Hardwick and Historiography
William N. Eskridge, Jr. | 1999 U. Ill. L. Rev.
In this article, originally presented as a David C. Baum Memorial Lecture on Civil Liberties and Civil Rights at the University of Illinois College of Law, Professor William Eskridge critically examines the holding of the United States Supreme Court in Bowers v. Hardwick, where the Court held, in a 5-4 opinion, that "homosexual sodomy" between consenting adults in the home did not enjoy a constitutional protection of privacy and could be criminalized by state statute. Because the Court's opinion critically relied on an originalist interpretation of the Constitution, Professor Eskridge reconstructs the history and jurisprudence of sodomy laws in the United States until the present day. He argues that the Hardwick ruling rested upon an anachronistic treatment of sodomy regulation at the time of the Fifth (1791) or Fourteenth (1868) Amendments. Specifically, the Framers of those amendments could not have understood sodomy laws as regulating oral intercourse (Michael Hardwick's crime) or as focusing on "homosexual sodomy" (the Court's focus). Moreover, the goal of sodomy regulation before this century was to assure that sexual intimacy occur in the context of procreative marriage, an unconstitutional basis for criminal law under the Court's privacy jurisprudence. In short, Professor Eskridge suggests that the Court's analysis of sodomy laws had virtually no connection with the historical understanding of eighteenth or mid-nineteenth century regulators. Rather, the Court's analysis reflected the Justices' own preoccupation with "homosexual sodomy" and their own nervousness about the right of privacy previous Justices had found in the penumbras of the Constitution. The Supreme Court's problematic historiography deepens the normative problems other scholars have identified for Hardwick and illustrates conceptual difficulties with the "original understanding" methodology the Court sometimes deploys in constitutional cases.
* John A. Garver Professor of Jurisprudence, Yale Law School. B.A. 1973, Davidson College; M.A. 1974, Harvard; J.D. 1978, Yale. Earlier, and shorter, versions of this article were presented as the Baum Lecture at the University of Illinois College of Law and at a faculty workshop at the Georgetown University Law Center. I particularly appreciate comments I have received from Ian Ayres, Carlos Ball, Jennifer Brown, Peter Byrne, Courtney Howland, Jonathan Katz, Neal Katyal, Sarah Light, Mike Seidman, and Mark Tushnet.
This article was originally presented on November 20, 1997, as the first 1997-98 lecture of the David C. Baum Memorial Lectures on Civil Liberties and Civil Rights at the University of Illinois College of Law.