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See, e.g., AMK's decisions in Eastern Enterprises
and State Farm v. Campbell. When one adds Kennedy's opinions invalidating
laws based on, e.g., the First Amendment and principles of federalism, I
think it's a safe bet that there has never been a Justice who has more often
voted to overturn the decisions of elected officials, juries,
etc.
----- Original Message -----
Sent: Thursday, June 26, 2003 3:16
PM
Subject: Re: Bowers Overruled
I assume that David's remark was meant to be
tongue in cheeck, but it does seem to me that the Court is returning to a
broader approach to substantive due process. Are we entering a new
Lochner era? Justice Kennedy, at least, seems to be open to the
idea . . .
Rebecca E. Zietlow
Professor of Law
University of
Toledo College of Law
(419) 530-2872
[EMAIL PROTECTED]
So does this mean Marty thinks that
Lochner was correctly decided?
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
***********************************************
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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