Bench Memos

The Meta-Nonsense of Lawrence v. Texas

The Yale Law Journal’s online Pocket Part has just published my essay, “The Meta-Nonsense of Lawrence,” which responds to Jamal Greene’s “Lawrence and the Right to Metaprivacy”.  I’ll leave the nudism part to the interested reader and just pass along these excerpts here:   

Greene maintains that the “basic conceit” in Justice Kennedy’s opinion is that “a person can himself be an idea”—or, as Greene puts it somewhat less mystically, that “a person may be so bound up with a distinctive set of normative commitments that we can no longer separate them from him.” … 

The real “conceit” in Justice Kennedy’s opinion (in the primary sense of that term) is his and his concurring colleagues’ grossly conceited conception of their role as Justices. They are re-asserting in Lawrence the authority to impose on American citizens their own arbitrary “concept[s] of existence, of meaning, of the universe, and of the mystery of human life.” What this meta-nonsense means, in other words, is that these Justices—five of whom are still on the Court—believe that they have the unconstrained discretion to trample American citizens’ right of self-governance when that right is exercised in a manner that they disfavor. Representative democracy operates only at their sufferance. That, not metaprivacy, is the real lesson of Lawrence


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