Copyright (c) 2008 Howard University School of Law
Howard Law Journal
ARTICLE: The "Mystery of Life" in the Lower Courts: The Influence of the Mystery Passage on American Jurisprudence
51 How. L.J. 335
Trent L. Pepper*
The "mystery passage" has been the subject of substantial controversy in the more than fifteen years since it was first articulated by the Supreme Court in Planned Parenthood of Southeastern Pennsylvania v. Casey. 2 It has been praised for "bringing the right to privacy into a more public, transcendent realm" and "recognizing a more public and potent right to dignity and respect," 3 and it has been dismissed as "an embarrassing muddle," 4 "faux philosophic argument," 5 and resembling "a bad freshman philosophy paper." 6 Although lauded by some for its "distinguished pedigree," 7 it also has been criticized for being grounded in "modish and untested philosophical notions and extreme libertarianism that would have left our Framers aghast." 8 The vigor of the debate over the mystery passage is not surprising, as the passage reflects a particular perspective on the nature of the human person and liberty. 9
Jurists and commentators have also speculated that the mystery passage could have far-reaching consequences. In his Lawrence v. Texas dissent, Justice Scalia stated that the passage could be interpreted as "'casting some doubt' upon the totality of our jurisprudence." 10 Likewise, Nelson Lund of George Mason University School of Law and John McGinnis of Northwestern University School of Law explain that, under the reasoning of Lawrence embodied in the mystery passage, "it is hard to see how any regulatory statute could survive unless it is demonstrably necessary to prevent immediate injuries to people other than those who want to engage ...
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