(Same) Sex, Lies, and Democracy: Tradition, Religion, and Substantive Due Process (with an Emphasis on Obergefell v. Hodges)

Substantive due process issues implicitly concern voice. Whose voice will be heard? Although such issues often remain submerged, the Justices occasionally translate them into disputes over democratic participation and power. The Supreme Court’s most important substantive due process decision in years, Obergefell v. Hodges, entailed such a battle over democracy. The multiple dissenting opinions insisted that the decision demeaned the opponents of same-sex marriage, many of whom were inspired by traditional values and religious convictions. The majority explicitly disagreed, reasoning that the case resolved the rights of same-sex couples to marry and did not diminish the opponents’ voices. The dissenters were right—at least in part. Obergefell necessarily demeaned traditional and religious opponents of samesex marriage, but nevertheless, the Court reached the correct outcome. Judicial neutrality is impossible, so the Court’s decision inevitably would have privileged one voice or view over another. Although the dissenters further asserted that the majority impaired democracy, the opposite was true. Laws that discriminate against peripheral groups, such as gays and lesbians, undermine the democratic process. In a wellfunctioning democracy, certain issues must be off the table, beyond democratic debate. Treating gays and lesbians as full and equal citizens in good standing is one such issue, whether in regard to marriage or otherwise. The majority’s decision in Obergefell ultimately bolstered the democratic process

Constitutional Interpretation and History: New Originalism or Eclecticism?

The goal of originalism has always been purity. Originalists claim that their methods cleanse constitutional interpretation of politics, discretion, and indeterminacy. The key to attaining purity is history. Originalist methods supposedly discern in history a fixed constitutional meaning. Many originalists now claim that the most advanced method—the approach that reveals the purest constitutional meaning—is reasonable-person originalism. These new originalists ask the following question: When the Constitution was adopted, how would a hypothetical reasonable person have understood the text? This Article examines historical evidence from the early decades of nationhood to achieve two goals. First, it demonstrates that reasonable-person originalism is incoherent at its historical core. As an interpretive method, originalism cannot achieve its stated goal: to identify fixed and objective constitutional meanings. Contrary to originalist claims, historical research uncovers contingencies and contexts. More specifically, the evidence shows that reasonable-person originalism is historically unjustified. Early in the nation’s history, neither lawyers nor laypersons would have suggested that constitutional interpretation should be based on the views of a hypothetical reasonable person. Second, the Article demonstrates that the historical evidence instead supports an alternative conception of constitutional interpretation. In the early decades, numerous Americans—including framers, Supreme Court justices, and constitutional scholars—used an eclectic or pluralist approach to constitutional interpretation. Depending on the case, an eclectic interpreter considered a shifting variety of factors, including original meaning, framers’ intentions, practical consequences, and judicial precedents

The Politics of the Law-Politics Dichotomy

Throughout American history, judges and legal scholars have articulated and maintained a sharp separation between law and politics. This essay asks the question: Why do so many judges and scholars devote so much time and energy to bolstering this law-politics dichotomy? Using William Baude and Stephen E. Sachs’s recent article “The Law of Interpretation as a Sp ringboard,” this essay explores the history and political valence of the dichotomy. From Baude and Sach’s perspective, politics is like a disease: if it infects legal interpretation, then it threatens the health of the judicial process. But the history of the law-politics dichotomy reveals that it empowers legal scholars to articulate and judges to implement their political preferences without acknowledging as much. Politics, it turns out, acts tacitly through legal and judicial processes

Actions in Contract Resulting from Aircraft Crashes

The purpose of this article is to examine possible causes of actions sounding in contract available in cases of death or personal injuries arising out of aircraft crashes. The ability of the plaintiff to sustain an action in contract may have a decisive effect on the outcome of the litigation in any one of the following respects: First, as a general rule the law of the place of the accident governs tort actions, while the law of the place of contracting governs contract actions and for one of several reasons it may be advantageous to the plaintiff to avoid the law of the place of the accident; the place of the accident may impose a monetary limitation on the amount recoverable for wrongful death; the place of the accident may have a shorter period of limitations than the place of contracting; the place of the accident may grant only a survival action and not an action for wrongful death, while the place of the contract allows both. Second, the sustaining of an action in contract may be a means of avoiding the need to prove negligence