This Note sheds new light on Lawrence v. Texas. ; Instead of commenting on the political implications of Lawrence, this Note examines how the Supreme Court returned to an older form of substantive due process analysis without explicitly stating so. Although some of the Lawrence scholarship has pondered how Lawrence changed the type of history the Supreme Court should examine when finding fundamental rights,2 ultimately Lawrence really turned on a conception of classical liberal justice vis-à-vis an application of history. This Note concludes by arguing that whereas a postmodern philosophical approach best explains Lawrence, the Supreme Court ought to apply tenets of classical liberalism in its due process jurisprudence.
Originating in Lockean and Jeffersonian political theory,3 the Due Process Clauses of the Fifth and Fourteenth Amendments are hallmarks of American liberal democracy.4 Safeguarding citizens from state abuse, courts have interpreted the clauses as both protecting rights unenumerated in the text of the Federal Constitution5 and granting procedural guarantees that ensure that when the arms of government seek to deprive citizens of life, liberty, or property, they do so in a manner consistent with the Constitution.6 The former idea is commonly known as substantive due process whereas the latter is known as procedural due process.1 In particular, substantive due process has a mixed history in the eyes of the American public, the state and federal judiciary, and various elected officials.8 Supreme Court decisions that turn on an application of substantive due process are often a piece of a larger domestic debate. Since the Civil Rights era, many substantive due process cases have involved social issues that have sparked heated public discourse as well as a vast array of academic literature.9
Lawrence v. Texas,10 which held that a Texas anti-sodomy statute violated the Fourteenth Amendment,11 will follow this trend. If the reaction to Lawrence follows the history of reaction to controversial Supreme Court opinions, scholars, journalists, and policymakers will intensely comment on the decision. It is quite possible that individuals across the nation will celebrate Lawrence, claiming it as one of the milestones for complete societal acceptance of the rights of homosexuals and the end of needless government regulation of morals.12 Furthermore, Lawrence is interesting from a theoretical standpoint, to wit: academics can understand Lawrence as an example of where the politics of tolerance superceded a given community's interest in virtue.13 In this sense, Lawrence is germane to National Socialist Party of America v. Village ofSkokie.14 As much as these questions and issues concerning the political implications of Lawrence can and should provoke thoughts, this Note does not add to those inquiries.
Instead, this Note focuses on equally interesting questions of how Lawrence fits within the fundamental rights scheme from the viewpoint of structural analysis, and how lawyers will benefit from understanding Lawrence from the viewpoint of classical liberal political thought. As a beginning point, Lawrence does not follow the recent trend of fundamental rights cases.15 To be sure, Lawrence has value as a political precedent that, when taken in conjunction with recent events, will hopefully lead to broader politics of inclusion.16 However, Lawrence will have little effect on how the Rehnquist Court approaches fundamental rights in the future.17 Whereas Lawrence appeared to be one of the most important cases of the 2003 Supreme Court term, ultimately it is not as landmark as one might perceive from a structural viewpoint, for Lawrence is akin to older Supreme Court opinions that invoked classical liberal ideals.
Part I introduces the reader to the familiar framework under which the Supreme Court has reviewed past fundamental rights cases. This framework presupposes that Justices may either impose a conception of justice or utilize an interpretation of history when determining whether to apply heightened review. …