Abstract

This paper examines the case of Lawrence v. Texas to bring out the philosophical commitments of Justices Anthony Kennedy and Antonin Scalia. It is proposed that Justices Kennedy and Scalia, while both Catholics, represent fundamentally different visions of the “ends and reasons” of democratic law. A close reading of the Justices’ opinions in Lawrence indicates that Justice Scalia belongs to the tradition of the “ancients” and Justice Kennedy to the tradition of the “moderns.” The paper focuses in particular on the Justices’ interpretations of the Due Process Clause of the Fourteenth Amendment. It is claimed that the interpretation of this clause turns on a philosophical commitment regarding the ends and reasons that the Constitution should be understood to serve, and thus that justices cannot help acting as “philosopher kings” here. Which of the two Justices is more consistent with the Catholic tradition is proposed as a question for another day.