Super-Statutes

Not all statutes are created equal. Appropriations laws perform important public functions, but they are usually short-sighted and have little effect on the law beyond the years for which they apportion public monies. Most substantive statutes adopted by Congress and state legislatures reveal little more ambition: they cover narrow subject areas or represent legislative compromises that are short-term fixes to bigger problems and cannot easily be defended as the best policy result that can be achieved. Some statutes reveal ambition but do not penetrate deeply into American norms or institutional practice. Even fewer statutes successfully penetrate public normative and institutional culture in a deep way. These last are what we call super-statutes

Democracy, Kulturkampf, and the Apartheid of the Closet

In the generation after World War 2 (1945-69), homosexual intimacy was a serious crime in Colorado and other states, as was any kind of lewdness or homosexual solicitation; people suspected of being homosexual were routinely dismissed from federal, state, and private employment.\u27 In the generation after Stonewall (1969-97), Colorado\u27s legislature repealed the state\u27s consensual sodomy law, and the governor by executive order prohibited state employment discrimination on the basis of sexual orientation. The cities of Aspen, Boulder, and Denver enacted ordinances prohibiting private sexual orientation discrimination in housing, employment, education, public accommodations, and health and welfare services. In 1992, the voters of Colorado adopted the following amendment to the state constitution: No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. The United States Supreme Court struck down Amendment in Romer v. Evans based on its conflict with the Equal Protection Clause. Writing for himself and two other justices, Justice Scalia dissented, starting with the premise that [t]he Court has mistaken a Kulturkampf for a fit of spite, and arguing at length that the Court\u27s opinion was inconsistent with both precedent and the ordinary operation of the democratic process. Justice Scalia was using the term Kulturkampf\u27 out of context. Kulturkampf, a German word for culture war or struggle, was a nineteenth century campaign by Bismarck\u27s German Empire to domesticate the Roman Catholic Church in public culture. The most noted national Kulturkampf in the United States was the nineteenth century campaign by the federal government to force conformity on the Church of Jesus Christ of the Latter Day Saints ( LDS Church ), a campaign that included statutes criminalizing cohabitation outside of marriage, depriving cohabiting or polygamous Mormons of the rights to vote and to serve on juries, stripping the same rights from anyone advocating polygamy, and confiscating the property of the LDS. The Supreme Court upheld the anti-Mormon Kulturkampf in most respects. The anti-Mormon decision Davis v. Beason was one of two precedents invoked by Justice Scalia to support the constitutionality of Amendment 2. The other precedent cited was Bowers v. Hardwick

Interpreting Legislative Inaction

This month the Supreme Court will hear reargument in Patterson v. McLean Credit Union on the question of whether section 1981 prohibits discrimination by private parties. In this article, Professor Eskridge addresses the issue of how legislative inaction should affect statutory interpretation. He begins by constructing a detailed analysis of the Court\u27s legislative inaction cases, arguing that the case law is much more coherent than previous analysts have suggested. Professor Eskridge then considers Justice Scalia\u27s critique of that case law and provides support for Justice Scalia\u27s views by distinguishing actual and presumed legislative intent, arguing that, based on a conception of actual intent, Justice Scalia\u27s arguments have great persuasive power. However, Professor Eskridge suggests presumed intent may be the more accurate basis for statutory interpretation, and he concludes that on such a basis the guidance provided by legislative silence in the Patterson context is compelling

Norms, Empiricism, and Canons in Statutory Interpretation

In the abstract, there should be little quarrel with the proposition that theories of statutory interpretation should be subjected to empirical testing.\u27 Pragmatic thinkers and practitioners ought to be open to any theory that has a cash-value, as philosopher William James put it.\u27 If an uncompromising application of statutory plain meaning, what I have called the new textualism, produces more predictable results than eclectic theories now deployed by pragmatic judges and scholars, then theory and practice ought to move toward textualism, even more than they already have. If studies deploying a variety of rigorous techniques show that following a textualist approach generates more consistent and uniform interpretations by a variety of different judges than other approaches to statutory interpretation (original intent, purpose), pragmatists ought to consider those findings as a significant reason to support and adopt a more strictly textual approach to statutory interpretation

Channeling: Identity-Based Social Movements and Public Law

The first Part of this Article poses a descriptive, sociological-type model of the multifaceted influence of law on the birth of the primary IBSMs (identity-based social movements) of the latter half of the twentieth century. Legal rules and their enforcers strongly reinforced stigmas and disadvantages that not only provided important incentives and goals for minorities, but helped give concrete meaning to the minority group itself. Much of what made it intelligible (as well as denigrating) to be a colored person or a homosexual or a retarded person was the line drawn by law and the discourse stimulated by legal actors. Naturally, therefore, the law was also one forum where the objects of the stigmas contested their status denigration. If the law was an agent of people\u27s objectification, law\u27s institutions were a situs for those people to reclaim their personhood. In the United States, courts as much as legislatures have been avenues for the IBSM to contest its interconnected legal and social stigmas. Most surprisingly, legal forums and actors provided the backdrop for many of the dramatic events that helped turn a nascent reform movement into a mass social movement. Once that occurred, changes in the law were inexorable. In short, law helped define the contours of the minority group itself, gave the group both incentives and forums in which to resist their stigmas, and provided dramatic events and campaigns that helped turn a reform movement into a mass social movement. Part II of this Article develops a descriptive, sociological-type model for understanding the politics of IBSMs once they have taken off. All over the world, IBSMs have presented themselves and their goals as rights-oriented, as have their traditionalist opponents. In this country, both IBSMs and their opponents have articulated their rights as rooted in the Constitution, making those rights not just fundamental but also beyond the reach of the ordinary political process. In their effort to present their goals as beyond the political process, however, IBSMs have subjected themselves to the legal process. The phenomenon by which social groups have presented their goals in constitutional terms has had a channeling effect on both the IBSMs and their inevitable countermovements. The channeling effect is not one-way. Just as constitutional law has influenced the rhetoric, strategies, and norms of social movements, so the movements have affected the rhetoric, strategies, and norms of American public law. The third and final Part of the Article starts with a descriptive model of the influence of IBSMs on the evolution of public statutory and constitutional law and then turns to the primary normative question for constitutional law professors: What ought to be the role of judges in the evolution of social movements? If emerging social movements are not assured both the protections of the rule of law and, potentially, the recognition suggested by the Equal Protection Clause, the danger of violent conflict is theoretically increased. If the goal of our constitutional polity is preservation and adaptation of a peaceable pluralism, the judiciary is a necessary safety valve. Therefore, I argue that the judiciary needs to accommodate emerging social movements-as well as countermovements. Under the premises of pluralist theory, this accommodation is in the interests of the country but may not be in the interests of some elements of the social movements, for a clever judicial strategy empowers the movement, moderates over the radicals, and channels the movement\u27s discourse in assimilative directions. I conclude that the Supreme Court\u27s constitutional jurisprudence has usually served the pluralist polity pretty well. Its jurisprudence is less defensible if one rejects the relevance of pluralist premises for constitutional theory

Some Effects of Identity-Based Social Movements on Constitutional Law in the Twentieth Century

What motivated big changes in constitutional law doctrine during the twentieth century? Rarely did important constitutional doctrine or theory change because of formal amendments to the document\u27s text, and rarer still because scholars or judges discovered new information about the Constitution\u27s original meaning. Precedent and common law reasoning were the mechanisms by which changes occurred rather than their driving force. My thesis is that most twentieth century changes in the constitutional protection of individual rights were driven by or in response to the great identity-based social movements ( IBSMs ) of the twentieth century. Race, sex, and sexual orientation were markers of social inferiority and legal exclusion throughout the twentieth century. People of color, women, and gay4 people all came to resist their social and legal disabilities in the civil rights movement seeking to end apartheid; various feminist movements seeking women\u27s control over their own bodies and equal rights with men; and the gay rights movement, seeking equal rights for lesbigay and transgendered people. All these social movements sought to change positive law and social norms. In both endeavors, constitutional litigation was critically important. Specifically, these IBSMs became involved in constitutional litigation as part of three different kinds of politics in which they were engaged: their own politics of protection against state-sponsored threats to the life, liberty, and property of its members; their politics of recognition, seeking to end legal discriminations and exclusions of group members and to establish legal protections against private discrimination; and a politics of remediation, to rectify material as well as stigmatic legacies of previous state discrimination. At every stage, but particularly the last, these IBSMs were confronted with a politics of preservation, whereby countermovements sought to limit or roll back legal protections won or sought by the social movement.5 Each kind of politics offered opportunities for different kinds of constitutional arguments. The politics of protection most successfully invoked the First Amendment and the Due Process Clauses of the U.S. Constitution; the politics of recognition and remediation were most closely associated with the Equal Protection Clause; and the politics of preservation invoked arguments based upon constitutional federalism, separation of powers, and various libertarian doctrines