Re: Justice Kennedy's Libertarian Revolution

[Randy Barnett]

Jack wrote:   "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."   I do not really disagree, which is why I titled my piece "Justice KENNEDY'S Libertarian Revolution."  I was not making a prediction.  Rather, my argument was that IF they took seriously in the future the approach actually taken in Lawrence, then it would be revolutionary.  Of course, the safe money is always that they won't.    As for the more technical issues raised by Bobby Lipkin, a few are addressed in my NRO piece, others in the amicus briefs by Cato (written by Bill Eskridge and Bob Levy) and the Institute for Justice (written by Dana Berliner and me), but all will be revealed and completely justified to everyone's satisfaction in Restoring the Lost Constitution: The Presumption of Liberty (Princeton forthcoming).  For details see:   http://pup.princeton.edu/titles/7648.html   Now back to the page proofs.   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)     -----Original Message----- From: Discussion list for con law professors [mailto:[EMAIL PROTECTED] On Behalf Of Jack Balkin Sent: Friday, July 11, 2003 9:33 AM To: [EMAIL PROTECTED] Subject: Justice Kennedy's Libertarian Revolution       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)