Hardwick and historiography

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 Unite d 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 d id not enjoy a constitutional protection of privacy and could be criminaliz ed by state stature. Because the Court's opinion critically relied on an or iginalist interpretation of the Constitution, Professor Eskridge reconstruc ts the history and jurisprudence of sodomy laws in the United States until the present day. He argues that the Hardwick ruling rested upon an anachron istic treatment of sodomy regulation at the time of the Fifth (1791) or Fou rteenth (1868) Amendments. Specifically, the Framers of those amendments co uld 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 assur e that sexual intimacy occur in the context of procreative marriage, an unc onstitutional basis for criminal law under the Court's privacy jurisprudenc e. In short, Professor Eskridge suggests that the Court's analysis of sodom y laws had virtually no connection with the historical understanding of eig hteenth or mid-nineteenth century regulators. Rather, the Court's analysis reflected the Justices' own preoccupation with "homosexual sodomy" and thei r own nervousness about the right of privacy previous Justices had found in the penumbras of the Constitution. The Supreme Court's problematic histori ography deepens the normative problems other scholars have identified for H ardwick and illustrates conceptual difficulties with the "original understa nding" methodology the Court sometimes deploys in constitutional cases.