In a message dated 6/26/2003 3:01:46 PM Eastern Standard Time, [EMAIL PROTECTED] writes:
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
>Maybe the strategy of insisting that Lawrence is (really) a "sort of
>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.
Professor David E. Bernstein
George Mason University School of Law
http://mason.gmu.edu/~dbernste
blog: http://bernstein.blogspot.com
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My latest book, You Can't Say That!
The Growing Threat to Civil Liberties
from Antidiscrimination Laws, will
be published in October
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