I couldn't agree more. And if the Court
wishes to adopt Mark's "general theory of substantive due process," you won't
get any argument from me. But I fear that we're not seeing here a revival
of Lambert and Robinson, cf. L. Bilionis, PROCESS, THE CONSTITUTION, AND
SUBSTANTIVE CRIMINAL LAW, 96 Mich. L. Rev. 1269, and that this
Court will reserve Lawrence-like scrutiny for impositions on only certain (for
lack of a better word) "fundamental" privacy rights. Or, put another way,
this Court will quite readily find that the government does
have "good/really good/compelling reasons" for restrictions on most other
forms of liberty. See, e.g., City of Dallas v. Stanglin. But I'd
love to be proven wrong.
Marty
----- Original Message -----
From: "Mark Tushnet" <[EMAIL PROTECTED]>
To: <[EMAIL PROTECTED]>
Sent: Thursday, June 26, 2003 2:29 PM
Subject: Re: Bowers Overruled
> fundamental rights" case is mistaken. (Certainly libertarians will
> think it is.) Maybe it's a good idea to say that the government has to
> have pretty good/really good/compelling reasons to restrict any liberty
> at all (subject to the qualification that a different test should be
> applied when the Constitution specifically identifies a particular
> liberty -- e.g., property, free speech). Maybe a general theory of
> substantive due process, suitably confined, with respect to (mere)
> liberties isn't such a bad idea.
>
