Author Interview: Dale Carpenter on 'Flagrant Conduct: The Story of Lawrence v. Texas'

Speaking at a book forum sponsored by the Cato Institute on March 16, 2012, Washington Post editorial writer (and former Supreme Court reporter) Charles Lane said the “true importance” of the 2003 high court decision in Lawrence v. Texas “is as a cultural milestone” and that it reflected how the country’s “zeitgeist had radically shifted since 1986,” the year of Bowers v. Hardwick, a decision that upheld Georgia’s sodomy law and which was overturned by Lawrence 17 years later.

Lane was responding to comments by University of Minnesota law professor Dale Carpenter, who was presenting his new book, Flagrant Conduct: The Story of Lawrence v. Texas. For his own part, Carpenter compared the Lawrence decision, in its effect on the lives of gay and lesbian Americans, to Brown v. Board of Education and its effect on African-Americans and race relations.

After his presentation, Carpenter talked to me about his book, what he learned in his research, and the larger impact of the Supreme Court’s decision now and in the future.

Carpenter, who teaches courses in constitutional law and sexual orientation and the law, began writing Flagrant Conduct more than eight years ago. Its first form was an article for the Michigan Law Review (which he describes as “a microcosm of this book”) that ended up in the hands of a senior editor at W.W. Norton and Company, who suggested he turn the article into a book and eventually published it.

Dale Carpenter

Writing the book required “quite a bit of legwork and research,” including dozens of interviews with people involved with the case, from the officers who arrested John Lawrence (whose name is in the case title) and Tyron Garner to law clerks and prosecuting attorneys, gay-rights activists in Texas, and, finally, Lawrence himself, who granted Carpenter his only interview about the case and its circumstances, just six months before he died.

Their meeting, Carpenter said, “was emotional.”

U.S. Navy veteran Lawrence, he explained, “never got a trial. He never got to talk about his side. He never got to tell his story and” talking to Carpenter “was his chance finally to tell his story when he knew he was in poor health and would not live long.”


No sex, please

The most startling finding from Carpenter’s research was that, contrary to the long-assumed facts of the case, Lawrence and Garner were not having sex when they were arrested on September 17, 1998 – a date, Carpenter pointed out, that Americans mark as Constitution Day.

Though they were not having sex, Carpenter said, “the police nevertheless arrested them and hauled them off to jail.”

That arrest set off a chain of events that eventually led to the Supreme Court’s historic decision, written by Justice Anthony Kennedy with a strong dissent by Justice Anton Scalia and another, extremely brief dissent by Justice Clarence Thomas, who pronounced the law “silly” and said if he were a legislator, he would vote to repeal it.

That Lawrence and Garner were not engaged in a sex act – and thus violating the Texas “Homosexual Conduct Law” – “was not widely known anywhere” and that information was first revealed by Carpenter in his 2004 Michigan Law Review article but, he noted modestly, “it is becoming more widely known now because of the book.”

The law that Lawrence was arrested under enabled police officials – in this particular case, the Harris County sheriff’s department – “to use their authority in an abusive and arbitrary way,” and, by overturning the Texas sodomy law and other, similar laws on the books in other states, the Supreme Court limited that form of police misconduct.

“The larger impact” of the Lawrence ruling, Carpenter explained, “ was getting rid of a precedent that wreaked havoc in the lives of gay men and lesbians in every area of life from family law to the military to relationship recognition, denying them their children, housing, employment, and everything else that we expect” as American citizens.

“The other legacy of this case,” he added, “may be yet to come in the form of more formal recognition of same-sex relationships and protection for families headed by same-sex couples. “

That, he concluded, “we’ll have to see.”

Adapted from an earlier article on Examiner.com.

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Author Interview: Richard Epstein on his new book, ‘Design for Liberty’

Already well-known for such works as Principles For A Free Society: Reconciling Individual Liberty With The Common Good, How Progressives Rewrote the Constitution, and a widely used legal textbook on torts, New York University law professor Richard A. Epstein has just published Design for Liberty: Private Property, Public Administration, and the Rule of Law (Harvard University Press, 2011).

At a recent Cato Institute event, Professor Epstein spoke to me about his new book and his next project, a book about classical liberalism and constitutional law.

Design for Liberty, he said, differs from his previous books in that “it’s a little bit more philosophical. It spends much more time talking directly about public administration, which I have not talked about much in previous books.”

Moreover, Epstein added, it reflects his “newfound interest in public administrative law, which is usually missing from the earlier works, and of course, it has material which I could never have covered earlier because things like the Dodd-Frank [banking] statute and the current health-care bill are creatures of the last year or so and therefore I never spoke about them before.”

First and second order rules
Digging further beneath the surface, Epstein pointed out that his new book contains “a fairly detailed explanation of first and second order rules, a sort of technical subject,” which involves the question of “when is it that you have to have to resort to reasonableness rules?”

Richard Epstein

That happens, he said, when “it turns out that hard-line rules don’t work and what you have to do in order to make the rule of law work is to understand that the mere fact that there’s a reasonableness in some legal system doesn’t disqualify from the rule of the law.”

“On the other hand,” he argued, “you can’t let reasonableness determinations overwhelm the whole system, so I try to develop protocols to how it is that you separate those things.”

Epstein’s next project will be what he describes as “a very long book” with the working title “The Classical Liberal Constitution.”

That book, he said, is “about 90 percent done.”

Progressive vs. classical liberal
In it, Epstein “takes the fundamental insights that I’ve developed over the years and basically gives a comprehensive analysis of every major constitutional area with a hell of a lot of compression, but it starts with basic theories of constitutional interpretation. It talks about the conflict between the progressive and the classical liberal visions. Those,” he said, “are things I’ve talked about before.”

Epstein’s forthcoming book “goes through systematically the judicial, the executive, and legislative branches, and then does all the various threads of individual rights, each getting a chapter.”

Unlike Design for Liberty, “which is slim,” The Classical Liberal Constitution “will be fat,” he said, with a likely publication date in late 2012 or early 2013.

“It’s been a book that’s been in the making for many years now,” Epstein explained. “It’s an effort to give a comprehensive way in which, if you take the positions that I do, various cases and various issues have to come out.”

The Classical Liberal Constitution will have “some stuff on takings, but that’s not the main focus on it. It has things on freedom of religion and executive power and foreign affairs and so forth.”

Epstein concedes that his “knowledge base is not uniform across all these areas but what makes it possible to do this project is that the Supreme Court doctrine generally tends to be comprised in a relatively few key cases.”

Consequently, “if you have a strong theory, and you pick the right cases to read, you can write the kind of book that I’m talking about.”

Eminent domain
Epstein also spoke with me about an issue in the news – eminent domain reform.

Across the country over the past few years, state legislatures have been considering and passing laws in reaction to the Supreme Court’s decision in Kelo v. City of New London (2005), which stated that governments could use eminent domain to take property from one private owner and give it to another private owner, if the transfer of property results in a “public purpose” such as more jobs or more tax revenues.

In a scathing dissent in that case, Justice Clarence Thomas memorably wrote:

“Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful.”

Fourteen years earlier, there had been a striking moment in then-Judge Thomas’s confirmation hearings when then-Senator Joseph Biden held up a book called Takings: Private Property and the Power of Eminent Domain, which Epstein wrote, and asked Thomas, essentially, if he believed what was in it.

That dramatic moment thrust legal scholar Richard Epstein into the public consciousness as the pre-eminent legal advocate for protecting private property against the intrusions of government. That is why asked him about the legal environment in the post-Kelo years and the affect that might have on future legislative attempts to protect against eminent domain abuse.

“No one is satisfied,” he said, with how the reactions to Kelo have played out over the past six years.

“This is the basic breakdown,” Epstein explained. “There are a few states which have fairly severe changes, some of them judicially, some otherwise. Michigan and Ohio, for example, are two.”

In addition, “many states have cosmetic changes, which require administrators to think more deeply before they do terrible things,” he pointed out, “and some states have relatively nominal requirements.”

Among these various regimes, he explained further, “the real difference turns out not to be in the law, it turns out to be in the practice.”

The reason is, he said, is that “once the Kelo situation came down, it raised the political cost to anybody who now wants to engage in taking of private property, particularly if it turns out to be a residential home.”

Epstein recalled a 1984 Supreme Court decision, Hawaii Housing Authority v. Midkiff, with a majority opinion written by Justice Sandra Day O’Connor, who also wrote the principal dissent in Kelo.

Midkiff, Epstein explained, “was hugely capacious, but it didn’t raise any hackles, because what was being condemned was a non-possessory interest.” It involved a “landlord’s interest in property” rented to tenants “and people, frankly, didn’t care [because] ‘these guys are landlords; they’re interested in money; we’ll give them a different stream of money.’”

Unlike Midkiff, he noted, “Kelo threw people off their property. And it threw them off their property for no reason at all.”

A person doesn’t “have to be a genius,” Professor Epstein said, “to figure out that when somebody’s thrown out of their house, which is ripped down by a pitchfork, you’d better have a very powerful justification for doing that.”

In Kelo, the justification was “real estate development, which is a sort of a bad end anyhow, but worse than that,” he continued, “there was no real estate development that required the use of that land.”

Consequently, Kelo “was an exercise in a dubious end and a crazy set of means. The two of those things together turned out to be really explosive and so now, both on the ends chosen and the means used to achieve it, there’s more scrutiny, which takes place as sort of an automatic administrative matter.”

Whether this sort of political scrutiny of local administrators is a sufficient brake on eminent domain abuse and a substitute for statutory or constitutional guarantees is a question that legislators will continue to ask.

(This article is adapted from two previous pieces that appeared on Examiner.com.)

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Author Interview: Earl Dudley Chronicles a Life from Prisoner to Professor

Having had a childhood that virtually parallels the story of Steven Spielberg’s 1987 movie, Empire of the Sun, retired UVA law professor Earl C. Dudley, Jr., begins his memoir, An Interested Life, with the Japanese bombing of the Philippines that followed the attack on Pearl Harbor.

“My mother and I were injured in the first Japanese bombing of the Philippine Islands on December 8, 1941,” he told me in a recent interview.  “With my parents, I was interned in the Japanese internment camps for a little over three years in the Philippines, and we were rescued by a very dramatic operation of the 11th Airborne Division on February 23, 1945.”

Dudley was one of more than 30 local and regional writers at a “Meet the Author” book signing at the Holiday Inn in Charlottesville on November 19.


‘My parents were starving themselves’
“I was only 4 when the war was over,” Dudley explained, “so I have little independent memory of my own, but I have no memory of having had an unhappy childhood.  My life was sheltered.  My parents were starving themselves to feed me.”

He recalled that his father, “who was about 6 feet tall and normally weighed about 175 or 180 pounds, weighed about 120 pounds when the war was over.  It was an experience for the adults that involved a tremendous amount of deprivation and unpleasantness.”

Yet, he remembers that, “as a child, I had the full attention of my parents.  They were prisoners and so they focused their attention on me and they starved themselves to feed me. So I don’t think I had an unhappy childhood.”

After spending one’s earliest years in a prisoner of war camp, anything after that must pale in comparison.  Yet Dudley’s life was peppered with poignant moments.

John F. Kennedy Assassination
In the early 1960s, he was working as a journalist for UPI in New York.  As it happens, he was on the editor's desk when President Kennedy was assassinated on November 22, 1963.

He writes in his memoir about that day:

“The news of the assassination hit me, as it did almost everyone, like a punch to the solar plexus.  But I had no time to grieve.  I was running an international news wire with the biggest story in many years.  Given the magnitude and pace of events, there was no time for a transition to a new editor, so I remained in the [editor’s] slot for most of the next shift as well….  I simply operated on instinct and somehow made it through the crisis without panicking.”

End of segregation
Dudley grew up in the South during the last years of enforced segregation.  He was in the ninth grade in Northern Virginia, when the U.S. Supreme Court ruled that “separate but equal” schools were inherently unequal and, consequently, unconstitutional in the case of Brown v. Board of Education.

“I was the only kid that I ever found at my Herndon High School in 1954 whose parents told him the Supreme Court got it right,” he said.

Working for civil rights, he continued, “was always a priority of mine.  I organized a demonstration at the White House in the spring of 1960 in support of the sit-ins in Greensboro, North Carolina, and then in later years, I did a fair amount of pro bono work for the Lawyers Committee for Civil Rights in Washington.”

Studying at the University of Virginia Law School drew Dudley to Charlottesville and, after graduating, he clerked for Chief Justice Earl Warren during the Supreme Court’s 1967-68 term.

Police pat-downs
Dudley clerked during the year the Court decided Terry v. Ohio, a case that may have relevance in the current controversy about Transportation Security Administration searches at U.S. airports.

Dudley said that case was probably the best-known of that Supreme Court term, adding that he worked on it, explaining that it “dealt with the question of police pat-downs on the street, with less than probable cause to arrest. It was very controversial case at the time and has spawned a huge, whole jurisprudence of its own.”

After two decades working for various Washington law firms, Dudley returned to Charlottesville to teach.

His classes included “mostly litigation-related courses, because that’s what I had done in practice.  I taught evidence, civil procedure, criminal procedure, criminal law, constitutional law, and trial advocacy.”

Dudley retired from teaching in 2008, and now enjoys quietude and travel with his wife of more than 50 years, Louise, and his family, seven decades after a tumultuous beginning to what he calls “an interested life.”

(This article originally appeared in slightly different form on Examiner.com on Sunday, November 21, 2010.)

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