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Abstract
This essay discusses Justice Anthony M. Kennedy's choice to foreground arguments from due process rather than equal protection in the majority opinion in Lawrence v. Texas. Kennedy's choice can realize constitutional legal doctrine that is more consistent with radical queer politics than arguments from equal protection. Unlike some recent critiques of Kennedy's opinion, a queer rhetorical analysis of Lawrence reveals a futuristic, always-open-to-change vision in Kennedy's rhetorical framing of constitutional law that is significantly less damaging to possibilities for “queer world making” in the United States than other contemporary US judicial arguments of and about sexuality.
Acknowledgments
The author wishes to particularly thank Josh E. Anderson, Debra Hawhee, Cory Holding, Ned O'Gorman, and Kent A. Ono for their invaluable support and advice during the long process of writing and revising this manuscript. Any errors are the author's sole responsibility
Notes
1. Opinion of Kennedy, J., Lawrence v. Texas, 539 US 558 (2003): 18.
2. My use of queer in opposition to “mainstream” “gay and lesbian” politics follows Shane Phelan's discussion in Sexual Strangers: Gays Lesbians, and Dilemmas of Citizenship (Philadelphia: Temple University Press, 2001), 3, 108–09. See also James Darsey, The Prophetic Tradition and Radical Rhetoric in America (New York: New York University Press, 1997), 185.
3. Darsey, The Prophetic Tradition, 181, and Judith Butler, Undoing Gender (New York: Routledge, 2004), 3–5, 8.
4. Marouf Hasian, Jr., Legal Memories and Amnesias in America's Rhetorical Culture (Boulder, CO: Westview Press, 2000), 197.
5. “Queer Rhetorical Studies” was the name given to this emerging sub-field in the workshop of the same name at the Rhetoric Society of America's 2009 Summer Institute, led by Karma R. Chávez, Charles E. Morris III, and Isaac West.
6. See for example Isaac West, “Debbie Mayne's Trans/scripts: Performative Repertoires in Law and Everyday Life,” Communication and Critical/Cultural Studies 5 (2008): 246–47, and also Darsey, The Prophetic Tradition, 185.
7. See for example Jasbir K. Puar, Terrorist Assemblages: Homonationalism in Queer Times (Durham, NC: Duke University Press, 2007), 114–66; Katherine M. Franke, “The Domesticated Liberty of Lawrence v. Texas,” Columbia Law Review 104 (June 2004): 1399–426; and Lynne Huffer, “Queer Victory, Feminist Defeat? Sodomy and Rape in Lawrence v. Texas,” in Feminist and Queer Legal Theory: Intimate Encounters, Uncomfortable Conversations, ed. Martha Albertson Fineman, Jack E. Johnson, and Adam P. Romero (Burlington, VT: Ashgate Publishing Company, 2009), 411–31.
8. David A. J. Richards, Women, Gays, and the Constitution (Chicago: University of Chicago Press, 1998), 348–49.
9. Phelan, Sexual Strangers, 9, and Barbara Smith, “Where's the Revolution?” The Nation (January 1, 1998), http://www.thenation.com/print/article/wheres-revolution
10. Kennedy, Lawrence v. Texas, 14. See also notes 64, 65, 125, and 128.
11. See for example Alexander Doty, Making Things Perfectly Queer: Interpreting Mass Culture (Minneapolis: The University of Minnesota Press, 1997), xi. Doty describes a method of queer rhetorical criticism that includes “adopting reception positions that can be considered ‘queer’ in some way, regardless of a person's declared sexual and gender allegiances.” I am not interested in examining the decision in order to add to those United States cultural texts and practices that might be considered in and of themselves “queer.”
12. I mean “procedural” in two ways; first, as in legal “procedure,” which is simply “a specific method or course of action” in a legal “proceeding,” or “the business conducted by a court,” and second, as in “procedural law,” or “the rules that prescribe the steps for having a right or duty judicially enforced, as opposed to the law that defines the specific rights or duties themselves.” Black's Law Dictionary, 7th ed., ed. Bryan A. Garner (St. Paul, MN: West Group, 1999), s.v. “procedure,” “procedural law.” In other words, the procedural means by which Kennedy arrives at his conclusions regarding “substantive” due process matter to queer politics.
13. David A. J. Richards, Identity and the Case for Gay Rights: Race, Gender, Religion as Analogies (Chicago: University of Chicago Press, 1999), 171–72; Richards, Women, Gays, and the Constitution, 348–49; Puar, Terrorist Assemblages, 128, and Butler, Undoing Gender, 8.
14. Lauren Berlant and Michael Warner, “Sex in Public,” Critical Inquiry 24 (1998): 561.
15. Marouf Hasian, Jr., Celeste Michelle Condit, and John Louis Lucaites, “The Rhetorical Boundaries of ‘the Law’: A Consideration of the Rhetorical Culture of Legal Practice and the Case of the ‘Separate But Equal Doctrine,’” Quarterly Journal of Speech 82 (1996): 323.
16. Leslie J. Moran, “A Queer Case of Judicial Diversity: Sexuality, Law, and Judicial Studies,” in The Ashgate Research Companion to Queer Theory, ed. Noreen Giffney and Michael O'Rourke (Burlington, VT: Ashgate Publishing Company, 2009), 295.
17. Moran, “A Queer Case of Judicial Diversity,” 295–96. See also Francisco Valdes, “Coming Out and Stepping Up: Queer Legal Theory and Connectivity,” The National Journal of Sexual Orientation Law 1,1 (1995): 1, http://www.ibiblio.org/gaylaw/issue1/valdes.html; and Huffner, “Queer Victory,” 430–31.
18. Phelan, Sexual Strangers, 3, 108–09.
19. Cathy J. Cohen, “Punks, Bulldaggers and Welfare Queens: The Radical Potential of Queer Politics?” GLQ 3 (1997): 437–65, in Phelan, Sexual Strangers, 8.
20. Butler, Undoing Gender, 104–06.
21. Phelan, Sexual Strangers, 3 and 8.
22. Berlant and Warner, “Sex in Public,” 562.
23. Berlant and Warner, “Sex in Public,” 562, in Charles E. Morris III, “Introduction: Portrait of a Queer Rhetorical/Historical Critic,” in Queering Public Address: Sexualities in American Historical Discourse, ed. Charles E. Morris III (Columbia: The University of South Carolina Press, 2007), 5.
24. Mari J. Matsuda, “Legal Storytelling: Public Response to Racist Speech: Considering the Victim's Story,” Michigan Law Review 87 (1989): 2322.
25. Matsuda, “Legal Storytelling,” 2323.
26. “The constitutional guarantee under the [Equal Protection Clause of the] 14th Amendment that the government must treat a person or class of persons the same as it treats other persons or classes in like circumstances.” Black's Law Dictionary, s.v. “equal protection.”
27. See explanation of substantive due process at note 37.
28. According to David D. Meyer's (then Associate Dean for Academic Affairs and Professor of Law, University of Illinois College of Law) closing statements to his Spring 2010 Constitutional Law I class, two of the most significant issues facing the Court in the next decade will be first, whether equal protection or due process analysis will be more controlling in civil liberties cases, and second, the way in which substantive due process doctrine is applied in civil liberties cases.
29. Lawrence v. Texas, 539 US 558 (2003).
30. The decision is also referenced as “6–3,” but while all nine justices voted, Justice Sandra Day O'Connor filed a separate, concurring opinion that did not accept the entire decision of the majority. In such situations “5–3” is appropriate. See for example James W. Stoutenborough, Donald P. Haider-Markel and Mahalley D. Allen, “Reassessing the Impact of Supreme Court Decisions on Public Opinion: Gay Civil Rights Cases,” Political Research Quarterly 59 (2006): 421, and Mark Smith, “Lawrence v. Texas Plaintiff Dies: Tyrone Garner Co-Defendant in Case that Overturned Nation's Sodomy Laws,” Qnotes, http://www.q-notes.com/top2006/top02_092306.html. I choose “5–3” because it highlights the important difference to my argument in this paper between the majority and concurring opinions in Lawrence.
31. Puar, Terrorist Assemblages, 121.
32. Kennedy, Lawrence v. Texas, 3.
33. Kennedy, Lawrence v. Texas, 1–2.
34. Kennedy, Lawrence v. Texas, 17.
35. Bonnie Miluso, “Family ‘De-Unification› in the United States: International Law Encourages Immigration Reform for Same-Gender Binational Partners,” Georgetown International Law Review 36 (2004): 924; Kennedy, Lawrence v. Texas, 3, 14, 17–18. Kennedy says the Court accepted the case in order to “consider three questions”: whether the “Texas statute” violated the Equal Protection Clause, whether it violated the Due Process Clause, and “whether Bowers v. Hardwick … should be overruled?” These are the questions the Court considered; in the next section, Kennedy specifies that the decision will hinge on substantive due process. “We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of the liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution.” Kennedy, Lawrence v. Texas, 3. See the explanation of “due process” and the “Due Process Clauses” at note 37.
36. Lawrence v. Texas, 539 US 558 (2003); Scalia, J., dissenting. Justice Thomas wrote a short opinion clarifying his joining of Scalia's dissent. Thomas, J., dissenting.
37. Under the Due Process Clauses of the Constitution (the one in the 5th Amendment is controlling on the federal government, the one in the 14th Amendment on the states), the “government” is prohibited “from unfairly or arbitrarily depriving a person of life, liberty, or property.” Black's Law Dictionary, s.v. “Due Process Clause.” In constitutional jurisprudence, two doctrinal applications of the Due Process Clauses have been developed: “procedural” due process, meaning the minimal requirement that the deprivation of a person's “life, liberty, or property” be carried out according to appropriate and just legal procedure, and “substantive” due process, which requires “legislation to be fair and reasonable in content and to further a legitimate governmental objective.” Black's Law Dictionary, s.v. “due process.” In civil rights cases such as Lawrence that are concerned with the deprivation of freedom, “substantive” due process is the relevant doctrine, as while the plaintiffs were likely deprived of “significant life, liberty, or property interests” through their due legal procedure, the question remains as to whether the deprivation of liberty itself is a warranted exercise of governmental power. See also the discussion of levels of scrutiny in equal protection and due process analysis, at notes 129–132. Where Kennedy refers to the singular “Due Process Clause” as the basis for the Court's decision, he references the 14th Amendment, as Lawrence concerns a state law. Vaughn R. Walker's reference to the “Due Process Clause” is also to the 14th Amendment. The text of this essay follows Kennedy's usage; “Due Process Clause,” singular, refers to Kennedy and Walker's invocation of the 14th Amendment, while “Due Process Clauses” refer to the 5th and Fourteenth Amendments, or the overall constitutional guarantee of due process in both federal and state legal procedure.
38. O'Connor, J., concurring in judgment, Lawrence v. Texas, 539 US 558 (2003): 1.
39. Diane E. Elze, “Oppression, Prejudice and Discrimination,” in Sexual Orientation & Gender Expression in Social Work Practice: Working with Gay, Lesbian, Bisexual and Transgender People, ed. Deana F. Morrow and Lori Messinger (New York: Columbia University Press, 2006), 56, and Franke, “Domesticated Liberty,” in Puar, Terrorist Assemblages, 118.
40. Huffer, “Queer Victory,” 430.
41. Francis J. Mootz III, Rhetorical Knowledge in Legal Practice and Critical Legal Theory (Tuscaloosa: The University of Alabama Press, 2006), 8–9. See also James Jasinski, Sourcebook on Rhetoric: Key Concepts in Contemporary Rhetorical Studies (Thousand Oaks, CA: Sage Publications, 2001), 463.
42. Mootz, Rhetorical Knowledge, 107.
43. Mootz, Rhetorical Knowledge, 109.
44. Kennedy, Lawrence v. Texas, 1.
45. Puar, Terrorist Assemblages, 118.
46. Puar, Terrorist Assemblages, 121.
47. Puar, Terrorist Assemblages, 121.
48. See the discussion regarding levels of scrutiny at notes 129–132.
49. Stephen G. Breyer, Active Liberty: Interpreting Our Democratic Constitution (New York: Vintage, 2006), 5.
50. Breyer, Active Liberty, 39.
51. Breyer, Active Liberty, 12, 118–20.
52. Breyer, Active Liberty, 15–16.
53. Judith Butler, Bodies that Matter: On the Discursive Limits of ‘Sex’ (New York: Routledge, 1993), 3.
54. Phelan, Sexual Strangers, 3, 9, 108–09.
55. Huffer, “Queer Victory,” 430–31.
56. Berlant and Warner, “Sex in Public,” 551.
57. Brian Hawkins, “The Glucksberg Renaissance: Substantive Due Process since Lawrence v. Texas,” Michigan Law Review 105 (2006): 410; Tim Murphy, “The Unconstitutional Anti-Gay Law That Just Won't Die,” Mother Jones (April 12, 2011), http://motherjones.com/politics/2011/04/lawrence-texas-homosexual-conduct-statute
58. Hawkins, “The Glucksberg Renaissance,” 410.
59. See Robert Asen, “Reflections on the Role of Rhetoric in Public Policy,” Rhetoric and Public Affairs 13 (2010): 127–29.
60. Elze, “Oppression, Prejudice and Discrimination,” 56.
61. Richard Mohr in Elze, “Oppression, Prejudice and Discrimination,” 56.
62. Richards, Identity and the Case for Gay Rights, 171–72, and Richards, Women, Gays, and the Constitution, 348–49.
63. While the assignment of the majority opinion does not guarantee the rest of the justices will join the assigned judge's opinion as the majority, it does give the assigned opinion greater weight in the eyes of other justices on the Court. Toobin also argues that in this particular case, Stevens’ assignment of the opinion to Kennedy assured that Kennedy's opinion would represent the majority. Jeffrey Toobin, “After Stevens: What will the Supreme Court be like without its liberal leader?,” The New Yorker (March 22, 2010): 45.
64. Toobin, “After Stevens,” 45. See also Kennedy, Lawrence v. Texas, 14.
65. Kennedy, Lawrence v. Texas, 14: “As an alternative argument in this case, counsel … contend that Romer provides the basis for declaring the Texas statute invalid under the Equal Protection Clause … were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants. Equality of treatment and the due process right to demand for respect for conduct provided by the substantive guarantee of liberty are linked … a decision on the latter point [due process] advances both interests.”
66. Cathy J. Cohen, “Keynote Address,” Queertopia!: An Academic Festival Conference, Northwestern University Queer Pride Graduate Student Association (Chicago: Northwestern University, May 22, 2010). Cohen calls for queer scholars responding to proposed legislation and other state-institutional action concerning sexuality to consider the value of “pratical” alongside “radical queer politics,” and to not regard the two as mutually exclusive.
67. Black's Law Dictionary, s.v. “dictum.”
68. Black's Law Dictionary, s.v. “dictum.”
69. Antonin Scalia, Lawrence v. Texas, 539 US 558 (2003): 14, “the Court's discussion of these foreign views … is therefore meaningless dicta.”
70. Black's Law Dictionary, s.v. “dictum,” “gratis dictum.”
71. Scalia, Lawrence v. Texas, 14–15.
72. Kennedy, Lawrence v. Texas, 18.
73. Hawkins, “The Glucksberg Renaissance,” 410.
74. Kennedy, Lawrence v. Texas, 17–18, my emphasis.
75. Puar, Terrorist Assemblages, 2, 17–19, 48, 127.
76. Puar, Terrorist Assemblages, 123.
77. Puar, Terrorist Assemblages, 123.
78. Richard D. Mohr, “The Shag-A-Delic Supreme Court: ‘Anal Sex,’ ‘Mystery,’ ‘Destiny,’ and the ‘Transcendent’ in Lawrence v. Texas,” Cardozo Women's Law Journal 10 (2004): 374.
79. Kennedy, Lawrence v. Texas, 18, my emphasis.
80. See Puar, Terrorist Assemblages, 126–27.
81. Butler, Bodies that Matter, 3.
82. Cohen, “Punks, Bulldaggers and Welfare Queens,” in Phelan, Sexual Strangers, 8.
83. As Puar argues, “the conservatization [in Lawrence] of sexual, gender, and kinship norms cannot be disaggregated from its nationalist, classist, and racist impulses, or from the liberal underpinnings of subject formation.” Puar, Terrorist Assemblages, 128.
84. Berlant and Warner, “Sex in Public,” 562.
85. Siobhan B. Somerville, “Queer Loving,” GLQ: A Journal of Gay and Lesbian Studies 11 (June 2005): 335, in Puar, Terrorist Assemblages, 117.
86. Asen, “Reflections on the Role of Rhetoric in Public Policy,” 130.
87. Asen, “Reflections,” 127–29.
88. Kennedy, Lawrence v. Texas, 18.
89. Kennedy, Lawrence v. Texas, 18.
90. Black's Law Dictionary, s.v. “dictum,” “gratis dictum.”
91. G. Thomas Goodnight, “The Metapolitics of the 2002 Iraq Debate: Public Policy and the Network Imaginary,” Rhetoric and Public Affairs 13 (2010): 69.
92. Black's Law Dictionary, s.v. “loose construction,” “liberal construction.”
93. Darsey, The Prophetic Tradition, 197.
94. Mohr, “The Shag-A-Delic Supreme Court,” 391.
95. Lochner v. New York, 198 US 45 (1905).
96. Erwin Chemerinsky, Constitutional Law, Third Edition (New York: Aspen Publishers, 2009), 608.
97. Brown v. Board of Education of Topeka, 347 US 483 (1954).
98. Derrick A. Bell, Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform (Oxford and New York: Oxford University Press, 2004), 1–2.
99. Cass R. Sunstein, “Sexual Orientation and the Constitution: A Note on the Relationship between Due Process and Equal Protection,” University of Chicago Law Review 55 (1988): 1161 and 1163.
100. Reva Siegel, “Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action,” Stanford Law Review 49 (1997): 1114. See also Bell, Silent Covenants, 196–97.
101. Russell K. Robinson, “Proposition 8, ‘Hate’ & ‘Like Race’ Arguments” (paper presented at the Northwestern University Queertopia! An Academic Festival conference, Chicago, Illinois, May 21–22, 2010). See also Robinson, “Perceptual Segregation,” Columbia Law Review 108 (2008): 1101–02.
102. Butler, Bodies that Matter, 3.
103. Puar, Terrorist Assemblages, 222.
104. Puar, Terrorist Assemblages, 221.
105. Puar, Terrorist Assemblages, 221.
106. Butler, Undoing Gender, 8.
107. Puar, Terrorist Assemblages, 222.
108. Philip C. Bobbitt in Sanford V. Levinson, “The Embarrassing Second Amendment,” Yale Law Journal 99 (1989): 643.
109. Toobin, “After Stevens,” 45.
110. Butler, Undoing Gender, 104–06.
111. See Phelan, Sexual Strangers, 5.
112. Butler, Undoing Gender, 104.
113. Kevin P. Murphy, Jason Ruiz, and David Serlin, “Editor's Introduction,” Radical History Review 100 (Winter 2008): 4; Roderick A. Ferguson, “Administering Sexuality; or, The Will to Institutionality,” Radical History Review 100 (Winter 2008): 163.
114. Butler, Undoing Gender, 8.
115. Cohen, “Keynote Address.”
116. In re Marriage Cases, 43 Cal. 4th 757, 183 P.3d 384; 76 Cal. Rptr. 3d 683 (California 2008). LEXIS 5247.
117. Varnum v. Brien, WL 874044 (Iowa 2009), http://www.judicial.state.ia.us/wfData/files/Varnum/07-1499.pdf
118. Meredith L. Patterson, “Prop 8 Postmortem, Part 1: Dissecting History,” California National Organization for Women, http://www.canow.org/canoworg/2008/11/prop-8-postmortem-part-1-dissecting-history.html
119. Perry v. Schwarzenegger, 2010 US Dist. LEXIS 78817 (N.D. Cal., Aug. 4, 2010): 117.
120. Perry v. Schwarzenegger, 135.
121. O'Connor, Lawrence v. Texas, 4–6.
122. Kennedy, Lawrence v. Texas, 17; O'Connor, Lawrence v. Texas, 7; Scalia, Lawrence v. Texas, 15: “Finally, I turn to petitioners” equal-protection challenge, which no Member of the Court save Justice O'Connor … embraces.”
123. Plessy v. Ferguson, 163 US 537 (1896).
124. O'Connor in Varnum v. Brien, 49.
125. See also Kennedy, Lawrence v. Texas, 14.
126. The similarity between the Plessy decision and O'Connor's concurrence in Lawrence highlights the need for future queer rhetorical analysis of jurisprudential rhetoric about due process, equal protection, and gay and lesbian civil liberties litigation to consider the intersectional relationships between race and sexuality in jurisprudential civil rights rhetoric.
127. Mohr, “The Shag-A-Delic Supreme Court,” 393.
128. Kennedy, Lawrence v. Texas, 14.
129. Perry v. Schwarzenegger, 117–18.
130. Perry v. Schwarzenegger, 118.
131. Perry v. Schwarzenegger, 118, also Varnum v. Brien, 49.
132. Perry v. Schwarzenegger, 117. See also Black's Law Dictionary, s.v. “strict scrutiny.”
133. Puar, Terrorist Assemblages, 222.
134. See for example Justice Cady's explanation of why the Iowa Court chose to apply “heightened” rather than “strict scrutiny” or the “rational basis test.” Varnum v. Brien, 22–49. My reading of equal protection here is also indebted to Kimberle Crenshaw's characterization of the “single-axis” disciplining of Black women petitioners to U.S. anti-discrimination statutes. Crenshaw, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics,” The University of Chicago Legal Forum (1989), 140–45.
135. Gayatri Chakravorty Spivak, “French Feminism Revisited: Ethics and Politics,” Feminists Theorize the Political, ed. Judith Butler and Joan W. Scott (New York and London: Routledge, 1992), 70.
136. Judith Butler, “Contingent Foundations: Feminism and the Question of ‘Postmodern,’” Feminists Theorize the Political, ed. Judith Butler and Joan W. Scott (New York and London: Routledge, 1992), 16, and Butler, Undoing Gender, 4–10.
137. Perry v. Schwarzenegger, 120.
138. Perry v. Schwarzenegger, 120.
139. Romer v. Evans, 517 US 620 (1996).
140. Perry v. Schwarzenegger, 135. On February 7, 2012, the Court of Appeals for the Ninth Circuit affirmed the judgment of the District Court in what is now Perry v. Brown. As in Walker's opinion, the Ninth Circuit issued a narrow equal protection ruling grounded in an application of Romer v. Evans. But unlike Walker, Circuit Judge Hawkins Reinhardt does not also issue a due process finding, and he does not provide a clear justification for applying a higher level of scrutiny than rational basis in hypothetical future cases. Reinhardt does not issue a finding with respect to the “rights of same-sex couples to marry,” but rather holds that, following Romer, the Equal Protection Clause requires at least a rational basis for the statutory removal of a right previously granted a class of persons—as the right to marry had been granted same-sex couples in California before Proposition 8. As Reinhardt himself suggests, his more narrow ruling may heighten the significance of substantive due process analysis if the Supreme Court chooses to grant review of Perry v. Brown. Reinhardt's opinion can be read as doing less work than Walker's to effect a substantive increase in gay and lesbian civil rights. I suggest, however, that the Ninth Circuit's more narrow ruling actually re-opens some possibilities for radical queer interpretation of the Fourteenth Amendment—possibilities that at least the equal protection analysis in Walker's District Court ruling curtailed. Perry v. Brown (9th Cir., Case No. 16696, February 7, 2012): 79–80; Mike Sacks, “Gay Marriage Ruling, Written To Appeal To Justice Kennedy, Could Backfire,” Huffington Post Politics (February 10, 2012), http://www.huffingtonpost.com/2012/02/10/gay-marriage-ruling-justice-kennedy-appeal-9th-circuit_n_1268676.html.
141. Perry v. Scwarzenegger, 135.
142. Black's Law Dictionary, s.v. “strict scrutiny.”
143. Perry v. Schwarzenegger, 110.
144. Perry v. Schwarzenegger, 110.
145. Perry v. Schwarzenegger, 114, 117.
146. Perry v. Schwarzenegger, 114.
147. Butler, Undoing Gender, 104–06. See also Richard Kim and Lisa Duggan, “Beyond Gay Marriage,” The Nation (July 18, 2005), http://www.thenation.com/article/beyond-gay-marriage
148. Puar, Terrorist Assemblages, 222.
149. Kent A. Ono, “From Nationalism to Migrancy: The Politics of Asian American Transnationalism,” Communication Law Review 5 (2005): 7.
150. Hasian, Condit, and Lucaites, “The Rhetorical Boundaries of ‘the Law,’” 328.
151. Hasian, Condit, and Lucaites, “The Rhetorical Boundaries of ‘the Law,’” 327.
152. Hasian, Condit, and Lucaites, “The Rhetorical Boundaries of ‘the Law,’” 328.
153. John Louis Lucaites and Celeste Michelle Condit, “Introduction,” Contemporary Rhetorical Theory: A Reader, ed. John Louis Lucaites, Celeste Michelle Condit, and Sally Caudill (New York: The Guilford Press, 1999), 2.
153. Lucaites and Condit, “Introduction,” 4.
154. Lucaites and Condit, “Introduction,” 2.
156. Hasian, Condit, and Lucaites, “The Rhetorical Boundaries of ‘the Law,’” 329.
157. Goodnight, “The Metapolitics of the 2002 Iraq Debate,” 69.
158. Jasinski, Sourcebook on Rhetoric, 111–12, 112n2.
159. Hasian, Condit, and Lucaites, “The Rhetorical Boundaries of ‘the Law,’” 329.
160. Puar, Terrorist Assemblages, 222.
161. Rachel Alsop, Annette Fitzsimons, and Kathleen Lennon, Theorizing Gender (Cambridge: Polity Press, 2002), 94–96.
162. Butler, “Contingent Foundations,” 16.
163. Lloyd F. Bitzer, “The Rhetorical Situation,” in Contemporary Rhetorical Theory: A Reader, ed. John Louis Lucaites, Celeste Michelle Condit, and Sally Caudill (New York: The Guilford Press, 1999), 219.
164. See also Jasinski's discussion of “public controversy,” prudence, and contingency in “Idioms of Prudence in Three Antebellum Controversies: Revolution, Constitution, and Slavery,” in Prudence: Classical Virtue, Postmodern Practice, ed. Robert Hariman (University Park: Pennsylvania State University Press, 2003), 145–46, 177–78.
165. Hasian, Condit, and Lucaites, “The Rhetorical Boundaries of ‘the Law,’” 327.
166. Puar, Terrorist Assemblages, 222.
167. Butler, Undoing Gender, 4–10.
168. Cohen, “Keynote Address.”