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Showing papers by "Nelson Lund published in 2004"


Posted Content
TL;DR: Lawrence v. Texas as discussed by the authors repudiates the Supreme Court's most recent attempt to put doctrinal restraints on the most anticonstitutional doctrine in constitutional law - substantive due process.
Abstract: 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.

7 citations


Journal ArticleDOI
TL;DR: The history of substantive due process can be traced back to 1556 A. as mentioned in this paper, where the Impertinent origins of Substantive Due Process were discussed. And the Court's Ascent into more transcendent dimensions 1575 B. Transcending Prior Doctrine 1578 C. Transcendent America 1580 D Exploring More TranscendENT Dimensions 1582 III. Lawrence as Textual Interpretation 1590 IV. The COSTS and BENEFITS of LAWRENCE 1597 V. GLUCKSBERG REDUX and the ELIMINATION
Abstract: INTRODUCTION 1556 I. A BRIEF HISTORY OF SUBSTANTIVE DUE PROCESS 1557 A. The Impertinent Origins of Substantive Due Process...... 1558 B. Substantive Due Process Returns to Respectability 1561 C. Prom etheus Bound? 1565 D Prometheus Unbound 1568 E. Prometheus Rebound? 1571 II. THE LAWRENCE OPINION 1573 A. The Court's Ascent into More Transcendent Dimensions 1575 B. Transcending Prior Doctrine 1578 C. Transcending America 1580 D Exploring More Transcendent Dimensions 1582 III. CAN LAWRENCE BE DEFENDED? 1586 A. Lawrence as Sophisticated Law 1586 B. Lawrence as Textual Interpretation 1590 IV. THE COSTS AND BENEFITS OF LAWRENCE 1597 V. GLUCKSBERG REDUX AND THE ELIMINATION OF THE GRISWOLD-ROE-LAWRENCE LINE 1607

3 citations


Posted Content
TL;DR: In this paper, the authors focus on cases involving laws meant to limit or forbid discrimination on the basis of relatively fixed characteristics like race, sex, and disability, and find a fairly consistent pattern of decisions since 1986, when William H. Rehnquist became Chief Justice.
Abstract: This contribution to Northwestern Law School's symposium on the Rehnquist Court focuses on cases involving laws meant to limit or forbid discrimination on the basis of relatively fixed characteristics like race, sex, and disability. Within this field, I find a fairly consistent pattern of decisions since 1986, when William H. Rehnquist became Chief Justice, and I also see a fairly obvious explanation. Throughout this period, Justice Sandra Day O'Connor has frequently been the swing voter in the most important cases. She has consistently sought to move the law toward what she sees as a practical balance among competing goals reflected in the enactments the Court is called on to interpret, and her particular pragmatic vision has largely dominated the Court's decisions throughout this period. A large number of antidiscrimination laws (both statutes and constitutional provisions) have been enacted, and these laws have generated a very large number of interpretive judicial decisions. Space constraints in this symposium preclude anything like a comprehensive survey. Accordingly, I limit myself to three lines of case law, which I believe are representative of the Rehnquist Court's approach to antidiscrimination law, and which illuminate Justice O'Connor's preeminent role in fashioning that approach. Part I looks at the Court's decisions interpreting the Americans with Disabilities Act (ADA). Enacted in 1990, this is a mature statute in the sense that Congress and the contending interest groups that took an interest in its drafting had access to a great deal of information about how similar statutes had operated and been interpreted in the past. One should therefore expect the ADA to contain relatively few examples of language with inadvertent implications: to the extent that this statute contains language that is vague or ambiguous, or startling in its apparent effects, it is reasonable to presume that this was deliberately done or the result of deliberate compromises. The ADA was also a new statute, which means that the Rehnquist Court has been unconstrained by prior interpretive decisions that might have come out differently if this Court were considering them as an original matter. Together, these two features of the ADA suggest that we will get to see the Rehnquist Court operating in a relatively pure interpretive mode. Part II examines cases dealing with the related issues of disparate impact doctrine and affirmative action under Title VII of the Civil Rights Act of 1964. These cases illustrate the Rehnquist Court's approach to managing tensions between interpretive fidelity and the precedential effect of highly questionable decisions inherited from the Burger Court. Part III considers the application of equal protection doctrine to affirmative action programs. Here, in contrast to what we will see in the ADA and Title VII cases, the Rehnquist Court for a long time followed a tentative and wavering course. Last year, however, saw a bold and decisive ruling in Grutter v. Bollinger. With that decision, the nature of the Rehnquist Court's pragmatic approach to civil rights stands fully revealed.

1 citations