Lawrence and a Sexual Autonomy Right to Obscenity

Eugene Volokh analyzes "whether Lawrence v. Texas means that obscenity laws are unconstitutional, on a sexual rights theory even if not a speech rights theory." His analysis is available here at his blog The Volokh Conspiracy.

Racial Preferences on Ballot in Michigan

The NYTimes has a story today that begins:

Three years after the Supreme Court heard Jennifer Gratz’s challenge to the University of Michigan’s affirmative action policy, she is still fighting racial preferences, this time in a Michigan ballot initiative.

“We have a horrible history when it comes to race in this country,” said Ms. Gratz, 29, a white applicant who was wait-listed 11 years ago at the state’s flagship campus here. “But that doesn’t make it right to give preference to the son of a black doctor at the expense of a poor student whose parents didn’t go to college.”

The ballot initiative, Proposition 2, which would amend Michigan’s Constitution to bar public institutions from considering race or sex in public education, employment or contracting, has drawn wide opposition from the state’s civic establishment, including business and labor, the Democratic governor and her Republican challenger. But polls show voters are split, with significant numbers undecided or refusing to say where they stand.

Passage would probably reinvigorate challenges to a variety of affirmative action programs in other states.

We will read the Michigan racial preference cases that triggered this initiative later this semester. Initiatives like this tend to poll under the radar, because many people fear saying they support a measure against the wishes of the ruling establishment and the shapers of what is politically correct. I think it will pass because people tend to vote their true conscience in the privacy of the voting booth. And most people do not believe that racial preferences are consistent with the promise of racial equality under the 14th Amendment.

Scalia on Judicial Independence vs. Judicial Activism

Here is an excerpt of what Hizzoner had to say:

Scalia, during a talk on the judiciary sponsored by the National Italian American Foundation, dismissed the idea of judicial independence as an absolute virtue. He noted that dozens of states, since the mid-1800s, have chosen to let citizens elect their judges.

"You talk about independence as though it is unquestionably and unqualifiably a good thing," Scalia said. "It may not be. It depends on what your courts are doing."

Scalia added, "The more your courts become policy-makers, the less sense it makes to have them entirely independent."

Here is a link to the AP article.

More on Partial Birth Abortion case

Gonzales v. Carhart: The Supreme Court Once Again Considers "Partial-Birth Abortion" by Sherry Colb is online at Findlaw.

Religious Liberty in the UK--Not!

Here is a link to an article about religious persecution directed against Muslim women by UK government officials. Here is a key excerpt:

A British government minister joined an increasingly bitter debate about the rights of Muslim women to veil their faces, saying a teaching assistant should be fired for insisting on wearing one in school.

Phil Woolas, the government's Race and Faith minister, was quoted by the Sunday Mirror newspaper as demanding that Aishah Azmi, a Muslim teaching assistant, be fired for refusing to remove her veil at work.

"She should be sacked. She has put herself in a position where she can't do her job," Woolas said.

....

The debate on the veils began earlier this month, when Jack Straw, the former foreign secretary who now serves as leader of the House of Commons, said Muslim women visiting his office should remove their veils.

Lochner and the Liberty of Consenting Adults

Notice that Lochner views Substantive Due Process as protecting the liberty of consenting adults to enter into any contract that pleases them, so long as no third party is harmed by their conduct. The decision protects the right of adults to choose--to make economic choices and to enter into economic relationships with other consenting adults.

Should laws that restrict the right of consenting adults to agree to wages, hours, rents, and other terms and conditions of their economic lives be held to violate the "liberty" protected by the Constitution? Does government have the right to impose a particular view of social justice and public morality on consenting adults who wish to enter into "unfair" or "immoral" or "unhealthy" agreements?

If you think the right of consenting adults to agree to labor on terms of their choosing is not a protected constitutional liberty, what about the liberty of consenting adults to engage in various types of sexual conduct and relationships? Should the state be allowed to regulate consensual sexual conduct under the police power--the power to pass laws to advance public health, safety, morals or the general welfare?

In other words, if you believe that the Constitution protects the "liberty of the citizen to do as he likes [in the bedroom] so long as he does not interfere with the liberty of others to do the same," (Holmes opinion at p. 520), then shouldn't adult citizens also have the right to do as they please in their economic lives? If your answer is no, why is paternalism and public morality a legitimate basis for legislation in the conference room, but not in the bedroom?

Why should we think SubstantiveDue Process protects the sexual autonomy and right of choice of adults, but not the economic autonomy and right of choice of adults? Is it because the one liberty is "fundamental" and the other is not? How do you know this? Which language or principle in the written Constitution supports your analysis?

"Moderate" Justices and Ideological Decisionmaking

Are so-called "moderate" Justices, such as O'Connor and Kennedy, less (or more) likely to engage in ideological judging? Over at the Volokh Conspiracy, Ilya Somin says perhaps more:

Indeed, in two important ways moderate jurists may be more prone to ideological judging than more extreme ones. First, moderate judges such as Justices O'Connor and Kennedy, are more likely to favor complex balancing tests than strong liberals and conservatives, who are more likely to favor bright line rules. Balancing tests tend to leave more scope for judicial discretion (and thus ideological decisionmaking) than rules do.

Second, I suspect that moderates are less likely than comparative extremists to realize that their political preferences are the products of a contestable ideology rather than of simple, nonideological "common sense." Indeed, Garrow's own article partially endorses this fallacy, to the extent that he assumes that moderate views are, by nature, less "ideological" than extreme ones. Of course, if you believe that your views are just common-sense truths that only extremist wingnuts/moonbats could disagree with, you are less likely to be hesitant about imposing them on others through the use of judicial power.

Hmmm. What do y'all think?