¹ Derrida, Jacques, The Politics of Friendship 81 (George Collins trans., 1997).Google Scholar

² Benhabib, Seyla, Deconstruction, Justice and the Ethical Relationship, 13 Cardozo Law Review 1219 (1991).Google Scholar

³ Derrida, Jacques, Force of Law: The “Mystical Foundations of Authority”, 11 Cardozo Law Review 920 (1990).Google Scholar

⁴ LaCapra, Dominick, Violence, Justice, and the Force of Law, 11 Cardozo Law Review 1065 (1990).Google Scholar

⁵ Benjamin, Walter, The Critique of Violence, in Reflections: Essays, Aphorisms, Autobiographical Writings 277 (Peter Dementz ed., Edmund Jephcott trans., 1978).Google Scholar

⁶ Id. at 281-83.Google Scholar

⁷ Bowers v. Hardwick, 478 U.S. 186 (1986).Google Scholar

⁸ Benjamin, supra note 5 at 277-79; Derrida, supra note 3 at 983-85, 989.Google Scholar

⁹ Benjamin, supra note 277.Google Scholar

¹⁰ Benhabib, supra note 2. Seyla Benhabib misunderstands Benjamin here.Google Scholar

¹¹ LaCapra, supra note 4 at 1077.Google Scholar

¹² Derrida, supra note 3 at 919. I want to note here that this is also a reference to the title of the conference, “Deconstruction and the Possibility of Justice,” held at the Benjamin N. Cardozo School of Law in October 1989. “Force of Law” was the basis of Jacques Derrida's keynote address at the conference.Google Scholar

¹³ Derrida, supra note 3 at 983.Google Scholar

¹⁴ Id. at 945.Google Scholar

¹⁵ Id. at 991.Google Scholar

¹⁶ Id. at 993.Google Scholar

¹⁷ Id. at 943.Google Scholar

¹⁸ LaCapra, supra note 4 at 1067.Google Scholar

¹⁹ See Stanley Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of Theory in Literary and Legal Studies (1989).Google Scholar

²⁰ Id. at 328-31Google Scholar

²¹ In his essay, Working on the Chain Gang, Fish notes:Google Scholar

Paradoxically, one can be faithful to legal history only by revising it, by redescribing it in such a way as to accommodate and render manageable the issues raised by the present. This is a function of the law's conservatism, which will not allow a case to remain unrelated to the past, and so assures that the past, in the form of the history of decisions, will be continually rewritten. In fact, it is the duty of a judge to rewrite it (which is to say no more than that it is the duty of a judge to decide), and therefore there can be no simply “found” history in relation to which some other history could be said to be “invented.Google Scholar

Id. at 94 (footnote omitted; emphasis in original).Google Scholar

²² Bowers v. Hardwick, 478 U.S. 186 (1986).Google Scholar

²³ In Dennis Martinez and the Uses of Theory, Fish responds to Mark Kelman, quoting:Google Scholar

It is illuminating and disquieting to see that we are nonrationally constructing the legal world over and over again… In fact, it is neither. It is not illuminating because it does not throw any light on any act of construction that is currently in force, for although your theory will tell you that there is always one (or more) under you feet, it cannot tell you which one it is or how to identify it. It is not disquieting because in the absence of any alternative to interpretive construction, the fact that we are always doing it is neither here nor there. It just tells us that our determinations of right and wrong will always occur within a set of assumptions that could not be subject to our scrutiny; but since everyone else is in the same boat, the point is without consequence and leaves us exactly where we always were, committed to whatever facts and certainties our interpretive constructions make available.Google Scholar

Fish, supra note 19 at 395 (footnote omitted).Google Scholar

²⁴ Bowers v. Hardwick, 478 U.S. 186, 192-94 (1986).Google Scholar

²⁵ Hardwick v. Bowers, 760 F.2d 1202 (1985), rev'd 478 U.S. 186 (1986).Google Scholar

²⁶ Bowers v. Hardwick, 478 U.S. 186, 189 (1986). The Ninth Amendment reads:Google Scholar

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.Google Scholar

U.S. Const. amend. IX.Google Scholar

The Due Process Clause of the Fourteenth Amendment provides that:Google Scholar

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.Google Scholar

U. S. Const. amend. XIV, cl. 1.Google Scholar

²⁷ Griswold v. Connecticut, 381 U.S. 479 (1965).Google Scholar

²⁸ Roe v. Wade, 410 U.S. 113 (1973).Google Scholar

²⁹ Carey v. Population Services International, 431 U.S. 678 (1977).Google Scholar

³⁰ Bowers v. Hardwick, 478 U.S. 186, 190-91 (1986).Google Scholar

³¹ The cases in this line include Skinner v. Oklahoma, 316 U.S. 535 (1942), which struck down a law requiring sterilization of those thrice convicted of certain felonies involving “moral turpitude,” on grounds which included that the punishment interfered with the individuals’ rights in procreation; Loving v. Virginia, 388 U.S. 1 (1967), in which the Supreme Court overturned a miscegenation law, in part because it interfered with the right to marry; Griswold v. Connecticut, which affirmed the rights of married persons to receive information on the use of contraceptives as part of their rights to conduct their family life free from state interference, Eisenstadt v. Baird, 405 U.S. 438 (1972), which addressed the right of a person, regardless of marital status, to make decisions as to her own procreative choices; Roe v. Wade, providing for the right of a woman to have an abortion; and Carey v. Population Services International, 431 U.S. 678 (1977), in which the Court disallowed a law prohibiting distribution of non-prescription contraceptives by any but pharmacists or distribution to minors under the age of 16.Google Scholar

³² Bowers v. Hardwick, 478 U.S. 186, 191 (1986).Google Scholar

³³ Bowers v. Hardwick, 478 U.S. 186, 192-94 (1986) (footnotes and citation omitted).Google Scholar

³⁴ Bowers v. Hardwick, 478 U.S. 186 194 (1986).Google Scholar

³⁵ See Cornell, Drucilla, Institutionalization of Meaning, Recollective Imagination and the Potential for Transformative Legal Interpretation, 136 U. Pa. L. Rev. 1135 (1988); Drucilla Cornell., The Philosophy of the Limit Ch. 5 (1992) (Chapter five is entitled: The Relevance of Time to the Relationship between the Philosophy of the Limit and Systems Theory: The Call to Judicial Responsibility).Google Scholar

³⁶ See Fish, Working on the Chain Gain, in Doing What Comes Naturally, supra note 19 at 93-95.Google Scholar

³⁷ Derrida, supra note 3 at 997.Google Scholar

³⁸ Bowers v. Hardwick, 478 U.S. 186, 191 (1986).Google Scholar

³⁹ Bowers v. Hardwick, 478 U.S.186 (making reference to Justice Goldberg's concurrence in Griswold v. Connecticut).Google Scholar

⁴⁰ Bowers v. Hardwick, 478 U.S. 186, 199 (1986) (Blackmun, J. dissenting; quoting Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting)).Google Scholar

⁴¹ Bowers v. Hardwick, 478 U.S. 186, 199 (1986) (quoting Oliver W. Holmes, The Path of the Law, 10 Harv. L. Rev. 469 (1897)).Google Scholar

⁴² Derrida, supra note 3 at 943.Google Scholar

⁴³ LaCapra, supra note 4 at 1069.Google Scholar

⁴⁴ Benjamin, supra note 5, 286.Google Scholar

⁴⁵ See LaCapra, , supra note 4 at 1071, 1077–78.Google Scholar

⁴⁶ Derrida, supra note 3 at 971.Google Scholar

⁴⁷ Id. at 943-45.Google Scholar

⁴⁸ See Hardwick v. Bowers, 760 F.2d 1202, 1211-13 (1985).Google Scholar

⁴⁹ See Derrida, supra note 3 at 961-63.Google Scholar

⁵⁰ Holmes, Oliver W., The Path of the Law, 10 Harv. L. Rev. 469 (1897).Google Scholar

⁵¹ Derrida, supra note 3 at 961.Google Scholar

⁵² For a more thorough exploration of the appeal to natural and unnatural conceptions of sexuality, see Drucilla Cornell, Gender, Sex and Equivalent Rights, in Feminists Theorize the Political (Judith Butler and Joan Scott eds., 1991).Google Scholar

⁵³ Derrida, supra note 3 at 971.Google Scholar

⁵⁴ Bowers v. Hardwick, 478 U.S. at 186, 187, 199 (1986).Google Scholar

⁵⁵ Derrida, supra note 3 at 955.Google Scholar

⁵⁶ LaCapra, supra note 4 at 1068.Google Scholar

⁵⁷ Derrida, supra note 3 at 993.Google Scholar

⁵⁸ Benjamin, supra note 5 at 297-98; Derrida, supra note 3 at 1029-31.Google Scholar

⁵⁹ Benjamin, supra note 5 at 294.Google Scholar

⁶⁰ See LaCapra, supra note 4 at 1069-70.Google Scholar

⁶¹ See Benjamin, supra note 5 at 286-87.Google Scholar

⁶² Monique Wittig, Les Guerilleres (David Le Vay trans., 1975).Google Scholar

⁶³ LaCapra, supra note 4 at 1070.Google Scholar