As any student of constitutional law, I try to understand what's REALLY going on in terms of developments in the law, the Court's role historically and now, and I read various explanatory attempts. I understand there are differing views as to what the Court SHOULD do as opposed to what it sometimes does. Often what the Court does is maddening according to point of view on a matter, but it still needs to be understood and discussed in order to try to make sense of role and institution, as well as opinion.
Like it or not, the Court decides cases according to its best lights in the midst of what seems fairly to be called 'cultural wars.' Slavery was a cultural war of the first magnitude, as were Jim Crow, laissez-faire and nationalism. Broadly speaking, just about any subject area can be viewed as being within someone's idea of what passes for culturally correct, and I don't see how that could, or should, be avoided. Assuming that is essentially correct, it's our job as students and teachers of conlaw to try to see, understand, and explain to students the big picture, i.e. the cultural conflict, as well as the narrow holding. I noticed yesterday's obituary of Lester Maddox the owner of the Pickrick Restaurant in Atlanta who later became governor of Georgia as the result of the notoriety gained from his segregationist stance. He sold pickaxes used to threaten blacks to prevent their patronizing his restaurant. Of conlaw significance is the fact that, according to the obit, he did this in reaction to the passage of the Civil Rights Act of 1964, which caused a backlash. I've saved the clipping for class purposes in order to illustrate the context in which Katzenbach v. McClung, the Ollie's BBQ case, arose. Another notable death yesterday was that of Strom Thurmond. Both Maddox and Thurmond were the arch-segregationists of their day, the very symbols of anti-integration. Yet both, no doubt with an eye on the counting of black votes, modified their stances. I wouldn't have imagined they would be able to do that. That is very interesting to this student of constitutional law, the idea that people can change deeply held views if they realize it's in their interest to do so. Presumably the Court, which apparently views the world over which it has some jurisdiction in 25-year sound-bites, is aware of this. When you're in a cultural war and the Supreme Court vote goes against you, what are your choices? You either give up or keep on fighting. In Roe, the fight continues. I doubt the Court anticipated the depth of that cultural war. In Lawrence, the cultural conservatives will fight until the issue is no longer good for raising money, I suspect, which may be a long time. Robert Sheridan [EMAIL PROTECTED] > [Original Message] > From: Scaperlanda, Michael A <[EMAIL PROTECTED]> > To: <[EMAIL PROTECTED]> > Date: 6/27/2003 9:56:23 AM > Subject: Re: CULTURAL WARS > > Robert Sheridan writes: "Constitutional law, dealing as it does with > constitutional attitudes, is legitimately fought out in court, and in THE > Court, as Lawrence shows." > > But, isn't the relevant question "what is Constitutional 'Law.'" Scalia's > point here (I think) is that the Court is NOT doing Constitutional "law" at > all because the Constitution is silent on the issue, leaving this question > to the people. In other words, in the name of "law" to be decided in the > judicial forum, the court is usurping the authority of the people to resolve > an issue, which ought (under "law") to be fought out in the political arena. > It's the same argument that John Hart Ely made about Roe back in 1973. And > although my colleague, Rick Tepker, likes the Lawrence result, he seems to > be suggesting that the Court's analysis in Lawrence is a poor excuse for > Consititutional "law." > > > Sincerely, > Michael > > > -----Original Message----- > From: Robert Sheridan > To: [EMAIL PROTECTED] > Sent: 6/27/2003 12:31 PM > Subject: Re: CULTURAL WARS > > One of the themes of Lawrence, specifically mentioned by Justice Scalia > in his dissent, is that of the alleged 'cultural war(s).' Scalia argues > that gays are free to try to persuade others that their points of view > are correct and should prevail in law through the democratic process, > i.e., the legislatures, as opposed to judicial means, the court system. > > It is very interesting, this process whereby an accepted practice, > understanding, or assumption undergoes challenge and then change over > time. Yesterday's dogma becomes today's atrocity, with a certain amount > of overlap while the process of change occurs, over however long it > takes. > > Slavery is an example, followed by Jim Crow in this country. Sometimes > it takes a war, such as the U.S. Civil War, or WWII, defeating > Hitler-Germany with its racial/ethnic notions that produced the > Holocaust. Even the Holocaust took quite awhile to become as prominent > as it now is. I visited the Holocaust Museum in D.C. last week, a > museum designed to ensure that what we've learned through bitter > experience is not forgotten. > > Constitutional law, dealing as it does with constitutional attitudes, is > legitimately fought out in court, and in THE Court, as Lawrence shows. > We shouldn't overlook, in analyzing and teaching cases, that frequently > they exemplify the cultural wars of their day, from Marshall's > nationalism to the laissez-faire era of Lochner, to today's realization > that it's the individual's power to choose the course of his or her > life that requires protection and is thus today's cultural battleground. > > > Robert Sheridan > [EMAIL PROTECTED] <mailto:[EMAIL PROTECTED]> > > > > ----- Original Message ----- > From: Tepker, Rick <mailto:[EMAIL PROTECTED]> > To: [EMAIL PROTECTED] <mailto:[EMAIL PROTECTED]> > Sent: 6/27/2003 8:58:12 AM > Subject: Shameless self-promotion: A column on Lawrence in a local > newspaper > > > > > Last week, the Supreme Court of the United States showed the > courage to discard one of its tragic mistakes. In 1986, in Bowers v. > Hardwick, the justices said that homosexuals did not deserve or enjoy > the same rights of sexual privacy that all human beings cherish as one > of the essential elements of human liberty. > > The Court reconsidered and overruled Bowers in a decision > announced on the last day of its term. The lawyers had scrambled to > find narrow and persuasive reasons to undermine Bowers, but the justices > accepted the boldest and broadest arguments for gay rights. > Unfortunately, the justice and humanity of the Court's newer decision, > Lawrence v. Texas, is compromised by the fact that the justices recited > arguments that prove too little and too much. > > Justice Anthony Kennedy all but said that times had changed. > And the newer sentiments of the country amounted to a new tradition the > Court was obliged to respect. He is probably right in the sense that > the gay rights case probably reflects our present culture more than our > past traditions. > > Ten years ago, Julia Roberts starred in a film "The Pelican > Brief." Early in the film, before things get tense, there is a scene > which only a law professor like myself woujld remember and appreciate. > The film's law professor asks the class about Bowers case. The students > respond predictably with arguments about privacy. The law professor > follows the requirements of the job and reminds the students that > neither the word "privacy" nor any "right of privacy" actually appears > in the United States Constitution. Darby Shaw (Julia) shifts gears and > argues that a person who cannot enjoy sexual intimacy with the person he > or she loves "cannot be free." The law professor responds that the > Court did not agree. He says, "the Supreme Court found that the statute > did not violate the right to privacy - why is that?" Darby retorts > "Because they were wrong." She flashes that! movie star smile. The > scene ends. Julia's answer is the last word. Later, we learn that > there are reasons why the professor might have tolerated "because they > were wrong" as acceptable constitutional argument. > > Unfortunately, it turns out that her answer was a complete > analysis. Justice Kennedy said so last week. Unfortunately, he didn't > offer much more in the way of explanation than Julia -- and neither he > nor his opinion have that smile. > > The discarded Bowers decision had been a rallying point for a > politics led by the "Know-Nothing" elements of our politics, driven by > stone throwers who are always ready to throw stones at someone else's > sin. Instead of making that part of our history clear, or clearer as did > Justice Sandra Day O'Connor in a concurring opinion, the majority > reaches for a less accusatory and divisive rationale. Justice Kennedy > tells us that "Bowers was not correct when it was decided, and it is not > correct today." It misconceives the issues at stake. It underestimates > the character and importance of privacy and human liberty. > > All the conclusions are there, but few of the explanations. Like other > > historic decisions in favor of human liberty, Kennedy's opinion in > Lawrence will be written and rewritten by law professors in search of a > better basis for a just result. > > Justice Kennedy tells us: "As the Constitution endures, persons > in every generation can invoke its principles in their own search for > greater freedom." There is a lot of power and danger in that sentence. > It goes a long way toward conceding much that Senator Rick Santorum > argued in an unfortunate display of anti-gay prejudice a few weeks ago. > > > Is the essence of this new ruling a modern version of greater, > ever-expanding freedom? Or is it a belated recognition that all human > beings deserve the same core of privacy and freedom for sexual intimacy? > Have the justices aligned themselves in favor of one side in our > nation's culture wars, as Justice Antonin Scalia complained in dissent? > Or is the humane heart of the decision the recognition that our republic > never was, is not now, and can never be a totalitarian mechanism in > which majorities control the essence of individuality? Justice > Kennedy's failure to offer rigorous answers to these basic questions may > make the case an enigma and a tragedy wrapped in substantive justice and > real compassion. > > _______________________ > Rick Tepker > Calvert Chair of Law and Liberty > & Professor of Law > University of Oklahoma > Norman, Oklahoma 73019 > <mailto:[EMAIL PROTECTED]> [EMAIL PROTECTED] > 405.325.4832 > NC: 405.826.0845
