ABSTRACT
H. N. Hirsch states in the introduction that Lawrence was truly revolutionary because it was broadly based, made clear that fundamental rights were involved, and overturned Bowers v. Hardwick, a relatively decision. This chapter argues that the significance of Lawrence lies in the fact that in reasoning about the case, while the Court’s “originalist” justices rejected a social construction process, the Court’s non-originalist justices wholeheartedly embraced such an approach to constitutional reasoning. The dual normative and empirical constitutive Supreme Court decision-making process is neither simply foundational, as legal-ists emphasize. Lawrence v. Texas provides a textbook analysis of non-originalist justices engaging in the social construction process. Justice Kennedy’s majority opinion in Lawrence evinces a robust engagement in the social construction process. The justifications for a minimalist reading of Lawrence, rather than a critical “rights as truths” approach, are quite similar to those enunciated in One Case at a Time.
