ABSTRACT
The Supreme Court's problematic historiography deepens the normative problems other scholars have identified for Hardwick and illustrates conceptual difficulties with the original understanding methodology the Court sometimes deploys in constitutional cases. Although privacy is not named as a protected right in the US Constitution, American judges since the mid-nineteenth century have read constitutional assurances of due process of law to have a substantive libertarian component. Because Justice White's opinion in Hardwick rested ultimately upon historical analysis, the opinion may be tested against historical materials and theories. The primary historical justification for penalizing crimes against nature reaches back to the early Christian era and the Middle Ages. The feminist and gay historiographical literature suggests convincing reasons for heightened awareness of nonmarital sex generally and same-sex intimacy in particular. Criminal laws operate both negatively and positively. They act negatively by stigmatizing certain conduct; they act positively by normalizing the conduct not prohibited.
