Polarization At The Supreme Court? Substantive Due Process Through The Prism Of Legal Theory (original) (raw)
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Judicial Activism and Arbitrary Control: A Critical Analysis of Obergefell v Hodges
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This article critically analyses the recent US Supreme Court decision in Obergefell v Hodges, the samesex marriage case. The court in Obergefell put a stop to the democratic process by removing an important issue from the realm of democratic deliberation. These unelected judges held that their nation's federal constitution should 'evolve' in a way that is supported by neither the document's language, nor its history or authority. In short, they have imposed their worldview on the people at the expense of federalism and the democratic process. This is why Justice Alito was so correct to state that such an exercise of raw judicial power 'usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage', adding that it evinces 'the deep and perhaps irremediable corruption of [the American] legal culture's conception of constitutional interpretation'.
The Yale Law Journal, 1981
The Yale Law Journal Connecticut, 2 Eisenstadt v. Baird,' Roe v. Wade, 4 and Doe v. Commonwealth's Attorney. 5 The judges and scholars who support judicial intervention usually acknowledge that the rights at stake-variously described in terms of privacy, procreational choice, sexual autonomy, lifestyle choices, and intimate association-are not specified by the text or original history of the Constitution. They argue that the judiciary is nonetheless authorized, if not duty-bound, to protect individua,5 against government interference with these rights, which can be discovered in conventional morality or derived through the methods of philosophy and adjudication. The critics argue that judicial review may be exercised only to enforce explicit constitutional provisions or to ensure the integrity of representative government. They deny that shared social values or fundamental rights exist or, in any case, that courts can ascertain them. The fundamental rights controversy deserves a place in a symposium on legal scholarship: It is concerned with issues that lie at the core of contemporary constitutional discourse-judicial methodology, institutional competence, and democratic theory. My own scholarly agenda also influenced this choice of topic. Several years ago, I started work on an affirmative theory of constitutional decisionmaking based on interpretation-broadly conceived-of the history, structure, and values of American society. I began by examining, and rejecting, "originalist" constitutional interpretation (that is, interpretation rooted in the text and original understanding of the Constitution). 6 The publication of John Hart Ely's important proposals for value-neutral "representation-reinforcing" modes of judicial review 7 occasioned a detour, which confirmed my belief that such process-oriented strate-2. 381 U.S. 479 (1965). Griswold held that a Connecticut statute prohibiting the use of contraceptives could not be applied to married couples. Justice Douglas's opinion for the Court relied on "penumbras" of various provisions of the Bill of Rights. Concurring Justices invoked the Ninth Amendment and the due process clause of the Fourteenth Amendment. The Court has not since recurred to penumbral analysis. 3. 405 U.S. 438 (1972). Eisenstadt invalidated a statute that, in effect, prohibited distributing contraceptives to unmarried persons. The Court remarked that "[i]f the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Id. at 453. 4. 410 U.S. 113 (1973). Roe invalidated a Texas statute prohibiting abortions before as well as after viability. 5. 403 F. Supp. 1199 (E.D. Va. 1975), alf'd mem., 425 U.S. 901 (1976). Doe sustained Virginia's sodomy statute as applied to private consensual homosexual conduct. The Supreme Court affirmed without opinion. Justices Brennan, Marshall, and Stevens voted to note probable jurisdiction and set the case for argument. 6.
Why the Late Justice Scalia Was Wrong: The Fallacies of Constitutional Textualism
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My article concerns constitutional interpretation and substantive due process, issues that played a central role in Obergefell v. Hodges (2015), one of the two same-sex marriage cases. (The other same-sex marriage case was United States v. Windsor (2013). The late Justice Scalia consistently maintained that the Court “invented” substantive due process and continues to apply this legal “fiction” not because the Constitution supports it but simply because the justices like it. Two theories underlay his cynical conclusion. First is the theory of “Constitutional Textualism” — or just plain “Textualism” — which says that the meaning of the Constitution lies entirely within the “four corners” of the document. Second is the theory of “Originalism,” which says that this meaning was fixed at the time of ratification. (Likewise, the meanings of the amendments were fixed at the time of their ratification.) While Justice Scalia helped to inspire a Textualist/Originalist (and anti-substantive-du...
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campbell law review, 2018
Jn an effort to discredit substantive due process, originalists often misinterpret the federal Due Process Clauses. Justice Clarence Thomas's Obergefell v. Hodges dissent illustrates this. In this dissent, Justice Thomas cites Blackstone's Commentaries to argue that Due Process "liberty" is merely freedom from physical restraint, what Blackstone describes as the power of "loco-motion. " This Article challenges Justice Thomas's narrow view of Due Process liberty from Obergefell v. Hodges on its own terms. It distills from the dissent and its sources five assumptions or premises supporting Justice Thomas's view, and it confronts each of these with contrary evidence from the historical record, especially the 1776 to 1789 American state "law of the land" clauses. Along the way, this Article establishes that Due Process "life, liberty, or property" is best understood as a single term of art describing all interests to be protected by the state under a Lockean social contract. The Article also illustrates the practical effect of this competing view by examining the pre-Fourteenth Amendment "law of the land" case law from North Carolina.
Duke Journal of Gender Law Policy, 2013
court ruling, in Perry v. Schwarzenegger, 7 that Prop 8 was unconstitutional. The Court vacated the Ninth Circuit's opinion, 8 which relied heavily on Romer in affirming the district court's conclusions about Prop 8. While there was some initial controversy over the precise impact of the Court's decision not to decide, the practical effect has been that the Ninth Circuit swiftly lifted its stay of the district court ruling, the governor instructed clerks to issue marriage licenses to same-sex couples and such couples began to marry on June 28, 2013. 9 Romer was not about marriage, as such, and yet, it proved an extremely important precedent in both the DOMA and the Prop 8 litigation. 10 The aim of this article is to reflect on Romer when it was decided and now as it bears on the use of law as a vehicle to express morality, in particular, "moral disapproval of homosexuality" and moral approval-and the defense and nurture-of "traditional, heterosexual marriage." 11 Looking back to Romer, the article will examine arguments made by the parties and their various friends of the court before the U.S. Supreme Court-nearly twenty years ago-about whether or not Amendment 2 was a constitutionally permissible expression of moral disapproval of homosexuality and of support for traditional heterosexual marriage. As Lisa Keen and Suzanne Goldberg observe, in their account of the Romer litigation, "[t]he extraordinary array of organizations filing briefs in this case underscored the intensity and scope of the debate prompted by the case." 12 The article will then move forward in time, examining how a far greater number of amici and the courts deployed Romer in the recent successful challenge to Section 3 of DOMA. Both Romer and DOMA date back to 1996. Congress enacted DOMA just a few months after the Court decided Romer, striking down Amendment 2. As this article elaborates, both proponents of Amendment 2 and of DOMA justified these measures as needed to ward off a threat to traditional morality posed by an aggressive gay rights agenda; in the case of DOMA, the agents to curb were activist courts, while, in Colorado, the problem was successes at the level of municipal anti-discrimination ordinances. 13 The Justice Department advised Congress, even after Romer, that DOMA was constitutional. 14 DOMA's 7. 704 F. Supp. 2d 921, 994 (N.D. Cal. 2010), aff'd sub nom, Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012). 8. See Perry v. Brown, 671 F.3d 1052, 1096 (9th Cir. 2012) (holding that Proposition 8 violated the Equal Protection Clause, after comparing Proposition 8 to Amendment 2, which was invalidated in Romer).
Justice Kennedy's Decision in Obergefell: A Sad Day for the Judiciary
SSRN Electronic Journal, 2015
If you are among the many Americans-of whatever sexual orientation-who favor expanding same-sex marriage, by all means celebrate today's decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it. 2 ***