At SCOTUSblog, Steven Calabresi: The “born free and equal” clauses and Lawrence v. Texas. From the introduction:
This is the third of seven introductory articles on the relevance for constitutional law of the “born free and equal” clauses, which appeared in the Declaration of Independence and in six out of 12 state constitutions when the federal Bill of Rights was ratified in 1791, and in 24 out of 37 state constitutions when the 14th Amendment was ratified in 1868. …
In my first two articles, I showed that the “born free and equal” idea is deeply rooted in American history and tradition as that phrase is used in such correctly decided cases as Washington v. Glucksberg (the right to assisted suicide is not deeply rooted in American history and tradition), McDonald v. City of Chicago (the Second Amendment’s right to own a handgun for self-protection extends to the states because it is deeply rooted in American history and tradition), and Dobbs v. Jackson Women’s Health Organization (the right to an abortion is not deeply rooted in American history and tradition).
In this third introductory article, I want to examine the application of the “born free and equal” clauses to another famous “right to privacy” case: 2003’s Lawrence v. Texas, which struck down so-called “sodomy” laws banning oral and anal sex as unconstitutional. In my last article, I explained why: 1) there is no such thing as a constitutional “right to privacy” of the kind found incorrectly in Roe v. Wade, yet 2) why the outcome in Griswold v. Connecticut, the pivotal 1965 case striking down laws banning the use of contraceptives, is nonetheless correct under the privileges or immunities clause, which applied the “born and free and equal” clauses as modified by Corfield v. Coryell (discussed below) to the states. I’ll apply this analysis to Lawrence v. Texas to explain why I think that case was rightly decided but not for the reasons given by Justice Anthony Kennedy in his opinion for the court.
And from the core of the analysis:
The first question is whether a right to commit so-called “sodomy,” either by heterosexual or gay and lesbian couples, is deeply rooted in our nation’s history and tradition; that is, whether this is part of the “born-free-and-equal” idea that everyone has the right “to enjoy life and liberty” and to “pursue and obtain happiness and safety.” While the right to commit sodomy has long been criminalized, freedom among committed adult couples to enjoy sexual relationships in every way is arguably covered by the deeply rooted rights to “enjoy liberty” and to “pursue and obtain happiness and safety.”
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Under these circumstances, one must remember Judge Robert H. Bork’s prophetic words in “The Tempting of America: The Political Seduction of the Law,” in which Bork, one of the founding fathers of modern originalism, stated that: “The world changes in which unchanging values [I would say ‘legal texts’] find their application.” This is a profound observation for an originalist. It means that originalists must not only look at the original public meaning of a text when it is adopted: they must also apply that text to a modern world which presents new technologies and changed circumstances such that the constitutional text must be translated to apply to them. Translation occurs, for example, when we apply the First Amendment’s protection of freedom of speech and of the press to expressive conduct like flag burning, or to hand-written material in a private diary, or in a private letter to a friend, or in broadcast movies, radio, television, and the internet where freedom of expression is constitutionally protected even in the absence of speech – a vocal utterance – or in the absence of a “printing” press.
In “The Tempting of America,” Bork had no trouble finding that the 14th Amendment’s overarching commitment to racial equality, relied upon in Brown v. Board of Education, trumped the original expected application of many of the 14th Amendment’s framers who mistakenly said in congressional debates, in 1868, that racial equality was somehow consistent with segregated public schools and anti-miscegenation laws. This was clearly not true by 1954, as to public schools, and by 1967, as to anti-miscegenation laws.The Supreme Court was therefore right to hold that public school segregation and anti-miscegenation laws are unconstitutional in the modern world even though many of the members of Congress who voted for the 14th Amendment said otherwise.
Exactly the same thing holds true with respect to sodomy laws in 2003. In 1868, the framers of the 14th Amendment, when they wrote Corfield v. Coryell’s version of the “born free and equal” right (subject to a rational basis test) into the privileges or immunities clause of the 14th Amendment, mistakenly thought that sodomy laws were somehow consistent with the “born-free-and-equal” idea. As late as 1986’s Bowers v. Hardwick, a 5-4 majority of the Supreme Court agreed.
But by 2003, with only 13 states having sodomy laws on the books, which they almost never enforced, and decades after the birth control pill was legalized on May 9, 1960, which helped launch a sexual revolution, the rise of the modern feminist movement, and the gay rights movement, it became as difficult to square sodomy laws with the “born-free-and-equal” command of the privileges or immunities clause as it was to square segregated public schools and laws banning inter-racial marriage with the “no race discrimination” command of the 14th Amendment.
Posted at 6:04 AM