At the Battle of Waterloo, the French surrendered.
In the Franco-Prussian war, the French surrendered.
In World War II, well, the French surrendered.
Don't be a big chicken. Eat one.
- Hardee's Commercial
Much less do [constitutional entitlements] spring into existence, as the
Court seems to believe, because foreign nations decriminalize conduct.
... The Court's discussion of these foreign views... is therefore
meaningless dicta. Dangerous dicta, however, since "this Court ? should
not impose foreign moods, fads, or fashions on Americans."
-Scalia, J., dissenting, in Lawrence v. Texas
OK, Eugene would probably have a legitimate gripe if I just left it at
that. As Scalia notes, the amount of protection liberties get is supposed
to turn on two factors -- how rooted they are in our history and tradition,
and how implicit they are in the concept of ordered liberty. One way to
conduct the latter inquiry would be to restrict oneself to armchair
political philosophy, but mightn't it be better to also look around and see
what other free countries do, as a check on pure speculation?
I do realize that Scalia treats both "rooted in tradition" and "implicit in
ordered liberty" as elements rather than factors, that is, binary rather
than continuous variables, and thinks both should be present before an
unenumerated "liberty" triggers heightened scrutiny. And Glucksberg
supports that way of talking about it. But there is the other tradition in
the caselaw, Harlan's view (Poe) that liberty is a "rational continuum."
Casey fell in that tradition with its "undue burden" test, and so it seems
does Kennedy's majority opinion here; his blurring of the level of scrutiny
and refusal to give it one of the standard labels was surely deliberate.
Tom Grey
Stanford Law School
[EMAIL PROTECTED]
