Re: Justice Kennedy's Libertarian Revolution

[Mark Graber]

But Randy's point is interesting when combined with Jack's earlier post on the homosexual agenda.  When we combine Lawrence and Dale, it does seem that with regard to sexual orientation the center of the court, however small and unstable, is more committed to a libertarian agenda than a homosexual agenda.  Indeed, it strikes me as so obvious that the Dale/Lawrence combination is more libertarian than gay rights oriented as to raise all the questions Jack asked in his original post about whey Scalia falsely refers to the judicial majority as accepting the homosexual agenda.   Mark A. Graber >>> [EMAIL PROTECTED] 07/11/03 09:32AM >>> 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)