Re: Justice Kennedy's Libertarian Revolution

[Robert Justin Lipkin]

       If I understand the idea of "a libertarian revolution" correctly--I have not yet read Randy's article--it applies to emphasizing the liberty associated with the due process clause. Right? What about grounding the revolution in the privileges or immunities? Resurrecting the privileges or immunities--which might be desirable in itself--might have (though not necessarily) the added advantage of precluding Lochnerized objections to liberty /due process analysis. I recall Michael Perry and David Richards urging such a resurrection, and, of course, Justice Thomas has indicated his approval of this move, but perhaps for different reasons.  Of course, one would need to argue this in greater detail, but the privileges or immunities clause also seems a hospitable  (normative) home for both positive and negative rights, though there would certainly be historical arguments against this.

Bobby Lipkin
Widener University School of Law
Delaware