* Copyright (c) 2000 by Larry Catá Backer. Executive Director, Tulsa Comparative and International Law Center and Professor of Law, University of Tulsa College of Law. J.D., Columbia University (1982); M.P.P., John F. Kennedy School of Government, Harvard University (1979); B.A., Brandeis University (1977).
1 These notions are explored in more detail from the perspective of racial equity in Larry Catá Backer, Culturally Significant Speech: Law, Courts, Society and Achieve Racial Equity, 21 U. Ark. Little Rock L.J. 845 (1999) (1999 Altheimer Symposium on Racial Equity in the 21st Century) and from the perspective of sexual non-conformity in Larry Catá Backer, Queering Theory: An Essay on the Conceit of Revolution in Law, in Legal Queeries: Lesbian, Gay and Transgender Legal Studies 185 (Leslie J. Moran et al. eds., 1998).
2 See Michel Foucault, The History of Sexuality: An Introduction 92–93 (Robert Hurley trans., Vintage Books 1990) (1976).
3 Girardeau A. Spann, Race Against the Court: The Supreme Court and Minorities in Contemporary America 19 (1995).
4 Michel Foucault, Résumé des Cours, 1970–1982 91 (1989).
5 “So, too, can we judge law aesthetically, according to the society it forms, the identities it defines, the preferences it encourages, and the subjective experience it enables. We can ‘read’ and criticize law as part of the making of a culture.” Guyor Binder and Robert Weisberg, Cultural Criticism of Law, 49 Stan. L. Rev. 1149, 1152 (1997).
6 For the story of Hezekiah, who was among the last of the obedient kings of Judah, see 2 Chron. 29:1–32:33.
7 Jezebel has assumed meta-Biblical proportions. She is part of the pantheon of our Biblical archetypes, though most of us no longer understand the origins of the story. For the original, see 1 Kings 16:31 (leading Israel to sin by worshiping Baal); 2 Kings 9:30–37 (life of treachery and ignominious death).
8 163 U.S. 537 (1896) (arguing against the affirmation of the racial separate but equal doctrine.
9 See 347 U.S. 483, 495 (1954) (rejecting constitutional protection for doctrine of separate but equal treatment of races).
10 For a description of the changes, see Michael J. Klarman, “Brown, Racial Change, and the Civil Rights Movement,” 80 Va. L. Rev. 7, 13–75 (1994).
11 Larry Catá Backer, Constructing a “Homosexual” for Constitutional Theory: Sodomy Narrative, Jurisprudence, and Antipathy in the United States and British Courts, 71 Tul. L. Rev. 529, 542 n.32 (1996).
12 See Hans-Georg Gadamer, Truth and Method 302, 305–07 (Joel Weinsheimer & Donald G. Marshall trans., 2d ed. 1989).
13 See Stanley Fish, Is There a Text in This Class? in Is There a Text in This Class? 303–04 (1980).
14 Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? 35 (1991); Larry Catá Backer, Tweaking Facts, Speaking Judgment: Judicial Transmogrification of Case Narrative as Jurisprudence in the United States and Britain, 6 S. Cal. Interdisc. L.J.611, 657 n.169, 658 n.174.
15 Spann, supra note 3, at 19 (1995); see Richard Delgado, Rodrigo’s Eleventh Chronicle: Empathy and False Empathy, 84 Cal. L. Rev. 61, 93–94 (1996); Rosenberg, supra note 14, at 35. For Professor Rosenberg, the American judicial system is constrained by its limited constitutional rights, lack of (true) judicial independence, and lack of judicial power to implement decisions. See Rosenberg, supra note 14, at 35. As such, significant social reform is possible only when there is ample legal precedent for change, where there is explicit or implicit substantial support for change within the other branches of government, and where there is general citizen support or the lack of effective citizen opposition to the change. See id. However, even when all these conditions are met, judicial social change is not possible unless there exist positive incentives for change, costs can be imposed for non-compliance, market implementation is possible, or the other branches of government are willing to implement judicially mandated reform. See id. at 35–36.
16 There is some value to the concepts inherent in “speech act theory” in this notion of identification. It is not necessarily that one makes things true simply by saying them, as J.L. Austin might suggest. See generally, e.g., J.L. Austin; How to do Things with Words (1962); John R. Searle, Speech Acts: An Essay in the Philosophy of Language (1969). In this form the notion of the significance of the attributes of judges and judicial decisions is made too independent of the norm matrix within which they operate. I believe it is more accurate to suggest that one becomes more conscious of a thing, that one heightens its reality, simply by uttering it. This is the difference between acknowledgment as a conscious act and creation as a conscious act.
17 See generally Robert Bork, The Tempting of America (1990).
18 See generally, e.g., C. Wright Mills, The Power Elite (1956) (military and business elites are the only groups effectively participating in governance); Henry S. Kariel, The Decline of American Pluralism (1961) (organized labor and management hijacked governance, capturing the agencies designed to regulate them); Grant McConnell, Private Power and American Democracy (1966) (powerful interest groups captured the administrative mechanisms of government and imposed their will on the “people”); Gabriel Kolko, The Triumph of Conservatism (1963) (the entire administrative state was designed not to regulate, but to be the means by which the “regulated” could maximize their positions in society).
19 See Margaret Wier et al., The Politics of Social Policy in the United States 4–5 (1988); see also Edward V. Sparer, The Right to Welfare, in The Rights of Americans: What They Are—What They Should Be 65–67 (Norman Dorsen ed., 1971) (“Suppose a welfare system offered an adequate grant to all those in need (with income below it), and a right to refuse work which paid less than the welfare grant. If, as a result, private business and government were forced to reorganize the economy to ensure that it provided purposeful and well-paying work, would not this be desirable?”); Edward V. Sparer, The Role of the Welfare Client’s Lawyer, 12 U.C.L.A. L. Rev. 361, 366–67 (1965).
20 See Dandridge v. Williams, 397 U.S. 471, 455–87 (1970) (rejecting argument that constitution guarantees right to welfare benefits); see generally Larry Catá Backer, Poor Relief, Welfare Paralysis, and Assimilation, 1996 Utah L. Rev. 1.
21 See Bowers v. Hardwick, 478 U.S. 186, 190–94 (1986).
22 See Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 237–39 (1995) (questioning constitutionality of federal minority set aside programs for contracts questioned and remanding for further consideration).
23 See, e.g., Spann, supra note 3, at 19. See generally Richard Delgado, Rodrigo’s Second Chronicle: The Economics and Politics of Race, 91 Mich. L. Rev. 1183 (1993).
24 347 U.S. 483 (1954).
25 “We might understand Brown as designed not to accomplish actual integration, but to establish a fundamental principle of constitutional law.” Mark Tushnet, The Significance of Brown v. Board of Education, 80 Va. L. Rev. 123, 176 (1994).
26 See generally, e.g., Bradley W. Joondeph, Missouri v. Jenkins and the De Facto Abandonment of Court-Enforced Desegregation, 71 Wash. L. Rev. 597 (1996); Kenneth T. Jackson, Crabgrass Frontier: The Suburbanization of the United States (1985).
27 410 U.S. 113 (1973).
28 The popular press is full of stories of this social regulation—strangulation—of abortion. See, e.g., Michael Remez, Abortion: The Enduring Debate, Hartford Courant, Jan. 18, 1998, at A1.
29 The “rule of law” concept, though venerated as a means of protecting people against the whims of individuals with power, has also been attacked as a falsely neutral and universal construct used by dominant society to oppress other groups. See generally Richard Delgado, Rodgrigo’s Ninth Chronicle: Race, Legal Instrumentalism, and the Rule of Law, 143 U. Pa. L. Rev. 379 (1994). The irony, of course, is that a concept bound up in the social consensus which rose up after World War II and had as its aim the reduction of individual discretion, has been attacked as a means of subordinating groups which now resist the universalism of law and demand exemption from its strictures for them (but not for those who would otherwise be bound).
30 163 U.S. 537 (1896).
31 347 U.S. 483 (1954).
32 See Pierre Bourdieu, The Force of Law: Toward a Sociology of the Juridical Field, 38 Hastings L.J. 814, 837–39 (1987).
33 Id. at 839.
34 See generally Mitchel de S.-O.-I’E. Lasser, Judicial (Self-)Portraits: Judicial Discourse in the French Legal System, 104 Yale L.J. 1325 (1995).
35 Hjalte Rasmussen, Between Self-Restraint and Activism: A Judicial Policy for the European Court, 13 Eur. L. Rev. 28, 37 (1988).
36 On the slow enforcement of priestly celibacy in the Middle Ages, see generally James A. Brundage, Law, Sex, and Christian Society in Medieval Europe (1987).
37 Indeed, social scientists sometimes use the rate of reenactment of pre-Revolutionary statutes as an indication of the continued existence and intractability of the “problems” the statutes were enacted to “correct” without considering seriously that such laws were either enforceable or did much to change social behavior. See generally Linda Martz, Poverty and Welfare in Habsburg Spain: The Example of Toledo (1983).
38 The problem of memorialization is especially acute with words first uttered in languages no longer used or now changed beyond recognition. Consider the problem of Biblical hermeneutics in the context of a long dead world the hand of which reaches to the present. This problem is especially acute with respect to text with attempts to mediate between our Greek and Semitic selves. See generally Daniel Boyarin, A Radical Jew: Paul and the Politics of Identity (1997). Even “modern” translations are prone to this effect. The King James translation of the Bible no longer reflects common English usage or the social habits that inform them. It thus becomes increasingly irrelevant because it cannot speak to the reader.
39 See generally Reuel E. Schiller, From Group Rights to Individual Liberties: Post-War Labor Law, Liberalism, and the Waning of Union Strength, 20 Berkeley J. Emp. & Lab. L. 1 (1999).
40 Id. at 15. “It also harmonized with many basic values of American democracy such as self-determination, limited government, and Madisonian liberal group pluralism.” Id. at 29.
41 See J.I. Case Co. v. NLRB, 321 U.S. 332, 341–42 (1944) (workers do not have right to advance their interests independent of the union which represents them).
42 See Steele v. Louisville N. R. Co., 323 U.S. 192, 207–08 (1944); Schiller, supra note 39, at 34–44.
43 See, e.g., Thornhill v. Alabama, 310 U.S. 88 (1940); Thomas v. Collins, 323 U.S. 516 (1945); Schiller, supra note 39, at 34–44.
44 See Schiller, supra note 39, at 75–112.
45 Richard Terdiman, Translator’s Introduction to Pierre Bourdieu, The Force of Law: Toward a Sociology of the Juridical Field, 38 Hastings L.J. 805, 809 (1987).
46 Id. at 809–10.
47 Bourdieu, supra note 32, at 840.
48 For a discussion of the way in which courts produce culture through law, and law produces culture through courts, see generally Backer, supra note 11.
49 Jean François Lyotard, On the Strength of the Weak, 3 Semiotexte 204, 205 (1978). Lyotard, of course, refers to philosophy—but what more systematic philosophy than the jurisprudence of a cohesive system of courts?
50 See id. Lyotard posits that such master narratives can be subverted through the critique within philosophical discourse of the foundationalisms of philosophy “in order to impart a stronger sense of the unpresentable.” Jean François Lyotard, The Postmodern Constitution: A Report on Knowledge 81 (1984).
51 See Lyotard, supra note 49, at 207.
52 Indeed, it has become common to construct out of Western foundationalism a master narrative which, it is asserted, is somehow imposed from the outside on willing and unwilling alike. We are all, in effect, prisoners of a totalizing world view which is neither ours nor good for us. This meta-narrative is then invested with extreme power; it is constructed as the primary source of what is perceived to be evil in the world. Consider the way master narrative is used to explain race relations among “minorities” within the United States. See generally Lisa C. Ikemoto, Traces of the Master Narrative in the Story of African American/Korean American Conflict: How We Constructed “Los Angeles,” 66 S. Cal. L. Rev. 1581 (1993) (describing tensions between the African-American and Korean-American communities in Los Angeles before the 1992 riots in the context of majority notions of race and place); Anthony E. Cook, Reflections on Postmodernism, 26 New Eng. L. Rev. 751, 754 (1992) (“Postmodern critique might be thought of as a strategy for bringing to the surface suppressed narratives and voices drowned out by the univocal projection of master narratives.”).
53 American courts also manifest this process of identification-memorialization, especially in the interpretation of our Constitution, but the process is more subtle. See generally Larry Catá Backer, Fairness as a General Principle of American Constitutional Law: Applying Extra-Constitutional Principles to Constitutional Cases in Hendrick and M.L.B., 33 Tulsa L.J. 135 (1997) [hereinafter Fairness as a General Principle].
54 Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221.
55 See generally Cossey v. United Kingdom, 13 Eur. H.R. Rep. 622 (1990); Rees v. United Kingdom, 9 Eur. H.R. Rep. 56 (1987). In Cossey, a person born male, who underwent gender reassignment surgery and lived as a woman, challenged the denial by the United Kingdom of her request to obtain both a birth certificate indicating she was female and a repeal of the legal restriction on her ability to marry a man. See 13 Eur. H.R. Rep. 622. The European Court of Human Rights held over vigorous dissent that there had been no violation of either Articles 8 or 12. See id. at 641–42. In Rees, a person born female, who underwent medical treatment and lived as a man, challenged the denial by the United Kingdom of his request to obtain a birth certificate indicating he was male. See generally 9 Eur. H.R. Rep. 56. The European Court of Human Rights held over vigorous dissent that there had been no violation of either Article 8 or 12. See id. at 68.
56 On the margin of appreciation doctrine generally, see, e.g., Pieter van Dijk, The Treatment of Homosexuals Under the European Convention on Human Rights, in Homosexuality: A European Community Issue: Essays on Lesbian and Gay Rights in European Law and Policy 179 (1993); Joxerramon Bengoetxea & Heike Jung, Towards a European Criminal Jurisprudence? The Justification of Criminal Law by the Strasbourg Court, 11 Legal Stud. 239–80 (1991).
57 Cossey, 13 Eur. H.R. Rep. at 641; Rees, 9 Eur. H.R. Rep. at 64.
58 Cossey, 13 Eur. H.R. Rep. at 642 (discussing the Article 12 challenge).
59 Id. at 641; see Rees, 9 Eur. H.R. Rep. at 68.
60 Rees, 9 Eur. H.R. Rep. at 64.
61 See Cossey, 13 Eur. H.R. Rep. 622 at 648 (Martens, J., dissenting). The “current circumstances” approach is never exact. A determination of consensus is always tentative. From this weakness, a number of criticisms of the margin of appreciation doctrine have emerged. Most of the criticisms have centered on the arbitrariness of the principle, at least in its application. See Larry Catá Backer, Inscribing Judicial Preferences into Our Fundamental Law: On the Incorporation European Principle of Margins of Appreciation as Constitutional Jurisprudence in the U.S., 7 Tulsa Comp. & Int’l L.J. (forthcoming 2000). For a discussion of the criticisms and defenses of margin of appreciation theory, see id. at n.98–106.
62 See generally Dudgeon v. United Kingdom, 4 Eur. H.R. Rep. 149 (1981); Norris v. Ireland, 13 Eur. H.R. Rep. 186 (1988); Modinos v. Cyprus, 16 Eur. H.R. Rep. 485 (1993). For a discussion of the political nature of the determination of the limitations of “human rights” in this context, see generally Backer, supra note 61.
63 See, e.g., App. No. 1307/61, 1962 Y.B. Eur. Conv. on Hum. Rts. 230, 234 (Eur. Comm’n on Human Rts.); App. No. 530/59, 1960 Y.B. Eur. Conv. on Hum. Rts. 184, 194 (Eur. Comm’n on Human Rts.); App. No. 104/55, 1955–57 Y.B. Eur. Conv. on Hum. Rts. 228, 229 (Eur. Comm’n on Human Rts.).
64 See, e.g., App. No. 5935/72, 1976 3 Eur. Comm’n H.R. Dec. & Rep. 46 (esp. 153–56) (1976). For a discussion of the cases, see, e.g., Laurence R. Helfer, Note, Finding a Consensus on Equality: The Homosexual Age of Consent and the European Convention of Human Rights, 65 N.Y.U. L. Rev. 1044, 1079 (1990).
65 See generally 13 Eur. Ct. H.R. (ser. A) (1988).
66 Id. ¶ 42.
67 Id. ¶ 44.
68 Id. ¶ 46.
69 The issues of the origin, use, and limitations of the concept “general principles of Community law” remain controversial in Europe. I do not discuss those questions here. For a general discussion of the genesis of principles of Community law, see, e.g., D. Lasok & J.W. Bridge, Law & Institutions of the European Communities 179–208 (5th ed., 1991); Nicholas Emiliou, The Principle of Proportionality in European Law: A Comparative Study 115–33 (1996); Joxerramon Bengoetxea, The Legal Reasoning of the European Court of Justice: Towards a European Jurisprudence 71–79 (1993); see generally Joseph H.H. Weiler, Eurocracy and Distrust: Some Questions Concerning the Role of the European Court of Justice in the Protection of Fundamental Human Rights Within the Legal Order of the European Communities, 61 Wash. L. Rev. 1103 (1986).
70 For the difference between general principles of law and legal doctrines, see Lasok & Bridge, supra note 69, at 179 (doctrine encompasses general propositions or guidance of a general nature).
71 Id. On the interpretive and supra-constitutional utility of principles in continental (and especially European) law, see, e.g., J. Iguartua, Sobre “Principios” y “Positivismo Legalista”, 14 Revista Vasca de la Administración Pública (1986); cf. generally Lon L. Fuller, The Morality of Law (1969). Emiliou suggests four applications of general principles in constitutional interpretation: to guide to interpretation of primary law, to guide to the exercise of power under the primary law, to provide criteria for determining the legality of acts, and to fill in gaps in primary or secondary law to prevent injustice. See Emiliou, supra note 69, at 121.
72 Neil MacCormick, Legal Reasoning and Legal Theory 236–37 (1978). Taking his cue from MacCormick, Joxerramon Bengoetxea suggests that general principles, in the form of norms, assume supra-constitutional dimension:
Political or ethical principles sometimes enter into the legal system disguised as supra-systemic principles allegedly referred to or implied by valid norms of the system or by formal interpretive consequences of these. If such principles are incorporated into the legal system, e.g. through a court decision, they might be considered as reasons guiding further decisions, for principles are regarded as general norms having an explanatory and justificatory force in relation to particular decisions or to particular rules for decisions.
Bengoetxea, supra note 69, at 75, citing MacCormick, supra, at 260.
73 There is only one reference to “general principles” in the primary law. Article 215(2) of the E.C. Treaty provides for E.C. liability in non-contractual matters, “in accordance with the general principles common to the laws of the Member States.” E.C. Treaty art. 215(2). See Jean Victor Louis, The Community Legal Order 68 (1980) (suggesting that this is a specific reference to a term of general applicability). However, the ECJ may have taken inspiration from other sources. See, e.g., Lasok & Bridge, supra note 69, at 180 (Art. 173 permits the ECJ to annul an act of the Community which infringes “the Treaty or any rule of law relating to its application.”).
74 See generally Internationale Handelsgesellschaft mbH v. Einfuhr-und Vorratsstelle fur Getreide un Futtermittel 11/70, (1970) ECR 1125, (1972) CMLR 255. In Internationale Handelsgesellschaft, the ECJ rejected the notion that the validity of Community measures could be judged by applying the fundamental or constitutional rules of any of the Member States. Instead, the ECJ suggested:
However, an examination should be made as to whether some analogous guarantee inherent in Community law has been disregarded. In fact, respect for fundamental rights has an integral part of the general principles of law protected by the Court of Justice. The protection of such rights, while inspired by the constitutional principles common to the Member-States, must be ensured within the framework of the Community’s structure and objective of the Community.
Id. at 1134.
75 See, e.g., Nold v. Commission, case 4/73 919740 ECR 491, 508 (stating that the ECJ could draw on international instruments as sources for general principles of human rights against which Community law could be measured); see also Weiler, supra note 69, at 1113–21. Weiler notes that there will be an element of constitutional politics at play in the crafting of this general principle of Community law; the incorporation of fundamental human rights into the Community legal order might be characterized as “an attempt to protect the concept of supremacy which was threatened because of the inadequate protection of human rights in the original Treaty system.” See id. at 1119.
76 Equality of treatment has been deduced from a small number of provisions in the E.C. Treaty that proscribe discrimination on the basis of nationality (art. 7), sex (art. 119) and production (art. 40(3)). It has been applied to great effect in the area of gender equality. Council Directive 75/117, 1975 O.J. (L.45/19) (the Equal Pay Directive); Council Directive 76/207, 19 O.J. (L.39)40 (1976) (Equal Treatment Directive).
Perhaps EU law has been as successful as possible in creating equality within a society where men have traditionally dominated the best paying and most rewarding jobs, and have had more status than women. Women within the EU will now strive to challenge their historical role, knowing they have the Equal Pay and Equal Treatment Directives behind them in support of their efforts to obtain more prestigious and better paying jobs.
Elena Noel, Prevention of Gender Discrimination Within the European Union, 9 N.Y. Int’l. L. Rev. 77, 91–92 (1996); see generally, Ruth A. Harvey, Equal Treatment of Men and Women in the Work Place: The Implementation of the European Community’s Equal Treatment Legislation in the Federal Republic of Germany, 38 Am. J. Comp. L. 31 (1990).
Principles derived from continental law include the principle of proportionality, which is akin to U.S. notions of the interpretive constitutional doctrine of “least restrictive means.” See, e.g., Emiliou, supra note 69, at 115–33
77 “I hope to demonstrate that a cross-fertilization process is well underway, one that ultimately may lead to more harmonization of the law in . . . human rights areas.” Richard B. Lillich, Harmonizing Human Rights Law Nationally and Internationally: The Death Row Phenomenon as a Case Study, 40 St. Louis U. L.J. 699, 702 (1996) (footnotes omitted) (arguing for the need for the harmonization of international human rights law). Note, however, that recent voices have begun to sense that there is a “declining consensus on the role that the system established by the European Convention plays for the protection of human rights.” Giorgio Gaja, Case Law: Court of Justice, Opinion 2/94, Accession by the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms, 33 Common Mkt. L. Rev. 973, 989 (1996).
78 Case C-13/94, 2 C.M.L.R. 247 (1996).
79 Southampton Indust. Tribunal, Case C-249/96, (1998) All ER (EC) 193.
80 See Cornwall County Council, Case C-13/94, 2 C.M.L.R. at 247; Grant, Case C-249/96 at 193.
81 See Cornwall County Council, Case C-13/94, 2 C.M.L.R. at 263.
82 Id. at 262, 263.
83 Id. at 262–63.
84 Cornwall County Council, Case C-13/94, 2 C.M.L.R. at 262–63.
85 Id.
86 Grant, Tribunal, Case C-249/96 at ¶ 28 (emphasis added).
87 Cornwall County Council, Case C-13/94, 2 C.M.L.R. at ¶ 21 (emphasis added). The Grant court was not unaware of the distinct use of language. See Grant, Tribunal, Case C-249/96 at ¶ 42. However, the court implied that the difference in focus was the result of the difference in discrimination—orientation in Grant, gender in Cornwall County Council.
88 See Grant, Tribunal, Case C-249/96 at ¶ 31.
89 See id. at ¶ 32.
90 See id. at ¶ 33 (citing a number of ECHR cases, including X v. UK (1983) 32 D & R 220, S v. UK (1986) D & R 274, B v. UK (1990) 64 D & R 278).
91 See id. at ¶ 34 (citing Cossey v. United Kingdom, 13 Eur. H.R. Rep. 622 (1990); Rees v. United Kingdom, 9 Eur. H.R. Rep. 56 (1987)).
92 See id. at ¶¶ 43–47. Thus, the reading of the International Covenant on Civil and Political Rights (New York, 16 December 1966; TS 6 (1977); Cmnd 6702) by the Human Rights Committee, established to interpret its provisions that sex includes sexual orientation, was dismissed as irrelevant because Article 119 was limited to “sex” and because the opinions of the Human Rights Committee ought not be accorded much dignity. See id. Rather, Article 119 must be read solely within the four corners of the Community Treaties. See id.
Of course the ECJ could not have meant what it said. To do so would be to retreat from twenty years of interpretation of the scope and means of incorporating the principles of human rights within the Treaty framework. Instead, the ECJ was inartfully suggesting in the context of the transposition of human rights into the Community Treaties, the limitation of Member State consensus. Since no European body had assented to this expansive reading of the rights of sexual minorities, and since the common practices of the people of the Member States did not show a patten or practice of acceptance of the state of affairs sought by Ms. Grant, then the ECJ was in no position to impose that social norm.
93 O.J. 1997 C340.
94 See Grant, Tribunal, Case C-249/96 at ¶ 48.
95 478 U.S. 186 (1986); see Larry Catá Backer, Reading Entrails: Romer, VMI and the Art of Diving Equal Protection, 32 Tulsa L.J. 361, 385–88 (1997).
96 See generally Fairness as a General Principle, supra note 53. For example, consider Romer v. Evans, 517 U.S. 620 (1996), from the analytical perspective of the European Union. In Romer, the U.S. Supreme Court held that an amendment to the Colorado state constitution violated the Equal Protection Clause of the federal Constitution. Id. at 635–36. The amendment, through a statewide voter referendum, precluded all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their “homosexual, lesbian or bisexual orientation, conduct, practices or relationships.” Id. at 624. Colorado has the legislative authority to amend its constitution by popular referendum. See id. at 623. However, general principles of Constitutional law foreclosed the use of that power in ways that violated the harmonizing norms of the principle of “equal protection.” For a discussion of Romer, see Backer, supra note 95, at 376–88.
97 Harry S. Truman, 2 Memoirs (1956) 476. The Supreme Court decision Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), involved the powers of the President under the federal Constitution and produced opinions by six justices.
98 President Truman, in his memoirs, thus complained of the decision:
I would, of course, never conceal the fact that the Supreme Court’s decision, announced on June 2, was a deep disappointment to me. . . . I am not a lawyer, and I leave the legal arguments to others. But as a layman, as an official of the government, and as a citizen, I have always found it difficult to understand how the Court could take the affidavits of . . . all who testified in great detail to the grave dangers that a steel shutdown would bring to the nation . . . and ignore them entirely. I could not help but wonder what the decision would have been had there been on the Court a Holmes, a Hughes, a Brandeis, a Stone.
Truman, supra note 97, at 476.
99 Gal. 3:26. Indeed Christian theologians and commentators have understood the power of the divine to provide an arguably neutral site for the mediation of social disputes and to provide a point of fundamentalist stability to the way society approaches such questions. “The Christian God has been a breaker of barriers from the first. All who have a distinctively Christian experience of God are committed to the expansion of human fellowship and to the overthrow of barriers.” Walter Rauschenbusch, A Theology for the Social Gospel 186–87 (1917).
100 Thus, for example, in U.S. v. Virginia, 518 U.S. 515 (1996), a dissenting Justice Scalia scolded his colleagues for their constitutionalization of proscriptions of previously lawful single-sex state-supported educational institutions: “The people may decide to change the one tradition, like the other, through democratic processes; but the assertion that either tradition has been unconstitutional through the centuries is not law, but politics-smuggled-into-law.” Id. at 569 (Scalia, J. dissenting); see also Lee v. Weisman, 505 U.S. 577, 597 (1992) (religious invocations at school ceremonies prohibited under First Amendment). In Lee v. Weisman, Justice Scalia in dissent scolded the majority for a decision based on their “changeable philosophical predilections.” Id. at 632 (Scalia, J., dissenting). On occasion, though, Justice Scalia is able to weave his own “changeable philosophical predilection” into the fabric of the constitutional jurisprudence of the Court itself. See Employment Div., Dep’t of Human Resources v. Smith, 494 U.S. 872, 890 (1990) (examining the use of peyote in ceremonial, native religious practice).
101 Sophocles, Œdipus the King, in The Complete Plays of Sophocles 77, 84 (Sir Richard Claverhouse Jebb, trans., Bantam Books, 1982).
102 “Tunc etiam fatis aperit Cassandra futuris ora dei iussu non umquam credita Teucris. Nos deluba deum miseri, quibus ultimus esset ille dies, festa valmus fronde per urbem.” [“Then to cap all, Cassandra opened her mouth for prophecy—she whom her god had doomed never to be believed by the Trojans. But we poor fools, whose very last day it was, festooned the shrines of the gods with holiday foliage all over the city.”], Vergil, The Aenid 42, Book II, lines 246–49 (C. Day Lewis, trans., Doubleday Anchor Books 1953) (19 B.C.).
103 Psalms 44:10; 44:25.
104 The Homeric voice I describe here has a Germanic counterpart, the saga society which existed among pre-Christian Germanic peoples. For an interesting view, see William Ian Miller, Bloodtaking and Peacemaking: Feud, Law, and Society in Saga Iceland (U. Chi. Press 1990). For a perceptive commentary on Miller’s work, see generally Richard A. Posner, Medieval Iceland and Modern Legal Scholarship, 90 Mich. L. Rev. 1495 (1990).
105 Recall that both the Odyssey and the Iliad began as oral works, and they were not reduced to writing until at least the sixth century B.C. Richard Lattimore, Foreword, in Homer, The Iliad of Homer 13 (Richard Lattimore trans., U.Chi. Press 1951).
106 517 U.S. 620 (1996).
107 Backer, supra note 95, at 384–85. In a recently published article, Michael Mannheimer refers generally to the Equal Protection Clause’s “equal citizenship principle.” See Michael J. Mannheimer, Equal Protection Principles and the Establishment Clause: Equal Participation in the Community as the Central Link, 69 Temple L. Rev. 95, 114–17 (1996).
108 Backer, supra note 95, at 384 (citing Romer v. Evans, 517 U.S. 620, 631 (1996)). Justice Scalia, in dissent, had a far narrower view of what sort of political participation would be enough. Homosexual political advances are subject “to being countered by lawful, democratic countermeasures as well,” including “the democratic adoption of provisions in state constitutions.” Romer, 517 U.S. at 646, 647 (Scalia, J., dissenting). The problem, of course, as the majority saw, and as Justice Scalia’s ideology could not fathom, is that our popular political culture does not permit the use of the democratic process to push any participant out of the game. And that is what the amendment at issue in Romer effectively did. The Justices spent some time considering this point at oral argument where the issue was crystallized. See Official Transcript of Oral Argument, Oct. 10, 1995, at 51–56, Romer v. Evans, 517 U.S. 620 (No. 94-1039) [hereinafter Romer Oral Argument], available in 1995 WL 605822. As Jean E. Dubofsky argued on behalf of respondents, the question was whether the referendum process constituted a prohibited “restructuring of the political process.” Id. at 51.
109 Backer, supra note 95, at 384. This characterization was especially true at oral argument. Thus, for instance, Justice Ginsburg drew analogies to the political give and take of the suffragists at the turn of the twentieth century. See Romer Oral Argument, supra note 109, at 14 (“I was trying to think of something comparable to this, and what occurred to me is that this political means of going at the local level first is familiar in American politics.”).
110 Backer, supra note 95, at 384 (citing Romer, 517 U.S. at 634–35). “It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance.” Romer, 517 U.S. at 634.
111 “Lacking any cases to establish that facially absurd proposition [of the sort of statewide constitutional amendment through referendum at issue in the case], it simply asserts that it must be unconstitutional, because it has never happened before.” Romer, 517 U.S. at 647 (Scalia, J., dissenting) (emphasis added). That is precisely the point. Tradition militates against this sort of fundamental wrenching of political culture in the absence of evidence of a substantial amount of acceptance of these rules in fact.
112 “The Court today . . . employs a constitutional theory heretofore unknown to frustrate Colorado’s reasonable effort to preserve traditional American moral values.” Id. at 651. Indeed, the essence of Justice Scalia’s textualist project is essentially Homeric—the retelling of law as it was heard the first time. “But the Great Divide with regard to constitutional interpretation is not that between Framers’ intent and objective meaning, but rather that between original meaning (whether derived from Framers’ intent or not) and current meaning.” Antonin Scalia, Common-Law Courts in a Civil Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law 3, 38 (Amy Gutmann ed., 1997).
113 See The Federalist Nos. 10, 39, 63 (Alexander Hamilton).
114 Dandridge v. Williams, 397 U.S. 471, 484 (1970).
115 Southampton Indust. Tribunal, Case C-249/96, (1998) All ER (EC) 193.
116 See generally id. For a discussion of the rationale of the Grant court, see supra Part II.B.
117 House of Lords, (1994) 1 AC 212, (1993) 2 All ER 75, 124 (1993) 2 WLR 556, 157 JP 337, 97 Cr App Rep 44, 11 March 1993 (adult males who engaged in various same sex sado-masochistic activities with much younger men convicted of keeping a disorderly house, and of assault occasioning actual bodily harm and wounding, contrary to the Offenses Against the Person Act of 1861, §§ 47 and 20, respectively; the House of Lords, by a 3 to 2 split, determined that consent in such cases could not be a defense to the charge). This case substantially restated the law in this area and has resulted in a tremendous amount of commentary. See generally, e.g., The Law Commission, Consultation Paper No. 134, Criminal Law: Consent and Offenses Against the Person (1994) (U.K.); Carl F. Stychin, Unmanly Diversions: The Construction of the Homosexual Body (Politic) in English Law, 32 Osgoode Hall L. Rev. 503 (1994).
118 See Backer, supra note 11, at 594. On the construction of the “sado-masochistic homosexual” by the House of Lords opinions, see Sangeetha Chandra-Shekeran, Critique and Comment: Theorising the Limits of the “Sadomasochistic Homosexual” Identity in R. v. Brown, 21 Melbourne U. L. Rev. 584 (1997). The “problem” of conduct and sex, that is, of defining and redefining conduct as sexual for purposes of regulating “sex” or conduct outside of sex, see Nicola Lacey, Unspeakable Subjects, Impossible Rights: Sexuality, Integrity and Criminal Law, 11 Can. J. L. & Jur. 47 (1998). This “problem” has proven pivotal in the investigation of the criminal activities of President Clinton. If what the President is described as doing is not considered “sex” by him, then it might well be hard to prove that he perjured himself, whatever Prosecutor Starr says falls within the definition of sexual activity.
119 For an American critique of the decision as bad common law, see generally Brian Bix, Consent, Sado-Masochism and the English Common Law, 17 Quinnipiac L. Rev. 157 (1997). On the problem of sex as object and descriptor, see generally Judith Butler, Bodies that Matter: On the Discursive Limits of Sex (1993). On the general context of (homo)sexual discourse in law, and its relationship to social norm(ality), see generally Leslie J. Moran, The (Homo)sexuality of Law (1996).
120 The ECHR was willing to concede that the activity was sex, but also shared a common view that this sort of sex was dangerous and revolting. See Brown, House of Lords, (1994) 1 AC 212, (1993) 2 All ER 75, 124 (1993) 2 WLR 556, 157 JP 337, 97 Cr App Rep 44, 11 March 1993. Moreover, it fell outside even the limits of toleration which Europeans had crafted for “normal” homosexual activity in cases like Norris v. Ireland, 13 Eur. Ct. H.R. (ser. A) No. 142 (1988). Instead, Brown centered on an orgy in which the participants included men barely old enough to legally consent, if that. More than one socio-cultural taboo was trampled in that case. It is no wonder that the ECHR chose the easy route there.
121 See, e.g., Backer, note 11, at 594; see generally Stychin, supra note 117.
122 This was the essence of the ECHR judgement. No nation/people really likes sado-masochistic conduct. No nation/people officially permits such conduct as specified in the Brown case. No nation/people fails to enforce the laws against such practices. Consequently, the ECHR could use Brown to construct the reverse mirror image of Norris.
123 See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 899 (1992).
124 See, e.g., Susan M. Halatyn, Note and Comment, Sandra Day O’Connor, Abortion and Compromise for the Court, 5 Touro L. Rev. 327, 331 (1989) (recounting testimony at Justice O’Connor’s confirmation hearings).
125 255 N.Y. 170, 174 N.E. 441 (1931) (action for damages against accountant for negligent misrepresentation). Justice Cardozo begins the analysis of this famous opinion thusly: “The assault upon the citadel of privity is proceeding in these days apace. How far the inroads shall extend is now a favorite subject of juridical discourse.” Id., 255 N.Y. at 180, 174 N.E. at 445.
126 See 410 U.S. 113, 164–65 (1973).
127 See 347 U.S. 483, 495–96 (1954). Even this long after the decision in Brown, legal academics continue to argue over the significance of the decision. Yet, though then is great disagreement over the nature of the significance of the decision and its cultural effects after its rendering, there is little disagreement that the Brown court sought to articulate the parameters of a changed social landscape. An excellent articulation of these different views of Brown’s significance can be found in Vol. 80, No. 1 of the Virginia Law Review. See Klarman, supra note 10; David J. Garrow, Hopelessly Hololow History: Revisionist Devaluing of Brown v. Board of Education, 80 Va. L. Rev. 151 (1994); Gerald N. Rosenberg, Brown Is Dead! Long Live Brown!: The Endless Attempt to Canonize a Case, 80 Va. L. Rev. 161 (1994); Mark Tushnet, The Significance of Brown v. Board of Education, 80 Va. L. Rev. 173 (1994).
128 See Fuentes v. Shevin, 407 U.S. 67, 96 (1972).
129 See Sniadach v. Family Finance Corp. of Bay View, 395 U.S. 337, 343–44 (1969) (pre-judgement garnishment of wages); Goldberg v. Kelly, 397 U.S. 254, 271 (1970) (deprivation of welfare benefits). Justice Brennan explores the interest of the recipient in the stream of payments the state is obligated to provide to the eligible, much the way one would look at a retirement annuity for a retired person, or the wages of a poor worker. The reference, quite conscious, is to Sniadach. At the end of the analysis is Justice Brennan’s conclusion that the consequences of erroneous deprivation is great: “His need to concentrate upon finding the means for daily subsistence, in turn, adversely affects his ability to seek redress from the welfare bureaucracy.” Goldberg v. Kelly, 397 U.S. at 264.
130 See Mitchell v. W.T. Grant Co., 416 U.S. 600, 619–20 (1974); North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 619 (1975); Connecticut v. Doehr, 501 U.S. 1, 22 (1991).
131 See, e.g., Defrenne v. Sabena (1976) ECR 455; Chris Docksey, The Principles of Equality Between Women and Men as a Fundamental Right Under Community Law, 20 Indus. L.J. 258–80 (1991).
132 Bengoetxea & Jung, supra note 56, at 239.
133 The best aural/visual image of this is the famous debate scene between the Jewish scholars in Strauss’ opera, Salome. Hedwig Lachmann, Salome (music by Richard Strauss, Dresden, 1905) (based on the play by Oscar Wilde (orig. in French)), Scene 4a (Jews and Nazarenes) [hereinafter Salome].
134 See generally Job.
135 Id. at 5:17.
136 Id. at 8:3.
137 Id. at 11:11.
138 Id. at 38:4.
139 Job at 40:8–9.
140 Salome, supra note 133. The legal question facing Herod was the jurisdiction of Jewish Church officials, and whether the Church had authority over John the Baptist. Five doctors of Jewish law come to make their case before Herod:
First Jewish Official: Truly, my lord, it were better to deliver him into our hands.
Herod: Enough of this! I will not deliver him into your hands. He is a holy man. He is a man who has seen God.
First Jewish Official: That cannot be. Since the prophet Elias no man has seen God. He was the last man who has seen God face to face. In these our days God doth not show himself. God Hideth himself. Therefore great evils have come upon the country, great evil.
Second Jewish Official: Verily, no man doth know if Elias indeed saw God. Per adventure it was but the shadow of God the he saw.
Third Jewish Official: God is at no time hidden. He showed himself at all times and in all places. God is in what is evil even as He is in what is good.
Fourth Jewish Official: Thou shouldst not say that, it is a very dangerous doctrine that cometh from Alexandria. And the Greeks are Gentiles.
Fifth Jewish Official: Thou speakest truly. O yes, God is terrible. But as for this man, he hath never seen God. Since the prophet Elias no man has seen God.
Id. And so we begin again, through another set or perambulations, this time speaking simultaneously, until in frustration, Herodias commands them to be still and the Nazarenes provide yet another view.
141 See generally Stanley Fish, There’s No Such Thing as Free Speech and It’s a Good Thing, Too (1994).
142 See Job 4:7–8; 5:3, 27.
143 See id. at 8:8–9; 18:5–21.
144 See id. at 11:6; 20:1–29.
145 Id. at 36:3–4.
146 See Helfer, supra note 64, at 1059, 1059 n.105.
147 Justice Scalia’s observation in Oncale v. Sundower Offshore Services, Inc. is most pertinent here: “The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.” 523 U.S. 75, 82 (1998) (finding same-sex sexual harassment cognizable under statute at issue and rejecting blanket rule excluding this form of harassment from statute).
148 See 478 U.S. 186, 196 (1986).
149 See generally Romer v. Evans, 517 U.S. 620 (1996); Backer, supra note 95, at 384–85.
150 515 U.S. 200 (1995) (examining constitutionality of federal minority set aside programs for contracts).
151 Id. at 202.
152 Id.
153 At least one current member of the Supreme Court, Ruth Bader Ginsburg, when she was sitting on the D.C. Circuit Court of Appeals, expressed some tentative criticism of multiple opinions, if only when a justice is moved to write for the “wrong” reasons. Among the “wrong” reasons identified, following Richard Posner, were to register a minor reservation, suggest an additional reason for the result, criticize a dissenting opinion, or set out the writer’s own interpretation of a majority opinion. Ruth Bader Ginsburg, Remarks on Writing Separately, 65 Wash. L. Rev. 133, 149 (1990) (citing, in part, Richard Posner, The Federal Courts: Crisis and Reform 233, 239–41 (1985)). However, Ginsburg notes, “Hard cases do not inevitably make bad law, but too often they produce multiple opinions.” Id. at 148 (citing in part Posner, supra, 233, 239–41). The result of opinion proliferation, for then Judge Ginsburg, would be a movement “toward the Law Lords’ pattern of seriatim opinions, each carrying equal weight, and under which ‘the English lawyer has often to pick his way through as many as five judgements to find the highest common factor binding on the lower courts.’” Id. at 149 (citing, in part, L. Blom-Cooper & G. Drewry, Final Appeal: A Study of the House of Lords in Its Judicial Capacity 90, 523 (1972)).
For an academic critique of multiple opinions, see, e.g., Paul M. Bator, What is Wrong with the Supreme Court, 51 U. Pitt. L. Rev. 673, 686 (1990). Bator states:
Most important and most distressing is that they are addicted, too, to the multiplication of individual opinions. Nobody seems to take seriously the notion that the Court should try very hard to speak with a single intelligible voice. The endless proliferation of independent opinions is, in my opinion and with all due respect, a disgrace. . . . And the sad result is that, all too often, when the Supreme Court decides a case, instability and uncertainty and confusion are not alleviated, but, rather, reinforced.
Id.
154 The same result is observable in cases such as Roe v. Wade, 410 U.S. 113 (1973), and Bowers v. Hardwick, 478 U.S. 186 (1986). In each case, society took the juridical voices for Jobian disputation. What followed in each case was constant retesting of the norms affirmed in each case. Roe v. Wade has almost thirty years of juridical and legislative attacks at the federal level. Bowers v. Hardwick has seen the same level of attack, but with a strong focus on the states and state normative law making.
155 See generally Grant v. South-West Trains, Ltd., Southampton Indust. Tribunal, Case C-249/96, (1998) All ER (EC) 193.
156 The ECJ chose not to adopt the advocate general’s aggressive approach to the coverage of the fundamental principle of equality articulated in Cornwall County Council, nor the actual advocate general opinion in Grant, itself. For a discussion of the advocate general’s opinion in Cornwall County Council, see generally Larry Catá Backer, Harmonization, Subsidiarity and Cultural Difference: An Essay on the Dynamics of Opposition Within Federative and International Legal Systems, 4 Tulsa J. Comp. & Int’l L. 185 (1997). For an American’s description of the advocate general’s opinion in Grant, see generally, e.g., Paul L. Spackman, Note & Comment, Grant v. South-West Trains: Equality for Same-Sex Partners in the European Community, 12 Am. U. J. Int’l L. & Pol’y 1063 (1997).
157 For a perceptive analysis, see generally Stychin, supra note 117.
158 The divergent opinions in Brown plainly attest to the uncertainty of the pronouncement. One might even argue that the need to “restate” the law and to devote a substantial amount of space to proof of the verities of the revision is strong evidence of the sense that “someone” needs convincing.
159 Isaiah 1, 25–26. “Thy princes are rebellious, and companions of thieves; Every one loveth bribes, and followeth after rewards; they judge not the fatherless, Neither doth the cause of the widow come unto them.” Isaiah 1:23. Isaiah lived during the time of the destruction of the Kingdom of Israel by the Assyrians in 721 B.C. Samuel Sandmel, The Hebrew Scriptures 83–84 (1978). For a standard history of Ancient Israel, see H.M. Orlinsky, Ancient Israel (1960). For a study of the historical value of the Bible, see generally Sandmel, supra, passim.
160 Id. at 1:25–26.
161 A passage from Jeremiah states:
Thou therefore gird up thy loins, and arise, and speak unto them all that I command thee; be not dismayed at them, lest I dismay thee before them. For, behold, I have made thee this day a fortified city, and an iron pillar, and brazen walls, against the whole land, against the kings of Judah, against the princes thereof, and against the people of the land. And they shall fight against thee; but they shall not prevail against thee; For I am with thee, saith the Lord, to deliver thee.
Jeremiah 1:17–19. Jeremiah lived through the final religious revival of the Kingdom of Israel immediately before its destruction by Babylon in 586 B.C. This period witnessed significant international convulsions, e.g., the fall of Assyria and the rise of Babylon and Egypt. See Sandmel, supra note 159, at 139–40.
162 Ezekiel 22:15–16. Ezekiel, the protégé of Jeremiah, was among those carried off into exile in Babylonia after the destruction of the Kingdom of Judea in 586 B.C. See Sandmel, supra note 159, at 160.
163 See Genesis 18:32.
164 “Learn to do well; seek justice, relieve the oppressed, Judge the fatherless, plead for the widow.” Isaiah 1:17.
165 A careful reading of Prophets highlights this point. Each spoke of the catastrophe waiting for Israel for its social intransigence. This point is made explicit in Chronicles. One example will suffice:
And Manesseh made Judah and the inhabitants of Jerusalem to err, so that they did evil more than did the nations whom the Lord destroyed before the children of Israel. And the Lord spoke to Manesseh, and to his people; but they gave no heed. Wherefore the Lord brought upon them the captains of the host of the king of Assyria, who took Manesseh with hooks and bound him with fetters, and carried him to Babylon.
2 Chron. 33:9–10.
166 See generally Jules Lobel, Losers, Fools & Prophets: Justice as Struggle, 80 Cornell L. Rev. 1331 (1995).
167 Id. at 1333. Certainly, at a minimum, such cases begin the long and painful process of educating judges about the existence of alternative realities. See, e.g., Campbell v. Sundquist, 926 S.W. 2d 250, 266 (Tenn. App. 1996) (finding state Homosexual Practices Act in violation of state constitution and describing argument propounded by state in support of continued criminalization of private sexual conduct between people of same sex). Justice Sears’ dissent in Christensen v. State, 468 S.E.2d 188, 191 (Ga. 1996) is also instructive.
168 See generally, e.g., Michael J. Klarman, supra note 10. Professor Klarman notes:
There exists a widespread tendency to treat Brown as the inaugural event of the modern civil rights movement. Nothing could be further from the truth. The reason the Supreme Court could unanimously invalidate public school segregation in 1954, while unanimously declining to do so just twenty-seven years earlier was that deep seated social, political, and economic forces had already begun to undermine traditional American racial attitudes.
Id. at 13–14; see also id. at 13–75 (describing the socio-cultural changes preceding Brown).
169 See Panu Minkkinen, The Juridical Matrix, 6 Social & Legal Studies 425, 433–36 (1997).
170 See id. at 441.
171 Leslie Moran has argued eloquently about the relationship of juridical and legislative speech to the articulation of a constructed “homosexual” body. See generally Leslie J. Moran, The Homosexual(ity) of Law (London: Routledge 1996). Indeed, the articulation of the body serves also as the identification and coalescing of a common social norm.
172 I will contrast the notion of interpretive mistake with the notion of violation of basic behavioral taboos. While the ambit of interpretation may be wide, there are, within any temporal expression of popular culture, interpretations so basically “off” that they violate the taboo and are beyond the pale of interpretation. On the matrix of the interpretively possible and that which lies beyond, see Backer, supra note 11, at 16–18.
173 For an interesting example, involving the litigation over the identity of the Mashpee Tribe, see Guyora Binder & Robert Weisberg, Cultural Criticism of Law, 49 Stan. L. Rev. 1149, 1180–87 (1997).
174 For a discussion of the way in which culture talks publicly and privately, to different effect, see generally Larry Catá Backer, Exposing the Perversions of Toleration: The Decriminalization of Private Sexual Conduct, the Model Penal Code, and the Oxymoron of Liberal Toleration, 45 Fla. L. Rev. 755 (1993).
175 What applies to modern scholarship applies with even more force to the nature of the voice of judicial authority: “Thus, to a certain degree, critical theorists can sometimes fall into the very old Marxist-Leninist trap: it is one thing to identify racism and patriarchy (just as it was to identify capitalism) as an evil; it is quite another to assume or argue that it inevitably follows that naming the evil will result in its destruction or transmorgrification. It is error to assume that something like the normative substructure of our law and society is weak, unsupported, decrepit, decadent, or inevitably (and quickly) doomed to oblivion, only to be replaced by a new world order.” Larry Catá Backer, By Hook or By Crook: Conformity, Assimilation and Liberal and Conservative Poor Relief Theory, 7 Hastings Women’s L.J. 391, 434–35 (1996).