Abstract

http://ssrn.com/abstract=219611
 
 

Footnotes (131)



 


 



Hardwick and Historiography


William N. Eskridge Jr.


Yale Law School



Abstract:     
This article reconstructs the history and jurisprudence of sodomy laws, which were key to the reasoning of Bowers v. Hardwick, the Supreme Court decision upholding such laws against right to privacy attack. Hardwick rested on an anachronistic treatment of sodomy regulation at the time of the fifth (1791) or fourteenth (1868) amendments, the locus of the right to privacy. Specifically, the framers of those amendments would not have understood sodomy laws as regulating oral intercourse (Hardwick's crime) or as focusing on "homosexual sodomy" (the Court's focus). Moreover, the goal of sodomy regulation had traditionally been to assure that sexual intimacy occur within the context of procreative marriage, an unconstitutional basis for criminal law under the Court's privacy jurisprudence. Thus, the Hardwick Court's analysis of sodomy laws had virtually no connection with the historical understanding of sodomy but, instead, reflected the Justices' own preoccupation with "homosexual sodomy" and their nervousness about the right of privacy previous Justices had found in the due process clause. The Court's problematic historiography deepens the normative problems other scholars have identified for Hardwick and illustrates the conceptual difficulties with the Court's "historical understanding" methodology.

Number of Pages in PDF File: 54

working papers series


Download This Paper

Date posted: March 29, 2000  

Suggested Citation

Eskridge, William N., Hardwick and Historiography. Available at SSRN: http://ssrn.com/abstract=219611 or http://dx.doi.org/10.2139/ssrn.219611

Contact Information

William Nichol Eskridge Jr. (Contact Author)
Yale Law School ( email )
P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-9056 (Phone)
Feedback to SSRN


Paper statistics
Abstract Views: 1,776
Downloads: 221
Download Rank: 80,072
Footnotes:  131

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo3 in 0.312 seconds