, it’s not like the people vote on the change, and have a choice to reject it. It’s just foisted on them, whether or not they like it.

  15. Justice White, not Powell, was the author of the opinion of the court in Bowers v. Hardwick, and the “at best facetious” observation was his.

    Justice Powell wrote a concurring opinion in which he agreed there was no fundamental right to engage in homosexual sodomy, but suggested there might be an Eighth Amendment violation if the laws were enforced and someone got the 20 year statutory maximum for a single private consentual act. But since there was no reported case of anyone actually being tried under the Georgia statute in decades, and the state declined to present Hardwick’s case to a grand jury, and because Hardwick did not raise the issue below, there was nothing for the court to decide.

  16. MUH CONSTITUTION! Lol. Our political/legal system is a joke.

  17. This whole post (and the supreme court precedent behind it) would appear to just be wrong as a matter of first principles. It’s not the long-standing nature of the law that determines what a right is, but whether or not it is something that could be freely chosen by an individual, potentially with other consenting individuals, without requiring compulsion of unwilling parties, nor using force against them, nor fraud.

    Consensual sodomy involves no use of force, no compulsion, and no fraud. Ergo, it is a right (part of Liberty, properly construed).

    That the law might not recognize such a right is a *flaw with the law*. Rights exist before governments, and governments are instituted to protect them. Rights don’t wait to exist until governments recognize them.

    (Nonconsensual sodomy is obviously not a right).

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