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ABSTRACT
After the Bill of Rights was added to the Constitution, the justices of the Supreme Court began to construct denotative, connotative, and metaphorical notions of “home” that flow from the First, Second, Third, Fourth, and Fifth Amendments, and, most recently, the Eighth Amendment. This article examines the Supreme Court’s rhetorical constructions of home to determine the current state of the citizen’s dwelling place regarding freedom of expression, home protection, bodily privacy, eminent domain, and homelessness. In the process, the metaphors of a home-on-the-road and the body-as-home reemerge along with implications for legal stability and inclusivity.
Acknowledgments
I wish to thank the anonymous reviewers and the editor for their constructive comments.
Disclosure statement
The author does not claim any conflicting interest.
Notes
1. Dickinson, Suburban Dreams.
2. For generations, General Electric Company has run ads claiming the “kitchen is the heart of the home” to sell its appliances.
3. Smith and Hyde, The Call.
4. Hasian, Legal Memories.
5. Gibson, Ruth Bader Ginsburg’s Legacy of Dissent.
6. Coker, “(Re) Productive Dissent.”
7. Johnson and Smith, Fear and the First Amendment.
8. Barros, “Home as a Legal Concept”; Dickinson, “The Puzzle of Constitutional Home”; Radin, “Property and Personhood”; and Stern, “The Inviolate Home.”
9. Meyer v. Nebraska, 262 U.S. 399 (1923).
10. Gitlow v. New York, 268 U.S. 652 (1925).
11. See, for example, Miranda v. Arizona, 384 U.S. 436 (1966); Pointer v. Texas, 380 U.S. 400 (1965); Gideon v. Wainwright, 372 U.S. 335 (1963).
12. Mapp v. Ohio, 367 U.S. 643 (1961).
13. In Sale v. Haitian Center Council, 509 U.S. 155 (1993) the Supreme Court upheld an executive order signed by President George H. W. Bush in 1992 that returned a boatload of Haitians to their island, refusing them asylum.
14. For a legal analysis of the naturalization process, see Mantha-Hollands, “Attachment Issues.”
15. For example, Section 702 of the Foreign Intelligence Surveillance Act allows the government to investigate inter-nation messages. According to the National Security Agency, 31,300 such messages were collected and examined in 2023, triple the number from 2022.
16. Federal Bureau of Investigation v. Fazaga, 595 U.S. ____ (2022).
17. The hermeneutic proclivities of the sitting justices are examined in Smith and Johnson, A First Amendment Profile of the Supreme Court.
18. Boyd v. United States, 116 U.S. 630 (1886).
19. Mapp v. Ohio, 367 U.S. 656 (1961).
20. Griswold v. Connecticut, 381 U.S. 495 (1965).
21. Payton v. New York, 445 U.S. 573 (1980).
22. Frisby v. Schultz, 487 U.S. 484 (1988) which extended the protections afforded in Carey v. Brown, 447 U.S. 455 (1980).
23. Dickinson, “The Fourth Amendment’s Constitutional Home.”
24. Olmstead v. U.S., 277 U.S. 478 (1928).
25. The majority’s controversial reading of the amendment is addressed by Smith, “Originalism and the Second Amendment.” See also, Langford, Scalia v. Scalia. The Third Amendment is tangentially relevant here because of its prohibition on quartering of soldiers. But there have been no significant Third Amendment rulings regarding the notion of home. For a lower court definitive ruling see Engblom v. Carey, 677 F. 2d, 957 (1982).
26. Brandies and Warren, “The Right to Privacy.”
27. United States v. Miller, 307 U.S. 174 (1939).
28. District of Columbia v. Heller, 554 U.S. 615–16, 635 (2008).
29. The amendment reads, “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”
30. In his dissent, Justice John Paul Stevens also relied on “original meaning” turning to over 100 historic documents to assess what the Framers in general and Madison in particular meant by the Second Amendment. Stevens was trying to beat Scalia at his own game.
31. Langford, Scalia v. Scalia; Howard and Segal, “An Original Look at Originalism”; Powell, “The Original Understanding of Original Intent”; and Smith, “Originalism and the Second Amendment.”
32. Heller, 554 U.S. 624–25 (2008).
33. New York State Rifle & Pistol Association v. Bruen, 597 U.S. 1 (2022).
34. Collins, “The Second Amendment as Demanding Subject.”
37. Martin v. City of Struthers, 318 U.S. 153 (1943).
38. McClain, “Inviolability and Privacy,” 203.
39. Stoner v. California, 376 U.S. 490 (1964).
40. Abington School District v. Schempp, 347 U.S. 226 (1963).
41. Tandon v. Newsom, 593 U.S. _______ (2021).
42. Florida v. Jardines, 569 U.S. 1 (2013). See also Silverman v. U.S., 365 U.S. 511 (1961).
43. See, for example, Lee v. Weisman, 505 U.S. 577 (1992); Sante Fe Independent School District v. Doe, 530 U.S. 290 (2000).
44. A football coach engaged in prayer after a football game in 2015, often surrounded by members of his team and their parents. He was terminated. However, the Supreme Court upheld his right to do so, and he was reinstated. See Kennedy v. Bremerton School District, 597 U.S. 507 (2022).
45. Poe v. Ullman, 367 U.S. 549 (1960).
46. Poe v. Ullman, 551 (1960).
47. United States v. Dunn, 480 U.S. 300 (1987).
48. Minnesota v. Carter, 525 U.S. 99 (1998).
49. Payton v. New York, 445 U.S. 590 (1980).
50. Martin v. City of Struthers, 318 U.S. 141 (1943).
51. Frisby v. Schultz, 487 U.S. 488 (1988).
52. Minnesota v. Carter, 100 (1998).
53. Minnesota v. Carter, 106 (1998). Dating back to the Magna Carta and in many of the cases reviewed in this essay, the use of the masculine pronoun predominates.
54. Horton v. California, 496 U.S. 128 (1990).
55. New York v. Ferber, 458 US. 747 (1982).
56. Stanley v. Georgia, 394 U.S. 565 (1969). I note again the masculine bias in the wording of the opinion.
57. Miller v. California, 413 U.S. 15 (1973).
58. The same model was used during prohibition. One was not allowed to buy or sell alcoholic beverages, but one could enjoy them in the privacy of one’s home. Hence the invention of bathtub gin.
59. Griswold v. Connecticut, 381 U.S. 495 (1965).
60. Lawrence v. Texas, 539 U.S. 567 (2003) overturning Bowers v. Hardwick, 478 U.S. 186 (1986).
61. Lawrence v. Texas, 558 (2003).
62. Lawrence v. Texas, 562 (2003).
63. Biskupic, Nine Black Robes; Waldman, The Supermajority.
64. Payton v. New York, 590 (1980).
65. Hill v. Colorado, 530 U.S. 703 (2000).
66. This shrinking of privacy rights became moot when local, state, and federal governments passed laws forbidding protests at cemeteries. Smith, “Snyder v. Phelps.”
67. Cohen v. California, 403 U.S. 21 (1971) emphasis added.
68. Snyder v. Phelps, 562 U.S. 443 (2011). https://www.law.cornell.edu/supct/html/09–751.ZO.html.
69. See West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943); Lee v. Weisman, 505 U.S. 577 (1992); Moore v. Ingrebretsen, 519 U.S. 965 (1996); Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000).
70. Counterman v. Colorado, 600 U.S. _______(2023). Slip opinion.
71. Counterman v. Colorado, 600 U.S. ______ (2023).
72. Counterman v. Colorado, 600 U.S. ______ (2023).
73. Smith, “Circumventing the ‘True Threat’ and ‘Viewpoint’ Protection Tests to Deal with Persistent Campus Hate Speech.”
74. Texas v. Brown, 460 U.S. 730 (1983).
75. Richards v. Wisconsin, 520 U.S. 385 (1997).
76. Maryland v. Buie, 494 U.S. 325 (1990).
77. California v. Ciraolo, 476 U.S. 207 (1986).
78. Camara v. Municiple Court, 387 U.S. 523 (1967).
79. Saltzburg, “Another Victim of Illegal Narcotics,” 3.
80. Boyd v. U.S., 630 (1886).
81. Regarding confiscation for taxes due, the Supreme Court in Tyler v Hennepin County, 598 U.S. 631, (2023) unanimously ruled that “houses” could not be confiscated unless the house’s value was equal to or less than the taxes owed.
82. Stevens cited the precedent of Berman v. Parker, 348 U.S. 26 (1954).
83. Kelo v. City of New London, 545 U.S. 518 (2005).
84. Ironcally, after the transfer of the property, the developer ran out of funds and did not proceed with the re-development.
85. United States v. Watson, 433 U.S. 411 (1976).
86. Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984).
87. Martin v. Boise, 920 F. 3d 584 (2018).
88. Martin v. Boise, 920 F. 3d 584 (2018). The plaintiffs sought damages for violations of 42 U.S.C. Section 1983 and injunctive relief from the ordinance.
89. Grants Pass Municiple Code 6.46.355.
90. Rector, “Street Camp Limits Stay in Place,” B1, 3.
91. Oral argument hearing available at: www.oyez.org/cases/2023/23–75.
92. Oral argument hearing available at: www.oyez.org/cases/2023/23–75.
93. Oral argument hearing available at: www.oyez.org/cases/2023/23–75.
94. Oral argument hearing available at: www.oyez.org/cases/2023/23–75.
95. Bella, “GOP Lawmaker,” A2.
96. Casey, 505 U.S. 878 (1992).
97. While a majority of the members of the Supreme Court are Catholic, they were not united in the Dobbs decision.
98. Dobbs v. Jackson, 597 U.S. ______,1 (2022). Slip opinion.
99. Dobbs v. Jackson, 597 U.S. ______, 6 (2022).
100. In his concurring opinion, Justice Clarence Thomas reinforces this point by arguing that the Due Process Clause cannot be interpreted to include bodily integrity or personal autonomy in matters of the family.
101. Dobbs v. Jackson, 597 U.S. 12 (2022).
102. Dobbs v. Jackson, 597 U.S. 25 (2022).
103. Dobbs v. Jackson, 597 U.S. 7 (2022).
104. Dobbs v. Jackson, 597 U.S. 71 (2022). In his concurring opinion Justice Kavanaugh emphasizes that the Dobbs decision does not affect Griswold and its progeny.
105. Dobbs v. Jackson, dissent 4 (2022).
106. Dobbs v. Jackson, slip. Op. dissent 1 (2022).
107. Dobbs v. Jackson, dissent 2 (2022).
108. Dobbs v. Jackson, dissent 5 (2022).
109. Dobbs v. Jackson, dissent 18 (2022).
110. Dobbs v. Jackson, dissent 16 (2022).
111. Dobbs v. Jackson, dissent 3 (2022).
112. Dobbs v. Jackson, dissent 23 (2022).
113. Dobbs v. Jackson, dissent 42 (2022).
114. Langford, Scalia v Scalia.
115. For more on Supreme Court metaphors, see Tsai, “Fire, Metaphor, and Constitutional Myth-Making”; Dickerson, “<Freedom of Expression> and Cultural Meaning: Analysis of Metaphors in Selected Supreme Court Texts.”
116. Rosenberger v. University of Virginia, 515 U.S. 819 (1995).
117. Tinker v. Des Moines, 393 U.S. 503 (1969); Texas v. Johnson, 491 U.S. 397 (1989).
118. 303 Creative v. Elenis, 600 U.S. 570 (2003).
119. There are many precedents on this issue. See, for example, Miami Herald v. Tornillo, 418 U.S. 241 (1974).