Nelson Lund

Lawrence V. Texas and Judicial Hubris

Lawrence v. Texas produces a desirable policy result, but it deserves condemnation as a legal decision. It repudiates the Supreme Courts 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 provided 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 - sexual 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 nations 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 arguments 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 justifications that could be offered in defense of Lawrence. We show that Professor Robert Posts concept of a conversation between the Court and the nation obliterates 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. Second, we show that Professor Randy Barnett fails in his effort to provide Lawrence with a foundation in the Constitution because he misinterprets the Ninth Amendment 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 Courts substantive due process jurisprudence roughly to where it stood as a result of Carolene Products.

The President as Client and the Ethics of the President’s Lawyers

For many, the exemplars of the unethical government lawyer are Attorney General John Mitchell and Counsel to the President John Dean, both of whom were sent to prison as a result of their excessively loyal service to President Nixon. Every attorney should easily acknowledge both that a lawyer has a high ethical duty of loyalty to his client and that this duty does not excuse, let alone require, the commission of crimes. Extreme examples like Mitchell and Dean can tempt us with the diametrically extreme view articulated by Attorney General Edward Bates: [T]he office I hold is not properly political, but strictly legal; and it is my duty, above all other ministers of state, to uphold the law and to resist all encroachment, from whatever quarter, of mere will and power. Such vacuous pieties did not prevent Bates from adopting an exceedingly generous view of President Lincolns legal authority when political circumstances so demanded,2 and it may well be doubted whether any government lawyer holding a political appointment has ever truly treated his office as completely apolitical.

Political Legitimacy, Direct Democracy, and American Politics

This chapter complements the treatment of natural science in the first two chapters. The American Constitution is the most successful application of the Enlightenment’s new political science, and Rousseau was deeply skeptical about its promises. Nevertheless, his Social Contract and Considerations on the Government of Poland offer considerable support for important features of America’s constitutional arrangements. At the same time, Rousseau’s analysis points to the merits of certain dissident or subdominant strains in American political thought. American students of politics should reconsider the widely held view that Rousseau is a useless or dangerous guide for us. The chapter uses an important decision of the U.S. Supreme Court to show how Rousseau’s analysis of political legitimacy can throw new light on contemporary political issues.

Philosophic Anthropology in the Discourse on Inequality

Rousseau’s Discourse on Inequality describes the primitive condition that he thinks was most durable and most conducive to human happiness. Elizabeth Marshall Thomas studied an indigenous African population that is probably descended from people who never left the area in which modern humans evolved, and had until recently undergone less cultural evolution than any other living people. Thomas’ study of these people supports Rousseau’s conjectures about the nature of early social life and enriches his account with a detailed analysis of the social practices that have made this way of life especially durable. The new evidence she supplies is consistent with Rousseau’s claim that human happiness does not require political government or what we call civilized life.

The Evolution of Humanity in Language: Discourse on Inequality and Essay on the Origin of Languages

Rousseau offers a complex response to the Western philosophic tradition that finds the best and most natural way of life within civilization. Rousseau agrees with that tradition in regarding speech as the defining human characteristic, and in seeking to take nature as a guide for human life. He offers a novel theory of the origin and evolution of human languages, which enabled our ancestors to become human and then to develop the social and individual pathologies that plague us today. This chapter compares Rousseau’s conjectures with the findings in several fields of modern science that bear on human evolution. Those findings are consistent with all of the major themes in Rousseau’s account.

Nature and Marriage: Emile or On Education

Having previously addressed the nature of man by looking at his primitive origins, Rousseau’s most ambitious book reopens the question of human nature through a fictional education of an ordinary child in a modern society. Taking Locke and Plato as foils, Rousseau imagines that a wise teacher could follow nature by very artfully arranging for a boy’s moral or social passions to emerge in a different order than they do in actual societies. The greatest challenge, which requires the most art, is to guide the boy into marriage. Deeper and more disturbing than the Letter to d’Alembert, this fiction illuminates the complexity and fragility of the happiness that can be found in traditional family life.

Greatness of Soul and the Souls of Women: Rousseau's Use of Plato's Laws in the Letter to D’Alembert

This article completes the discussion of Plato’s Laws and Rousseau’s Letter to D’Alembert begun in the previous issue of this journal. Using what he had learned from Plato, Rousseau explains and defends the education of women that fits them to rule men in a modern republic. His philosophically informed analysis and defense of the bourgeois family was a challenge to the French Enlightenment, as it is to the dominant views of our own time. It has not yet been proven wrong.

The Uniformity Clause

Congresss power to tax, granted in the first part of this sentence, is limited by the second part, which is known as the uniformity clause. Though the power of taxation is among the most awesome that government possesses,2 the nature and extent of the limitation placed on that power by the uniformity clause has only infrequently been considered by the Supreme Court; in no case has the clause been relied upon to invalidate a statute. The most recent decision, United States v. Ptasynskis which leaves the uniformity clause virtually an empty shell, invites a more thorough consideration of the clause than it has yet been given. A review of the Supreme Courts treatment of the uniformity clause will show that the Court has tried, without success, to devise a workable rule with which to enforce it. The Courts early uniformity clause decisions4 developed a test according to which a tax satisfies the clause if it operates in a geographically uniform manner. This test correctly reflects the purpose of the uniformity