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September 20, 2009

Looking at Lawrence as an Eighth Amendment case

Thanks to this post at CrimProf, I just noticed this intriguing piece by Sheldon Bernard Lyke on SSRN, which is titled "Lawrence as an Eighth Amendment Case: Sodomy and the Evolving Standards of Decency." Here is the abstract:

This Article offers an alternate reading of Lawrence v. Texas, the 2003 U.S. Supreme Court case that struck down the Texas sodomy statute that criminalized private, consensual, and adult same-sex intercourse.  While most scholars discuss Lawrence as a substantive due process case and struggle to find meaning in the ambiguity of the decision’s language, I propose that Lawrence is better read as an Eighth Amendment case.  This Article argues that the majority opinion analyzed the constitutionality of the Texas sodomy law as it would analyze the cruelty and unusualness of a criminal law in an Eighth Amendment evolving standards of decency case.  The Lawrence Court not only used objective indicators to find a U.S. consensus against sodomy laws but was also cognizant of foreign nations that refused to criminalize sodomy.  Additionally, I suggest that the Eighth Amendment and the evolving standards of decency were on the minds of the Justices when deciding Lawrence, and at a minimum, the case was decided in the amendment’s shadow.  The Justices were exposed to an evolving standards of decency analysis in both written briefs and oral arguments, and the majority opinion used language evocative of emergence and evolution. I discuss the importance of this alternative reading of Lawrence and begin a conversation on the possibilities of extending an evolving standard of decency analysis to issues other than sodomy and areas beyond criminal law.

Of course, the Eighth Amendment's actual textual prohibition on the infliction og "cruel and unusual punishments" says nothing expressly about so-called evolving standard of decency.  But, ever since the Surpeme Court coined this felicitious phrase in Trop v. Dulles, this concepts has had a prominent place in Eighth Amendment jurisprudence.

September 20, 2009 at 05:00 PM | Permalink


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The sodomy law had not been enforced. The homosexuals activists provoked the police intentionally, to generate this case. They knew the lawyer hierarchy would legalize butt banging, despite the harm that is causes. The lawyer hierarchy is now making homosexual conduct a privileged and immunized practice, no matter the devastating damage. The lawyer hierarchy legalized without legislative authority a sex act that has caused the slow death of 10's of millions of people, as is usual with the lawyer hierarchy, most victims of their sick decisions have dark skins.

An amendment should recognize that desuetude represents the false notice about a prohibition, and violates procedural due process as much as lack of notice. If the government authorities stop believing in a rule, and never enforce it anymore, it should automatically be repealed after 5 years of non-use. Desuetude violates procedural due process.

Posted by: Supremacy Claus | Sep 20, 2009 5:37:55 PM

I don't think the reasoning of Lawrence is quite as flimsy as the reasoning of Kennedy and Roper. The common thread of all 3 decisions is authorship by the court's least-principled Justice and joinder by the liberal bloc.

I doubt Prof. Lyke is the one who's beginning the conversation about extending that mode of "analysis" into other areas.

Claus is right about desuetude, at least as a general matter. It's an underused doctrine, and a better alternative than much of the garbage that's crept into constitutional law.

Posted by: anonymous | Sep 21, 2009 10:29:58 AM

Stay classy, SC.

You too, Professor Berman. Thanks for maintaining a place where I can come to read the latest sentencing news and bigoted, hateful rants about that news.

Posted by: attorney | Sep 21, 2009 2:20:16 PM

Atty: The lawyer profession is in utter failure in every goal of every subject, save for rent seeking. It needs help. If someone can rebut that with facts, and not personal attacks, I am ready to change my view. The law is my chattel, and you law technicians are messing with it. You may have me assassinated, nothing will change about this utter failure.

Posted by: Supremacy Claus | Sep 21, 2009 4:31:53 PM

The word "unusual" in the phrase cruel and unusual, certainly seems to me to be an express reference to contemporary standards.

Posted by: ohwilleke | Sep 21, 2009 6:59:46 PM

It wouldn't surprise me if there were some 8th amendment principles that seeped in to the opinion. Lawrence v. Texas states that you can't criminally punish private sexual conduct between two consenting adults. (And frankly, I think that's all it stands for--every federal court to have considered the issue seems to agree with me.) It is, at its heart, a case about criminal liability.

Posted by: Res ipsa | Sep 22, 2009 12:52:50 PM

It seems to me, SC, that anti-sodomy laws (and attempted violations of those laws) are simply a way to generate lawyer rent for behavior that is not intrinsically harmful and that people were going to engage in anyways. The lawyer hierarchy realized, however, that it wasn't generating enough rent, and so states stopped enforcing their laws.

Posted by: Res ipsa | Sep 22, 2009 1:00:18 PM

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