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

The Many Faces of Sexual Consent

Returning from time to time to the Califia short story, this Article explores the role of sexual consent in American law. I first examine the many faces law finds for consent or its opposite; these many faces reveal the impossibility of divorcing consent from context and social policy. For this reason, the very meaning of consent has changed markedly in the last generation in response to women\u27s increased power. My thesis is that the law of consent ought to and probably will change in other ways now that gay power joins and sometimes stands in opposition to women\u27s power. Jessie illustrates one cutting edge-sadomasochism (S&M)-that serrates traditional liberalism, modern feminism, and gaylaw

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from federal, state, and private employment.\u27 In the generation after Stonewall (1969-97), Colorado\u27s legislature repealed the state\u27s consensual sodomy law, and the governor by executive order prohibited state employment discrimination on the basis of sexual orientation.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

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

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