Constitutions, Courts, and History: Historical Narratives in Constitutional Adjudication

Chapter One. Historical Narratives in Constitutional Reasoning: Intuitions and Myths Revisited

CHAPTER ONE Historical Narratives in Constitutional Reasoning: Intuitions and Myths Revisited “Historic continuity with the past is not a duty, it is only a necessity” Justice Oliver Wendell Holmes1 References to history and traditions have acquired a curious reputation among lawyers for being objective and neutral points of reference , and thus for being capable of curbing indeterminacy in constitutional adjudication. When inquiring whether a new claim fits within the substantive range of the Due Process Clause, the U.S. Supreme Court sets course to explore whether the right or liberty interest asserted by the petitioner is “deeply rooted in the Nation’s history and tradition.” It was in Bowers v Hardwick2 where the U.S. Supreme Court, per Justice White, sought evidence to establish whether the “history and traditions of the Nation” favored the right to engage in consensual homosexual sodomy, as the majority in the case framed the issue. After a brief review of various rules outlawing consensual homosexual sodomy, Justice White rejected the claim for want of evidence on past practices, and also because of the failure to show that the claim was “implicit in the concept of ordered liberty.”3 In the case Justice Blackmun concluded his dissent by finding that “depriving individuals of the right to choose for themselves how to conduct their intimate relationships poses a far greater threat to the values most deeply rooted in our Nation’s history than tolerance of nonconformity could ever do.”4 These conclusions sound as if they were reached in a different case. Nonetheless, by the end of the 1990s Chief Justice Rehnquist insisted in a different case that the search for traditions has always been central to Due Process analysis.5 This concept of substantive Due Process review applied by the U.S. Supreme Court emerged with a line of cases starting with Justice 18 CHAPTER ONE Harlan’s dissent in Poe v Ullman6 and his subsequent concurring position in Griswold v Connecticut.7 It was in the latter case that Justice Harlan spoke of “continual insistence upon respect for the teachings of history, solid recognition of the basic values that underlie our society , and wise appreciation of the great roles that the doctrines of federalism and separation of powers have played in establishing and preserving American freedoms.” He continued that “Adherence to these principles will not, of course, obviate all constitutional differences of opinion among judges, nor should it. Their continued recognition will, however, go farther toward keeping most judges from roaming at large in the constitutional field than will the interpolation into the Constitution of an artificial and largely illusory restriction on the content of the Due Process Clause.”8 Thus Justice Harlan called for consulting history and traditions in the application of the Due Process Clause in order to induce judicial self-restraint. The above words, however, do not outline criteria for evaluating evidence from past practices relevant for the construction of the Due Process Clause. Indeed, these words are the concurring judgment’s grand finale. The very phrase “deeply rooted in the Nation ’s history and tradition” was used by Justice Powell in another case,9 again more as a fancy formulation than as a standard for judicial evaluation. However, in time these phrases became a familiar test on which the core of substantive Due Process analysis rests. Still, not until the U.S. Supreme Court’s recent decision in Lawrence v Texas10 did it become so apparent that the Court regards the inquiry into traditions and history as so crucial for Due Process analysis that the disagreement concerning the analysis in a particular case could ultimately contribute to overturning precedent, as happened recently with Bowers in Lawrence. In Lawrence, Justice Kennedy writing for the majority found that “there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter.”11 In reaching this conclusion, the Lawrence majority did provide extensive analysis of the past regulation of sodomy. Thus, in essence, the Lawrence majority overturned Bowers’s account of the constitutionality of the prohibition of homosexual sodomy because it was erroneously decided.12 Mistakes were identified regarding both the delineation of the issue and the conclusion drawn from the historical record.13 Between Bowers and Historical Narratives in Constitutional Reasoning 19 Lawrence not even a mere twenty years had passed, thus one might indeed wonder whether this U-turn in jurisprudence has something to do...