book cover imageSex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century
by Geoffrey R. Stone.
Liveright Publishing Corporation, 2017.
Cloth, 669 pages, $35.

Geoffrey Stone is very like the proverbial little girl with the curl in the middle of her forehead. When he’s good he’s very, very good, and when he’s bad, he’s horrid. Stone is the Edward H. Levi Distinguished Service Professor of Law at the University of Chicago, and has served, to great acclaim, as both Chicago’s law school dean and provost. He is a man of the progressive left, but he was very, very good when he recently defended conservative icon Associate Justice Antonin Scalia against charges of racism. This was when the Supreme Court considered an affirmative action case, and Scalia rightly wondered, pursuant to the so-called social science “mismatch” theory, whether minority students suffered when affirmative action resulted in their placement in academic programs where their non-minority peers had superior credentials. According to the mismatch theory, which Stone criticized, such placement can create failure and frustration, and also according to the theory, minority students score more academic success when they are in programs with peers with similar abilities. While he did not agree with Scalia, Stone eloquently defended Scalia’s good faith and blasted Scalia’s unthinking critics. But Stone was horrid when, even more recently, he was among more than 1400 left-leaning law professors who signed a screed urging the Senate to reject the nomination of Jeff Sessions based on a litany of unsubstantiated charges, including that of insufficient sensitivity to African-Americans. Fortunately, Sessions was confirmed by a majority of his fellow Senators, who knew him and his qualifications better than the law professors.

Both qualities of Stone are on display in his blockbuster of a new book, more than six hundred pages devoted to “Sex and the Constitution.” To have written such a tome is perhaps a bit startling considering that the word “sex” appears precisely once in the United States Constitution, to wit, in the Nineteenth Amendment, ratified in 1920, which provides that “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.” One might be forgiven for thinking that the Constitution has very little to do with sex—and that such a domestic issue, constitutionally speaking, ought to be left to the state and local governments—but this is not the view of the United States Supreme Court, nor is it that of Professor Stone. He is, one has to concede, very, very good in his meticulous detailing of the court decisions and legislative battles in the state and federal governments over contraception, abortion, sodomy, and same-sex marriage. This is the most information, clearly presented, that we are likely to get about these important contemporary legal developments, the lawyers, and the purported legal and Constitutional issues involved, and even the particular litigants and defendants caught in the tangles of law enforcement. As he did with Scalia, Stone does an admirable job presenting the arguments of those with whom he does not agree, including the conservative religious opponents of abortion and same-sex marriage.

For your reviewer, at least, Stone is horrid, however, when he apparently concurs that all of these topics are appropriate for resolution by the Supreme Court, as if the Constitution dictated particular results on the issues he explores. Stone is able to do so because he, like others now identifying themselves as legal progressives, defends what we now refer to as “living Constitution,” or “Popular Constitutionalism” theories. These notions, which, to be fair to Stone, have long been ascendant in the American legal academy, suggest that the job of courts, and the Supreme Court in particular, is to alter the meaning of the laws and Constitution so that they will be less in accord with their original understanding, and more in accord with currently fashionable progressive political notions. Thus, to give a few examples, it was perfectly permissible, indeed laudable, Stone explains, for the Supreme Court to find, in the United States Constitution, a “right to privacy” which allowed the Court to bar state governments from forbidding the sale of contraceptives to married or unmarried persons, and, eventually, virtually prohibited any state from prohibiting abortion. Similarly, Stone celebrates Supreme Court decisions which forbade discrimination against homosexuals, and more recently, required each ofthe fifty states to permit marriage between same-sex couples.

What is even more remarkable, and perhaps equally horrid, is Stone’s belief that in approving of these decisions (and many others) he is subscribing to a Constitutional theory of “originalism,” whereby he is being faithful to the beliefs of the framers of the Constitution. In so doing, Stone is embracing what has recently been labelled “liberal originalism.” Pursuant to this newly trendy jurisprudential move among progressives, the original meaning of the Constitution was not to anchor it in the values of the eighteenth century. Rather, according to this theory, the framers deliberately used broad terms, such as “due process,” “equal protection,” or even “liberty,” which, it was purportedly understood by those framers, would change meaning as the culture and the desires of the American people changed. This clever move in constitutional theory, of course, was a way for liberals to co-opt conservative originalists, such as the late Antonin Scalia, who thought that it was our duty to be faithful to the fixed meaning of the document as it was, in fact, understood by those who framed and ratified it.

Also disturbing is the claim that Stone advances that the United States, at least at the time of the ratification of the Constitution of 1789, was not a “Christian nation,” and therefore, any claims to that effect, as prominently made, for example, in the course of the late nineteenth and early twentieth centuries, are incorrect. Thus, for Stone, any efforts to condemn abortion, or homosexuality, or anything else, on religious grounds cannot legitimately be tied to the Constitution. This means, for Stone—just as, apparently, it means for one of the Justices Stone regards most highly, Anthony Kennedy, the current “swing justice”—that it is impermissible for the federal (or the state) governments to use morality or religion as a foundation for their laws, because to do so would improperly amount to an establishment of religion clearly forbidden by the First Amendment. And these days, of course, the Constitution means what Anthony Kennedy thinks it means, on any given Monday.

As I see it, however, our history is quite different. There have been many claims, of late, that ours is a “godless Constitution,” but the truth is that at the time of the First Amendment, two states still had established churches, and virtually all of the states had religious qualifications either to exercise the franchise or to hold public office. It’s true that the Federal Government was forbidden in the Constitution from imposing any religious test for office, and it is true that the First Amendment forbids Congress (but not the state governments) from passing a law regarding “an establishment of religion.” Nevertheless, it is also true that several of our founders, most notably Alexander Hamilton and George Washington, and also at least one of our early Supreme Court Justices, Samuel Chase, believed that it was impossible to have order without law, impossible to have law without morality, and impossible to have morality without religion.

That contemplated religion was, more often than not, the Christian religion, and every one of the thirteen original states expressly adopted the English Common Law, which as all Americans then knew from reading Blackstone, presupposed Christianity as a foundation. Stone (like most other progressives) rarely pauses to consider how small a part in law, government, and culture the federal government played in the late eighteenth century, so that the Constitution’s failure explicitly to embrace Christianity should not be regarded as telling us much about the contemplated power of the state and local governments in that regard.

It’s true that the federal constitution and the federal government is now everywhere before us, but that was not the case throughout much of our history. Much more important for those living in the early republic were their state constitutions, and it is important to understand that in 1787, at the time the Constitution was put forth for ratification, most of the new states’ constitutions incorporated some kind of explicit acknowledgment of God and often of the importance of Christian religion to the good order of the state. As late as 1833, reflecting on the intentions of the framers, Justice Joseph Story, one of the greatest of United States Supreme Court justices, could write in his treatise on the Constitution that it was the duty of government (by which he meant both the federal and the state governments) to support religion in general and Christianity in particular. Stone doesn’t pause much to consider it, but when it was drafted in 1791, the establishment clause of the First Amendment was not meant to erect a general wall of separation between the church and the state, but rather to ensure that the state and local governments could do what seemed appropriate with religion without interference from the federal government.

One can’t then, by reading Stone, arrive at an understanding of what the framers of the Constitution actually sought to do. And if one believes that the original understanding as originally understood ought still to guide us, as Scalia did (and I do), Stone’s work will be alarming, to say the least. Equally alarming, or perhaps strangely horrifying, intriguing, or titillating will be the fact that this book has the most bizarre and erotic illustrations of any text on Constitutional law published to date. I’m always willing to meet a book with pictures at least half-way, since I’ve always believed, with Alice of Alice in Wonderland, that a book without pictures is woefully deficient. And Stone being a very, very good, indeed, an unusually lucid and talented writer, if you want an understanding of why Constitutional law became the horrid morass it now has become, you could not do better than to read Sex and the Constitution. 

Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, a Professor of Strategy at Northwestern’s Kellogg School of Management, and the author of Law Professors: Three Centuries of Shaping American Law (West Publishing Co., 2016).