Northwestern University School of Law
Public Law and Legal Theory Papers
Year Paper
Lawrence v. Texas and Judicial Hubris
Nelson Robert Lund
∗
John O. McGinnis
†
∗
George Mason University School of Law
†
Northwestern University School of Law, j-mcginnis@law.northwestern.edu
This working paper is hosted by The Berkeley Electronic Press (bepress) and may not be commer-
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Copyright
c
2004 by the authors.
Lawrence v. Texas and Judicial Hubris
Nelson Robert Lund and John O. McGinnis
Abstract
Lawrence v. Texas produces a desirable policy result, but it deserves condem-
nation 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 pro-
vided 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 - sex-
ual 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 ar-
guments 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 justi-
fications 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 oblit-
erates 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. Sec-
ond, we show that Professor Randy Barnett fails in his effort to provide Lawrence
with a foundation in the Constitution because he misinterprets the Ninth Amend-
ment 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 pro-
cess jurisprudence roughly to where it stood as a result of Carolene Products.
†
Patrick Henry Professor of Constitutional Law and the Second Amendment,
George Mason University School of Law; B.A. 1974, St. John’s College, Annapolis; Ph.D.
1981, Harvard; J.D. 1985, University of Chicago.–Ed. Financial support from George Mason’s
Law and Economics Center is gratefully acknowledged.
††
Professor of Law, Northwestern University School of Law. B.A. 1978, Harvard;
M.A. 1980, Balliol College, Oxford; J.D. 1983, Harvard.–ed.
Both authors are grateful to Robert Bennett, David Bernstein, St even Calabresi,
Robert Delahunty, Neal Devins, John Duffy, Stephen G. Gilles, Craig Lerner, Mark
Movsesian, Richard A. Posner, Saikrishna Prakash, Stephen B. Presser, and Martin Redish
for helpful comments.
1
Shakespeare, Julius Caesar, Act II, Scene 2.
2
123 S. Ct. 2472 (2003).
1
Lawrence v. Texas and Judicial Hubris
Nelson Lund
†
and John O. McGinnis
††
‘Alas, My Lord,
Your Wisdom is Consumed in Confidence!’
1
The republic will no doubt survive the Supreme Court’s decision, in
Lawrence v. Texas,
2
to invalidate laws against private, consensual sodomy,
including those limited to homosexual behavior. Such laws are almost never
enforced, and the rare prosecutions for such acts are necessarily capricious. So
the direct effect of the Court’s decision is likely to be extremely limited, and largely
salutary: a few individuals will be spared the bad luck of getting a criminal
conviction for violating laws that are manifestly out of step with prevailing sexual
mores.
Nor are we likely to see anything like the intense political opposition
Hosted by The Berkeley Electronic Press
3
The Court has tolerated some forms of opposition to abortion. See, e.g., Harris v.
McRae, 448 U.S. 297 (1980) (upholding statute that withheld federal funding for abortions).
Recently, however, the Court has exhibited a certain impatience toward abortion opponents.
See, e.g., Hill v. Colorado, 530 U.S. 703 (2000) (upholding statute restricting peaceful efforts
by anti-abortion activists to persuade pregnant women not to have abortions); id. at 765
(Kennedy, J., dissenting) (“The Court’s holding contradicts more than a half century of well-
established First Amendment principles.”).
2
generated by this decision’s most important doctrinal ancestor, Roe v. Wade.
Millions of Americans regard Roe as a judicial authorization for mass murder, and
understandably continue to oppose the Court’s approach to abortion.
3
One can
hardly foresee a similar passion for overturning a judicial decision that merely
eliminates a few haphazard prosecutions for private conduct that has no immediate
effect on any third parties. Judging at least by what we see in the general press and
popular entertainment media, most of the public can be counted on to respond to
the immediate consequences of Lawrence with a yawn. If the Court was looking
for a case in which to flex its political muscles with impunity, it could hardly have
found a better candidate.
This does not mean that Lawrence is unimportant. Among the journalists
and academics who will largely determine the historical reputations of individual
Justices, this case will be enthusiastically celebrated, and not principally for its
small direct effects. Rather, we expect to see powerful efforts to ensure that
Lawrence paves the way for a broader attack on traditional marriage laws and
perhaps many other legal expressions of traditional morality.
We cannot join the celebration. Lawrence is a paragon of the most
anticonstitutional branch of constitutional law: substantive due process. The
decision also reflects a breakdown of the Court’s most recent attempt to put
doctrinal restraints on that intoxicating doctrine. It is a commonplace
observation—often repeated by members of the Court itself—that substantive due
process makes judges into unelected and unremovable superlegislators. History
has recorded several efforts to tame the doctrine in ways designed to give it a
more law-like nature, and thereby to protect the properly judicial function of the
Court from its all-too-human members. In Lawrence, the latest effort fell apart.
The Lawrence opinion is a tissue of sophistries embroidered with a bit of
sophomoric philosophizing. It is a serious matter when the Supreme Court
descends to the level of analysis displayed in this opinion, especially in a high-
visibility case that all but promises future adventurism unconstrained by anything
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