Re: Justice Kennedy's Libertarian Revolution

[Robert Justin Lipkin]

       The processual dimension of the due process clause permits the prohibition of these rights (just not without the appropriate process) as much as their permission. I would think that a "libertarian revolution" would not be satisfied with a conception of liberty that can be easily denied merely by the appropriate process. Thus, due process clause drastically reduces the freestanding dimension of whatever substantive rights it includes.

       Further, a processual clause that distorts its own content by including a strong substantive component arguably doesn't serve well either citizens or persons. My vote would be to move substantive rights to the privileges or immunities clause. I would leave the scope of  the clause's application--citizens or persons, or of course both--to future judicial interpretation or if that fails to constitutional amendment.

Bobby Lipkin
Widener University School of Law
Delaware