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The Crooked Timber of Liberal Democracy
Abstract
In Restoring the Lost Constitution, Randy Barnett contends that legislative enactments and the judicial decisions that interpret and enforce them can be legitimately imposed on a dissenting minority if, but only if, they are necessary to protect the antecedent rights of citizens without improperly restricting the rights of those whose liberty is being restricted thereby. On this view, the requirements of necessity and propriety give rise to a "presumption of liberty," which yields a strongly libertarian conception of constitutional rights pursuant to which any restriction on individual liberty would effectively be subjected to a test of strict scrutiny. He then attempts to wed this theory of legitimacy to originalism by claiming that his conception of natural liberty rights is consistent with the "objective" meaning of the Constitution as it would have been publicly understood at the time of its enactment. Against this view, I argue that Barnett's theory is flawed because, protestations to the contrary notwithstanding, it depends upon a highly contentious theory of justice and therefore fails the test of liberal neutrality. I also argue that Barnett's version of "original meaning originalism" is ultimately no more persuasive than other versions of originalism, since no amount of historical evidence can displace the normative dimension of the interpretive enterprise, particularly as it relates to the substantive content of constitutional rights.
In a trio of significant opinions issued on August 22, California's highest court reaf- firmed its earlier holding that a child can have two mothers and then applied that holding af- firmatively to diverse parentage disputes aris- ing from the break-up of lesbian partnerships. In all three cases, K.M. v. E.G., 2005 WL 2000860, Elisa B. v. Superior Court, 2005 WL 2000864, and Kristine H. v. Lisa R., 2005 WL 2000908, the six members of the court agreed unanimously that a child can have two legal mothers, but in the most complicated of the cases the court was divided on the outcome, producing two dissenting opinions in a 4-2 vote, because of differences over the applica- tion of precedents and the facts of the particular case. (There were gay organizational briefs on both sides in this case, K.M..) The court is short one member due to the re- E.G. claims that she agreed to this with the understanding that she wanted to be a single mother and that although the women would be raising the resulting child or children jointly in their home, only she would be listed on the birth certificate or considered the child's mother, even though the child would be geneti- cally related to K.M. E.G. made K.M. promise not to reveal to anyone that the child E.G. would have was conceived using K.M.'s ova. K.M., on the other hand, claimed that she had only agreed to donate her ova because of her understanding that the women as a couple would raise the child together. She denied that E.G. had insisted that she be considered a sin- gle parent or the sole parent of the resulting child or children. The women also differed about how K.M. came to sign certain documents purporting to waive her parental rights, E.G. claiming the documents were received well in advance of the ova donation procedure and were thoroughly discussed by the women, while K.M. said she confronted the documents for the first time just minutes before the procedure and barely had a chance to read and sign them before the proce- dure began.
Debates over “originalism” have been a central focus of contemporary constitutional theory for three decades. One of the features of this debate has been disagreement about what “originalism” is. More worrisome is the possibility that the arguments between contemporary originalists and their opponents, the “living constitutionalists,” are confused – with each side of the debate making erroneous assumptions about the content of their opponent’s theories. The aim of this chapter is to clarify these debates by providing a history of contemporary originalism and then developing an account of the core or focal content of originalist theory. The history reveals that contemporary originalist theory has evolved – the mainstream of originalist theory began with an emphasis on the original intentions of the framers but has gradually moved to the view that the “original meaning” of the constitution is the “original public meaning” of the text. Even today, originalists disagree among themselves about a variety of important questions, including the normative justification for a constitutional practice that adheres to original meaning. Despite evolution and continued disagreement, however, contemporary originalist theory has a core of agreement on two propositions. First, almost all originalists agree that the linguistic meaning of each constitutional provision was fixed at the time that provision was adopted. Second, originalists agree that our constitutional practice both is (albeit imperfectly) and should be committed to the principle that the original meaning of the Constitution constrains judicial practice. The question whether living constitutionalists actually disagree with these core principles of originalist theory is a complex one – to which we shall return at the end of this chapter.
Lawrence v. Texas produces a desirable policy result, but it deserves condemnation as a legal decision. It repudiates the Supreme Court's most recent attempt to put doctrinal restraints on the most anticonstitutional doctrine in constitutional law - substantive due process. That doctrine, for which the Court has never provided a successful textual justification, has been selectively employed over the decades to advance a variety of political agendas popular with Supreme Court majorities. In 1938, Carolene Products put meaningful restraints on substantive due process, taming that doctrine for about a quarter of a century. With Griswold and Roe v. Wade, the Court adopted a new substantive due process agenda - sexual freedom. In Washington v. Glucksberg, the Court sought to restore most of the limits of the Carolene Products approach, while leaving the Griswold-Roe line in place, by adopting a test requiring that newly recognized rights be deeply rooted in the nation's history and tradition. Lawrence repudiates the Glucksberg approach and instead deploys an undisciplined form of judicial mysticism. Notwithstanding the availability of plausible arguments based on precedent to invalidate the Texas law, the Lawrence Court chose instead to rely on a series of utterly untenable arguments and analytically empty bombast. We argue that the Lawrence approach is not law in any meaningful sense of the term, but only a vehicle for judges to impose their own political preferences on the nation. We also rebut some justifications that could be offered in defense of Lawrence. We show that Professor Robert Post's concept of a conversation between the Court and the nation obliterates the concept of law as something distinct from politics, and offers a theory of judicial review that would justify even a decision like Plessy v. Ferguson. Second, we show that Professor Randy Barnett fails in his effort to provide Lawrence with a foundation in the Constitution because he misinterprets the Ninth Amendment and the Privileges or Immunities Clause. Third, we rebut those who would defend Lawrence on pragmatic grounds by explaining why we think competitive federalism is a far superior mechanism for creating new norms of liberty, and for correcting the mistakes that are inevitable in any process of policy development. Finally, we outline the case for repudiating the Griswold-Roe-Lawrence line of cases and for using the Glucksberg test to return the Court's substantive due process jurisprudence roughly to where it stood as a result of Carolene Products.
Idea for a Universal History with a Cosmopolitan Purpose, in KANT'S POLITICAL WRITINGS, supra note 48, at 45-47; see also Isaiah Berlin, The Pursuit of the Ideal
- Immanuel Kant
Immanuel Kant, Idea for a Universal History with a Cosmopolitan Purpose, in
KANT'S POLITICAL WRITINGS, supra note 48, at 45-47; see also Isaiah Berlin, The Pursuit of
the Ideal, in THE CROOKED TIMBER OF HUMANITY 18-19 (Henry Hardy ed., 1991).