Day: April 13, 2017

Obergefell and Tradition

In recognizing a substantive due process liberty interest in same-sex marriage, Justice Kennedy’s opinion in Obergefell v. Hodges eschewed any need to rely on a “careful description” of the right, or the recognition that the right is “deeply rooted in this Nation’s history and tradition.” The majority explains that Washington v. Glucksberg is simply inapplicable:

Objecting that this does not reflect an appropriate framing of the issue, the respondents refer to Washington v. Glucksberg, 521 U.S. 702, 721, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997), which called for a “ ‘careful description’ ” of fundamental rights. They assert the petitioners do not seek to exercise the right to marry but rather a new and nonexistent “right to same-sex marriage.” Brief for Respondent in No. 14–556, p. 8. Glucksberg did insist that liberty under the Due Process Clause must be defined in a most circumscribed manner, with central reference to specific historical practices. Yet while that approach may have been appropriate for the asserted right there involved (physician-assisted suicide), it is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy. Loving did not ask about a “right to interracial marriage”; Turner did not ask about a “right of inmates to marry”; and Zablocki did not ask about a “right of fathers with unpaid child support duties to marry.” Rather, each case inquired about the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right.

But this isn’t quite right. The Court’s leading substantive due process opinions in fact attempted to connect the liberty interest at issue with “reference to specific historical practices.” This history may be contrived, but the Justice still felt the need to place their ruling within some bounds.

In Griswold v. Connecticut, Justice Douglas casts the privacy rights of married couples as right older than our Constitution:

We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

In Roe v. Wade, Justice Blackmun spent page after page talking about quickening, to support the conclusion that at the time of the ratification of the 14th Amendment, states did not prohibit abortions during the first trimester.

It is thus apparent that, at common law, at the time of the adoption of our Constitution, and throughout the major portion of the 19th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity to make this choice was present in this country well into the 19th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy.

Even in Lawrence v. Texas, Justice Kennedy cited briefs by the Cato Institute and the ACLU to support the notion that at the time of the framing of the 14th Amendment, the state did not criminalize consensual homosexual sodomy. This discussion was aimed at rebutting Justice White’s conclusion in Bowers v. Hardwick, that “Proscriptions against that conduct have ancient roots.” Rather, Justice Kennedy wrote:

In academic writings, and in many of the scholarly amicus briefs filed to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majority and concurring opinions in Bowers. Brief for Cato Institute as Amicus Curiae 16—17; Brief for American Civil Liberties Union et al. as Amici Curiae 15—21; Brief for Professors of History et al. as Amici Curiae 3—10. We need not enter this debate in the attempt to reach a definitive historical judgment, but the following considerations counsel against adopting the definitive conclusions upon which Bowers placed such reliance.

At the outset it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. . . . Thus early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonprocreative sexual activity more generally. This does not suggest approval of homosexual conduct. It does tend to show that this particular form of conduct was not thought of as a separate category from like conduct between heterosexual persons.

Why did these Justices–who were by no means originalists–feel compelled to turn to history? The answer can be found in Justice Harlan’s influential dissenting opinion in Poe v. Ullman. Chief Justice Roberts’s dissent ably summarizes the historical thrust of Harlan’s opinion.

The majority also relies on Justice Harlan’s influential dissenting opinion in Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961). As the majority recounts, that opinion states that “[d]ue process has not been reduced to any formula.” Id., at 542, 81 S.Ct. 1752. But far from conferring the broad interpretive discretion that the majority discerns, Justice Harlan’s opinion makes clear that courts implying fundamental rights are not “free to roam where unguided speculation might take them.” Ibid. They must instead have “regard to what history teaches” and exercise not only “judgment” but “restraint.” Ibid. Of particular relevance, Justice Harlan explained that “laws regarding marriage which provide both when the sexual powers may be used and the legal and societal context in which children are born and brought up … form a pattern so deeply pressed into the substance of our social life that any Constitutional doctrine in this area must build upon that basis.” Id., at 546, 81 S.Ct. 1752.

Yet, with Obergefell, the need to rely on tradition was firmly rejected. Indeed, no nation on earth legalized same-sex marriage before 2001.

If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.

This sub silentio overruling of Washington v. Glucksberg was not lost on the Chief Justice:

Perhaps recognizing how little support it can derive from precedent, the majority goes out of its way to jettison the “careful” approach to implied fundamental rights *2621 taken by this Court in Glucksberg. Ante, at 2602 (quoting 521 U.S., at 721, 117 S.Ct. 2258). It is revealing that the majority’s position requires it to effectively overrule Glucksberg, the leading modern case setting the bounds of substantive due process. At least this part of the majority opinion has the virtue of candor. Nobody could rightly accuse the majority of taking a careful approach.

Or on Justice Alito:

For today’s majority, it does not matter that the right to same-sex marriage lacks deep roots or even that it is contrary to long- established tradition.The Justices in the majority claim the authority to confer constitutional protection upon that right simply because they believe that it is fundamental.

This utter rejection of tradition, without even the need to feign one, effects a massive shift in the Court’s already unbounded substantive due process jurisprudence.

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ConLaw Class 25 – The First Amendment – Speech I

Class 25 – 4/13/17

The First Amendment – Speech I

  • The “Bill of Rights” (138).
  • Barron v. City of Baltimore (139 – 142).
  • New York Times v. Sullivan (1275 –  1282)
  • Snyder v. Phelps (1287 – 1297)
  • United States v. Alvarez (1297 – 1308)
  • United States v. O’Brien (1176 – 1180).
  • Texas v. Johnson (1181 – 1187)

The lecture notes are here.

Barron v. Baltimore

Here is a map of Baltimore, showing the location of Barron’s wharf on the harbor.


This is a copy of Bouldin Atlas (1833) showing Craig and Barron’s wharf. You can download a high-resolution version of the map here.


Here is the famous “Heed Their Rising Voices” advertisement that ran in the New York Times on March 29, 1960.


Here is a transcript of the advertisement.

The New York Times

“The growing movement of peaceful mass
demonstrations by Negroes is something
new in the South, something understandable….
Let Congress heed their rising voices,
for they will be heard.”
– New York Times editorial
Saturday, March 19, 1960

Heed Their
Rising Voices

As the whole world knows by now, thousands of Southern Negro students are engaged in wide-spread non-violent demonstrations in positive affirma-tion of the right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights.  In their efforts to uphold these guarantees, they are being met by an unprecedented wave of terror by those who would deny and negate that document which the whole world looks upon as setting the pattern for modern freedom….

In Orangeburg, South Carolina, when 400 students peacefully sought to buy doughnuts and coffee at lunch counters in the business district, they were forcibly ejected, tear-gassed, soaked to the skin in freezing weather with fire hoses, arrested en masse and herded into an open barbed-wire stockade to stand for hours in the bitter cold.

In Montgomery, Alabama, after students sang “My Country, ‘Tis of Thee” on the State Capitol steps, their leaders were expelled from school, and truck-loads of police armed with shotguns and tear-gas ringed the Alabama State College Campus.  When the entire student body protested to state authorities by refusing to re-register, their dining hall was pad-locked in an attempt to starve them into submission.

In Tallahassee, Atlanta, Nashville, Savannah, Greensboro, Memphis, Richmond, Charlotte, and a host of other cities in the South, young American teen-agers, in face of the entire weight of official state appa-ratus and police power, have boldly stepped forth as protagonists of democracy.  Their courage and amaz-ing restraint have inspired millions and given a new dignity to the cause of freedom.

Small wonder that the Southern violators of the Constitution fear this new, non-violent brand of freedom fighter…even as they fear the upswelling right-to-vote movement.  Small wonder that they are determined to destroy the one man who, more than any other, symbolizes the new spirit now sweeping the South-the Rev. Dr. Martin Luther King, Jr., world-famous leader of the Montgomery Bus Protest.  For it is his doctrine of non-violence which has inspired and guided the students in their widening wave of sit-ins; and it this same Dr. King who founded and is president of the Southern Christian Leadership Con-ference-the organization which is spearheading the surging right-to-vote movement.  Under Dr. King’s direction the Leadership Conference conducts Stu-dent Workshops and Seminars in the philosophy and technique of non-violent resistance.

Again and again the Southern violators have answered Dr. King’s peaceful protests with intimida-tion and violence.  They have bombed his home almost killing his wife and child.  They have assaulted his person.  They have arrested him seven times-for “speeding.” “loitering” and similar “offenses.”  And now they have charged with “perjury”-a I under which they could imprison him for ten years.   Obviously, their real purpose is to remove him physi-cally as the leader to whom the students and millions of others—look for guidance and support, and thereby to intimidate all leaders who may rise in the South.  Their strategy is to behead this affirmative movement, and thus to demoralize Negro Americans and weaken their will to struggle.  The defense of Martin Luther King, spiritual leader of the student sit-in movement, clearly, therefore, is an integral part of the total struggle for freedom in the South.

Decent-minded Americans cannot help but applaud the creative daring of the students and the quiet heroism of Dr. King.  But this is one of those moments in the stormy history of Freedom when men and women of good will must do more than applaud the rising-to-glory of others.  The America whose good name hangs in the balance before a watchful world, the America whose heritage of Liberty these Southern Upholders of the Constitution are defending, is our America as well as theirs…

We must heed their rising voices-yes-but we must add our own.

We must extend ourselves above and beyond moral support and render the material help so urgently needed by those who are taking the risks, facing jail, and even death in a glorious re-affirmation of our Constitution and its Bill of Rights.

We urge you to join hands with our fellow Amer-icans in the South by supporting, with your dollars, this Combined Appeal for all three needs-the defense of Martin Luther King-the support of the embattled students-and the struggle for the right-to-vote.

Your Help is Urgently Needed…NOW!!

L.B. Sullivan, the Public Safety Commissioner of Montgomery, Alabama found the advertisement libelous, as there were several inaccurate statements. King was arrested four times, not seven times. Even though Sullivan was not named, he brought a libel suit in his capacity as head of the police department.

Sullivan is standing to the right of the horse.


Here is Sullivan talking with police officers.


Here is Sullivan with his family in 1962.

sullivan-family-1962Snyder v. Phelps

This Marine Lance Cpl. Matthew A. Snyder who was killed in Iraq in 2006.

The Westboro Baptists protested outside the cemetery during Snyder’s funeral. The family did not see the protestors at the time, and only became aware of their presence later. The Baptists protest funerals, always quietly, holding up signs with these sorts of messages:

The case was argued for Respondents by Margie Phelps, who is Fred Phelp’s daughter.

The evening before oral arguments at the Supreme Court, I conducted this interview with Orlando Bethel from Alabama who was not a member of Phelps’s church, but was sympathetic to his views, and perspectives on constitutional law.

United States v. Alvarez

This is Xavier Alvarez, the defendant.

United States v. O’Brien

Here are photographs of draft-card burning.

This is a scene from the production Hair.

Texas v. Johnson

This is Gregory Johnson who was arrested after burning an American flag at the 1984 Republican National Convention in Dallas.

Johnson resumed his flag-burning protest at the 2016 RNC in Cleveland.

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Prop1 Class 25 – Landlord-Tenant Relationship III: Implied Warranty of Habitability

Class 25 – 4/13/17

Landlord-Tenant Relationship III: Implied Warranty of Habitability

  • Hilder v. St. Peter, 515-522
  • Notes, 522-525
  • Retaliatory Eviction, 526
  • Landlord’s Tort Liability, 526-527
  • Chicago Board of Realtors v. City of Chicago, 531-533
  • Notes, 534-540 (skim)

The lecture notes are here.

Here is the apartment at issue in Hilder v. St. Peter at 10 Church Street, Rutland, VT.


View Larger Map

This is Judge Richard Posner. He adjudicates in beast mode.


This is the other beast of the 7th Circuit, Judge Frank Easterbrook.


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