Randy's argument is really interesting, but for me to believe that we have
a libertarian revolution on our hands you'd have to convince me that
Justices Stevens, Souter, Ginsburg, and Breyer are libertarians. None of
them seem to be. That suggests that they signed on to the majority opinion
in Lawrence on the understanding that the Court's fundamental rights
jurisprudence was still pretty much intact. And I would bet you that
Lawrence stands for something like the proposition that the fundamental
right of privacy is extended to the formation of same-sex intimate relations.
Nevertheless, if the quartet that joined Kennedy are replaced by
libertarian Justices through the appointments process then anything is
possible.Jack Balkin
At 12:00 AM 7/11/2003 -0700, you wrote:
Date: Thu, 10 Jul 2003 15:04:10 -0400 From: Randy Barnett <[EMAIL PROTECTED]> Subject: Justice Kennedy's Libertarian Revolution MIME-Version: 1.0 Content-Type: text/plain; charset="US-ASCII" Content-Transfer-Encoding: 7bit
When Lawrence v. Texas appeared, both Mark Tushnet and Bobby Lipkin noticed the Court's shift from "privacy" to "liberty." Mark especially noticed that the burden seemed to shift to the government though only a liberty interest was identified. At the time, I was working on an essay greatly expanding upon this point for the next Cato Supreme Court Review (to which I will post the link when it is available on SSRN). In the meantime, you can read a shorter preliminary version on today's National Review Online:
http://www.nationalreview.com/comment/comment-barnett071003.asp
Here's the introduction:
"The more one ponders the Supreme Court's decision in Lawrence v. Texas, the more revolutionary it seems. Not because it recognizes the rights of gays and lesbians to sexual activity free of the stigmatization of the criminal law - though this is of utmost importance. No, the case is revolutionary because Justice Kennedy (and at least four justices who signed on to his opinion without separate concurrences) have finally broken free of the post-New Deal constitutional tension between a "presumption of constitutionality" on the one hand and "fundamental rights" on the other. Contrary to what has been reported repeatedly in the press, the Court in Lawrence did not protect a "right of privacy." Rather, it protected "liberty" - and without showing that the particular liberty in question is somehow "fundamental." Appreciation of the significance of this major development in constitutional law requires some historical background. . . . ."
Randy
_____________________________________________ Randy E. Barnett Austin B. Fletcher Professor Boston University School of Law 765 Commonwealth Ave. Boston, MA 02215 617-353-3099 (phone) 617-353-3077 (fax) http://www.RandyBarnett.com http://www.LysanderSpooner.org (Lysander Spooner page) http://www.RandyBarnett.com/SOL.htm (Structure of Liberty page)
