Sodomy and guns: Tradition as democratic deliberation and constitutional interpretation

Harvard Journal of Law and Public Policy

Volumn 32, Issue 1, 2009, Pages 193-218

  Eskridge Jr , William N ^a  

^a YALE UNIVERSITY   (United States)

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EID: 63849308790     PISSN: 01934872     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (128)

1. See, e.g., ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 143-45, 154-55 (1990).
2. Some early sources include Meyer v. Nebraska, 262 U.S. 390 (1923), and THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION (Victor H. Lane ed., Little, Brown 1903) (1868).
3. See Paul Brest, The Misconceived Quest for the Original Understanding, 60 B.U. L. REV. 204, 214-21, 229-31 (1980);
4. Laurence H. Tribe & Michael C. Dorf, Levels of Generality in the Definition of Rights, 57 U. CHI. L. REV. 1057, 1073-75, 1087-93 (1990);
5. Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, 96 HARV. L. REV. 781, 793-804 (1983).
6. 478 US. 186 (1986).
7. Id. at 197 (Burger, C.J., concurring) (quoting 4 WILLIAM BLACKSTONE, COMMENTARIES *215).
8. Id. at 192-94 (majority opinion).
9. Id. at 196 (affirming as a rational basis for the state law "the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable"). It should be noted that Georgia never had a sodomy law that focused on "homosexual conduct."
10. Id. at 194-95; accord Washington v. Glucksberg, 521 U.S. 702 (1997) (upholding assisted suicide ban upon a similar tradition-based theory).
11. Justice White's account is hardly idiosyncratic to that Justice, for it draws heavily from the Brief of Petitioner at 21-26, Bowers, 478 U.S. 186 (No. 85-140), and from Judge Bork's opinion in Dronenburg v. Zech, 741 F.2d 1388, 1396 (D.C. Cir. 1984) (refusing "to protect from regulation a form of behavior never before protected, and indeed traditionally condemned").
12. Martin S. Flaherty, History Right?: Historical Scholarship, Original Understanding, and Treaties as "Supreme Law of the Land," 99 COLUM. L. REV. 2095, 2098 (1999).
13. See, e.g., Martin S. Flaherty, History "Lite" in Modern American Constitutionalism, 95 COLUM. L. REV. 523 (1995).
14. See Lawrence v. Texas, 539 U.S. 558, 568 (2003).
15. For a survey of state sodomy laws, see WILLIAM N. ESKRIDGE, JR., DISHONORABLE PASSIONS: SODOMY LAWS IN AMERICA, 1861-2003, at 387-407 (2008). The first state law limited to same-sex (homosexual) activities was 1969 Kan. Laws ch. 180, § 21-3505.
16. William N. Eskridge, Jr., Hardwick and Historiography, 1999 U. ILL. L. REV. 631, 655-56, 667 (collecting references to treatises and English case law as to the ambit of sodomy and crime against nature laws);
17. see also ESKRIDGE, supra note 13, at 387-407 (appendix identifying when each state expanded its sodomy law to include oral sex).
18. See R v. Jacobs, (1817) 168 Eng. Rep. 830 (K.B.);
19. R v. Wiseman, (1716) 92 Eng. Rep. 774, 774-75 (K.B.);
20. see also EDWARD COKE, THE THIRD PART OF THE INSTITUTES OF THE LAWS OF ENGLAND: CONCERNING HIGH TREASON, AND OTHER PLEAS OF THE CROWN, AND CRIMINAL CAUSES 59 (London, E. & R. Brooke 1797) (1644).
21. See ESKRIDGE, supra note 13, at 16-23.
22. See id. at 49-59, 85-99.
23. See id. at 76-84.
24. The Leventhal quip was made in connection with the use of legislative history. See ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 36 (1997).
25. See Bowers v. Hardwick, 478 U.S. 186, 191-95 (1986).
26. See id. at 199-200 (Blackmun, J., dissenting).
27. Id. at 204-08.
28. Id. at 192-94 (majority opinion).
29. Brief of the Cato Institute as Amicus Curiae in Support of Petitioners, Lawrence v. Texas, 539 U.S. 558 (2003) (No. 02-102) (with appendix listing all reported nineteenth-century American sodomy decisions);
30. see also WILLIAM N. ESKRIDGE, JR., GAYLAW: CHALLENGING THE APARTHEID OF THE CLOSET 156-66, 374-75 (1999).
31. Thus, one might examine municipal records describing the exact circumstances for every sodomy arrest in some major cities, to see if sodomy laws were ever applied to private relations between consenting adults. Cf. William E. Nelson, Government by Judiciary: The Growth of Judicial Power in Colonial Pennsylvania, 59 SMU L. REV. 3, 44 (2006) (finding no convictions for "sodomy" in colonial Pennsylvania's courthouse records).
32. Lawrence, 539 U.S. at 567-72 (Kennedy, J., for the Court) (relying on Eskridge, Hardwick and Historiography, supra note 14, at 656, and the Cato Amicus Brief, supra note 24, at 16-17, and replicating chunks of the amicus brief's analysis); id. at 597-98 (Scalia, J., dissenting) (relying on ESKRIDGE, supra note 24, at 159, 375).
33. See id. at 567-68, 571-72 (majority opinion).
34. See id. at 596-98 (Scalia, J., dissenting).
35. For a biting attack on the privacy right, see Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 983-84 (1992) (Scalia, J., concurring in the judgment in part and dissenting in part).
36. 379 U.S. 184 (1964).
37. See Herbert Hovenkamp, Social Science and Segregation Before Brown, 1985 DUKE L.J. 624, 656-57;
38. see also Alfred Avins, Anti-Miscegenation Laws and the Fourteenth Amendment: The Original Intent, 52 VA. L. REV. 1224 (1966).
39. 32.106 U.S. 583 (1883).
40. McLaughlin, 379 U.S. at 188-90 (discussing Pace and dismissing it as "represent[ing] a limited view of the Equal Protection Clause which has not withstood analysis in the subsequent decisions of this Court").
41. Two Justices went further than Justice White in disapproving race-based classifications. Id. at 198 (Stewart, J., joined by Douglas, J., concurring in the judgment).
42. Plessy v. Ferguson, 163 U.S., 537, 560 (1896) (Harlan, J., dissenting).
43. 36.128 S. Ct. 2783 (2008).
44. U.S. CONST. amend. II (emphasis added).
45. 128 S. Ct. at 2821-22.
46. Brief for Professors of Linguistics and English Dennis E. Baron, Ph.D., et al. in Support of Petitioners at 18-28, Heller, 128 S. Ct. 2783 (No. 07-290);
47. Saul Cornell, The Original Meaning of Original Understanding: A Neo-Blackstonian Critique, 67 MD. L. REV. 150, 163-64 (2007) (survey of 115 late-eighteenth-century texts using term "bear arms");
48. David Yassky, The Second Amendment: Structure, History, and Constitutional Change, 99 MICH. L. REV. 588, 618 (2000) (same result for Library of Congress database, 1774-1821). Justice Scalia responded that "keep and bear arms" has a broader meaning than "bear arms." Heller, 128 S. Ct. at 2792-94. But see id. at 2827-31 (Stevens, J., dissenting) (responding to Justice Scalia).
49. 307 U.S. 174 (1939).
50. Id. at 178.
51. Heller, 128 S. Ct. at 2788-802 (Scalia, J., for the Court) (original meaning of Second Amendment's text); id. at 2797-99 (tradition-based evidence confirming and deepening linguistic evidence of original meaning).
52. 43.1689, 1 W. & M. sess. 2, c. 2.
53. Heller, 128 S. Ct. at 2797-99; see also Brief of Amicus Curiae Academics for the Second Amendment in Support of the Respondent [Ratification and Original Public Meaning] at 14-17, Heller, 128 S. Ct. 2783 (No. 07-290) (developing this point in greater detail).
54. Heller, 128 S. Ct. at 2799. For many other examples, see Respondent's Brief at 9-14, Heller, 128 S. Ct. 2783 (No. 07-290);
55. Brief of the Cato Institute and History Professor Joyce Lee Malcolm as Amici Curiae in Support of Respondent [The Right Inherited from England] at 12-16, Heller, 128 S. Ct. 2783 (No. 07-290).
56. See Heller, 128 S. Ct. at 2827-31 (Stevens, J., dissenting) (original linguistic meaning of "keep and bear arms");
57. id. at 2831-36 (drafting, debating, and ratification history of the Second Amendment).
58. Id. at 2803 (majority opinion).
59. Id. at 2805-12.
60. Id. at 2805.
61. See id. at 2809-11 (discussing Second Amendment rights of freed slaves in the 1860s, which were "instructive").
62. See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 678-88 (1981) (taking expansive view of Presidential power to suspend lawsuits against foreign states, based on executive practice to which Congress never objected).
63. See generally BLACK'S LAW DICTIONARY 378 (8th ed. 2004) (defining "course of performance").
64. See generally id. at 59 (defining "adverse possession").
65. Heller, 128 S. Ct. at 2793-94 (citing Muscarello v. United States, 524 U.S. 125, 143 (1998) (Ginsburg, J., dissenting)). Justice Scalia was being playful, tweaking Justice Ginsburg for taking a narrower view of "bear arms" in Heller than she did in the earlier case. Very clever, but it is still an anachronism.
66. This is what a recent empirical analysis found when it examined the Justices' deployment of sources from the Founding era in constitutional federalism cases. Peter J. Smith, Sources of Federalism: An Empirical Analysis of the Court's Quest for Original Meaning, 52 UCLA L. REV. 217, 282-83 (2004).
67. THOMAS BENDER, TOWARD AN URBAN VISION: IDEAS AND INSTITUTIONS IN NINETEENTH CENTURY AMERICA 3 (1975) (data as of 1800).
68. See, e.g., Saul Cornell, "Don't Know Much About History": The Current Crisis in Second Amendment Scholarship, 29 N. KY. L. REV. 657, 675 (2002). Justice Scalia's majority opinion also contains smaller anachronisms that undermine his argument on its own terms. Observing that nine states adopted constitutional protections for the right to keep and bear arms between 1789 and 1820, he says this evidence confirms a broad original meaning for the Second Amendment: to protect guns for self-defense as well as militia use. Heller, 128 S. Ct at 2803. But seven of the nine state constitutional provisions assured the right to "bear arms in defence of themselves [or himself] and the State," broader language than the Second Amendment's text Id. If the Second Amendment were as broad as Justice Scalia says it is, why did these post-1791 state constitutions not just copy the Second Amendment? Possibly, the states in question wanted a broader protection than the militia-dependent protection of the Second Amendment. As a matter of textual plain meaning, one would expect the Second Amendment to be construed more narrowly than these broader provisions.
69. See Heller, 128 S. Ct. at 2842-46 (Stevens, J., dissenting).
70. Act of Feb. 8, 1927, ch. 75, 44 Stat. 1059.
71. National Firearms Act of 1934, ch. 757, 48 Stat. 1236 (codified as amended at 26 U.S.C. § 5861 (2000)).
72. Amici Curiae Brief of District Attorneys in Support of Petitioners at 7-9, Heller, 128 S. Ct. 2783 (No. 07-290) (discussing firearms-regulating ordinances and statutes in the United States).
73. See Heller, 128 S. Ct at 2792-99.
74. Id. at 2797.
75. 1689, 1 W. & M. sess. 2, c. 2.
76. PA. CONST. of 1776, ch. I, § XIII.
77. See Heller, 128 S. Ct. at 2835 (Stevens, J., dissenting).
78. See id. at 2845-46.
79. See id. at 2822 (majority opinion).
80. 367 U.S. 497 (1961).
81. Id. at 542 (Harlan, J., dissenting);
82. see also Washington v. Glucksberg, 521 U.S. 702, 765 (1997) (Souter, J., concurring in the judgment) (quoting Justice Harlan).
83. See Ernest Young, Rediscovering Conservatism: Burkean Political Theory and Constitutional Interpretation, 72 N.C. L. REV. 619 (1994).
84. See, e.g., ESKRIDGE, supra note 13, at 194-228 (discussing the new "politics of preservation" responding to the freedom of choice and gay-rights social movements);
85. Randy E. Barnett, Foreword: Guns, Militias, and Oklahoma City, 62 TENN. L. REV. 443 (1995) (discussing the rise of citizen militias and a new politics of guns responding to ever-expanding governmental regulation).
86. Compare Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 53-54 (1959) (rejecting claim that state literacy tests unconstitutionally burden black people's right to vote), with South Carolina v. Katzenbach, 383 U.S. 301, 334, 337 (1966) (upholding Congress's authority to enforce the Fifteenth Amendment through suspension of literacy tests in the South).
87. This is the argument of WILLIAM N. ESKRIDGE, JR. & JOHN FEREJOHN, A REPUBLIC OF STATUTES (forthcoming 2009).
88. ESKRIDGE, supra note 13, at 50-55.
89. Id. at 73-108 (the anti-homosexual "Kulturkampf," or campaign of discipline and erasure);
90. John D'Emilio, The Homosexual Menace: The Politics of Sexuality in Cold War America, in PASSION & POWER: SEXUALITY IN HISTORY 227 (Kathy Peiss & Christina Simmons eds., 1989). See generally DAVID K. JOHNSON, THE LAVENDER SCARE: THE COLD WAR PERSECUTION OF GAYS AND LESBIANS IN THE FEDERAL GOVERNMENT (2004).
91. ESKRIDGE, supra note 13, at 118-27 (during Illinois's sodomy repeal, homosexuality was almost completely in the closet);
92. id. at 144-47 (sodomy reform in the 1960s failed when legislators detected the pro-homosexual effect);
93. id. at 176-84 (substantial progress in repeal of consensual sodomy laws, in large part because the repeal was enveloped in adoption of the Model Penal Code).
94. See id. at 197-201 (California repeal);
95. id. at 182-84, 388-89 (Idaho and Arkansas reenact consensual sodomy laws after "mistaken" repeals were exposed).
96. Id. at 213-18.
97. Arkansas, Kansas, Maryland, Missouri, Montana, Nevada, Oklahoma, Tennessee, and Texas. See id. at 387-407 (appendix of state sodomy laws).
98. The most dramatic movement in opinion polls came between 1990 and 1995. See Patrick J. Egan et al., Gay Rights, in PUBLIC OPINION AND CONSTITUTIONAL CONTROVERSY 234, 236-37 (Nathaniel Persily et al. eds., 2008) (surveying public opinion polls);
99. see also ESKRIDGE, supra note 13, at 267-68 (similar).
100. See ESKRIDGE, supra note 13, at 269-78.
101. See id. at 269-74, 289-98 (state-by-state analysis of sodomy law repeal, 1992 to 2000);
102. see also id. at 387-407 (appendix).
103. See generally Brief for Amici Curiae 55 Members of the United States Senate, the President of the United States Senate, and 250 Members of United States House of Representatives in Support of Respondent, District of Columbia v. Heller, 128 S. Ct. 2783 (2008) (No. 07-290) (authored by Stephen P. Halbrook);
104. Stephen P. Halbrook, Congress Interprets the Second Amendment: Declarations by a Co-Equal Branch on the Individual Right to Keep and Bear Arms, 62 TENN. L. REV. 597 (1995) [hereinafter Halbrook, Congress Interprets the Second Amendment].
105. Act of July 13,1892, ch. 159, 27 Stat. 116.
106. Act of Mar. 3, 1901, ch. 854, § 855, 31 Stat. 1328.
107. 23 CONG. REC. 5788 (1892) (statement of Senator Mills, objecting to the proposed bill);
108. id. at 5789 (statement of Senator Wolcott, defending the bill as consistent with "the constitutional right of any citizen who desires to obey the law").
109. Act of June 30, 1906, ch. 3932, § 4, Pub. L. No. 59-401, 34 Stat. 808, 809 (codified as amended at D.C. CODE § 1-303.43 (2001)).
110. Act of July 8, 1932, ch. 465, Pub. L. No. 72-275, 47 Stat. 650.
111. Id. § 3, 47 Stat, at 651.
112. Id. § 4, 47 Stat, at 651. A license could be granted to anyone showing "good reason to fear injury to his person or property." Id. § 6. The committee reports briefly noted that "[t]he right of an individual to possess a pistol in his home, or on land belonging to him, is not dist[ur]bed by the bill." S. REP. NO. 72-575, at 3 (1932); accord H.R. REP. No. 72-767, at 2 (1932).
113. Act of July 8, 1932, ch. 465, § 14, 47 Stat, at 654.
114. Congressional amendments include Act of Nov. 4, 1943, ch. 296, Pub. L. No. 78-182, 57 Stat. 586, and Act of June 29, 1953, ch. 159, Pub L. No. 83-85, 67 Stat. 90, 93-94.
115. Act of Feb. 8, 1927, ch. 75, Pub. L. No. 69-583, 44 Stat. 1059.
116. National Firearms Act of 1934, ch. 757, Pub. L. No. 73-474, 48 Stat. 1236 (codified as amended at 26 U.S.C. § 5861 (2000)).
117. 307 U.S. 174 (1939).
118. Act of Oct. 16, 1941, ch. 445, Pub. L. No. 77-274, 55 Stat. 742.
119. Id. § 1, 55 Stat, at 742.
120. See Halbrook, Congress Interprets the Second Amendment, supra note 84, at 623-31 (collecting quotations from various legislators).
121. 87 CONG. REC 6778 (1941).
122. Pub. L. No. 90-618, 82 Stat. 1213 (1968) (codified at 18 U.S.C. § 921 note).
123. Id. § 101, 82 Stat. at 1213-14.
124. Pub. L. No. 99-308, 100 Stat. 449 (1986).
125. Id. § 1(b)(1)(A), 100 Stat, at 449;
126. see also id. § 107, 100 Stat, at 460 (codified at 18 U.S.C. § 926A) (preempting state laws barring interstate travel with lawful firearms).
127. Act of June 30, 1906, ch. 3932, § 4, Pub. L. No. 59401, 34 Stat. 808, 809 (codified as amended at D.C. CODE § 1-303.43 (2001)).
128. The Supreme Court has authority to construe both congressional statutes relating to the District and the District's own statutes.