Lawrence & Originalism

[Francisco Martin]

Prof. Maltz wrote in relevant part: "No one (I don't think) would argue
that Lawrence is correctly decided from an originalist viewpoint."

COMMENT:  I would argue that Lawrence was correctly decided from an
originalist viewpoint.  Madison, Randolph, Jefferson, and Hamilton  all
argued (without objection from any other Founders or Framers) that the
Constitution must be construed in conformity with customary international
law.  Because customary international law is -- well, customary -- it is
evolving.  See Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796) (distinguishing
between ancient and modern law of nations).  It was well established by the
time of Lawrence that customary international law prohibited criminal
statutes outlawing sodomy on both rights to privacy and non-discrimination
grounds.  See Dudgeon v. UK, Norris v. Ireland, Modinos v. Cyprus, Toonen
v. Australia.  Therefore, construing the Constitution according to present
customary international law is originalist.

Francisco Forrest Martin