Today’s discussion was about slippery slopes, primarily in legal reasoning but in politics as well. After Prof. Hollis-Brusky introduced the topic, we spent the bulk of our time relating examples from the floor to five of the categories in Volokh’s paper (listed on pp. 1033-34).
Three cheers to Prof. Hollis-Brusky for parachuting in and leading an awesome discussion! And thanks to everyone who came prepared with such great examples. A class, especially a seminar, is usually only as good as its members. Well done!
I have nothing nearly so interesting to add about slippery slopes. But I do know a few trivial things that came up in the course of talking about slippery slopes. Let’s start with frogs.
A frog will jump out of a pot of water when it gets uncomfortably hot. (It will probably jump out of a pot of water even if it’s perfectly nice, to be honest, but that’s a different story.)
James Fallows has been trying to eliminate this cliché for years. The intrepid journalists at Fast Company asked Dr. George R. Zug, curator of reptiles and amphibians at the National Museum of Natural History, about it. Here’s Dr. Zug.
“Well that’s, may I say, bullshit. If a frog had a means of getting out, it certainly would get out. And I cannot imagine that anything dropped in boiling water would not be scalded and die from the injuries.”
Not content with citing authority, the Fast Co Journos ran a test themselves and found that the frog did, indeed, hop out. Wikipedia cites even more tests.
Enough about the frogs.
Everything that you think you know about the facts in Lawrence v. Texas is wrong. Or maybe you know more than me; everything I thought I knew was wrong. For example:
“the case that affirmed the right of gay couples to have consensual sex in private spaces seems to have involved two men who were neither a couple nor having sex. In order to appeal to the conservative Justices on the high court, the story of a booze-soaked quarrel was repackaged as a love story. Nobody had to know that the gay-rights case of the century was actually about three or four men getting drunk in front of a television in a Harris County apartment decorated with bad James Dean erotica.”** Dahlia Lithwick, “Extreme Makeover” New Yorker, March 12, 2012.
The article is a review of Flagrant Conduct by Dale Carpenter. I haven’t even quoted the best part. In a nutshell, the plaintiffs’ attorneys needed a case to get Bowers v. Hardwick overturned and they seem to have largely created one. Since sodomy charges are extremely rare, they had to be creative.
But that’s not all. On the other side of the case, it was proposed that there is a slippery slope that goes from the decriminalization of homosexual sodomy at the top of the slope down to the decriminalization of other “forms of sexual behavior” such as “fornication, bigamy, adultery, adult incest, bestiality, and obscenity” at the bottom of the slope. But the facts are off here too. The prohibition on sodomy was left vague in Texas until it was restricted to homosexual acts around 1973. Heterosexual sodomy and bestiality were decriminalized about the same time.
In other words, Texas went to the bottom of that slope first before it was dragged back to the top about thirty years later.
Seriously, though, the informal social sanctions that might have genuinely discouraged homosexuality are clearly waning while those against the behaviors at the bottom of the slope remain as strong as ever. Whether society is going to tolerate these things or not doesn’t have a lot to do with the law. After all, the relevant laws weren’t even enforced: how effective could they have been?
The whole thing seems divorced from reality, but at least some embarrassing and insulting laws are off the books.
Finally, as for the Affordable Care Act case, I never understood the broccoli thing. The argument was that if the government had the power to require individuals to buy health insurance, it would also have the power to require them to do things like buy broccoli, and that this would be an intolerable expansion of the Federal Government’s power over individual liberty.
But here are two claims about the law that I believe every Justice would accept.
It may well be that the Federal Government lacks the power to directly require individuals to purchase of health insurance.†† As opposed to taxing those who do not do so, which is what the majority decision said it does have the power to do. But as far as individual liberty is concerned, we’re at the bottom of the legal slippery slope: the individual has no Constitutional protection against a broccoli mandate. The Constitution, for better or worse, does not protect us against stupid laws.