No doubt I'm missing something, but doesn't the P&I argument still suffer from being
limited to "citizens"?
Bill Fisch
-----Original Message-----
From: Robert Justin Lipkin [mailto:[EMAIL PROTECTED]
Sent: Fri 7/11/2003 8:53 AM
To: [EMAIL PROTECTED]
Cc:
Subject: Re: Justice Kennedy's Libertarian Revolution
If I understand the idea of "a libertarian revolution" correctly--I
have not yet read Randy's article--it applies to emphasizing the liberty
associated with the due process clause. Right? What about grounding the revolution
in the privileges or immunities? Resurrecting the privileges or
immunities--which might be desirable in itself--might have (though not necessarily)
the added
advantage of precluding Lochnerized objections to liberty /due process
analysis. I recall Michael Perry and David Richards urging such a resurrection, and,
of course, Justice Thomas has indicated his approval of this move, but
perhaps for different reasons. Of course, one would need to argue this in greater
detail, but the privileges or immunities clause also seems a hospitable
(normative) home for both positive and negative rights, though there would certainly
be historical arguments against this.
Bobby Lipkin
Widener University School of Law
Delaware
