Re: Justice Kennedy's Libertarian Revolution

[Robert Justin Lipkin]

In a message dated 7/12/2003 11:12:39 AM Eastern Daylight Time, [EMAIL PROTECTED] writes:

No doubt I'm missing something, but doesn't the P&I argument still suffer from being limited to "citizens"?

       I'm not sure how this is relevant to the point I hoped to make about resurrecting the privileges or immunities clause.  I wasn't addressing the scope of the clause--to whom it applies, citizens or persons--but rather whether a "libertarian revolution" would better be conceptualized in terms of the privileges or immunities clause which I understand to include substantive rather than procedural rights. In my view, it is necessary to jump through the hoops to explain how the due process clause can house substantive components, and even if it does, how does one know which substantive components are housed there. With the privileges or immunities clause, at least as I understand it, whatever rights it houses (and of course the problem of determining which rights are there remains a problem) are substantive. Even if one understand the clause to apply to citizens only, substantive liberty seems more closely associated with privileges or immunities than with due process.  I hope I've understood your comment correctly, and that this reply is responsive to you post.

Bobby Lipkin
Widener University School of Law
Delaware