Randy E. Barnett
Georgetown University Law Center
March 14, 2012
Michigan Law Review, Vol. 106, 2008
Georgetown Public Law Research Paper No. 12-042
Scrutiny Land is the place where government needs to justify to a court its restrictions on the liberties of the people. In the 1930s, the Supreme Court began limiting access to Scrutiny Land. While the New Deal Court merely shifted the burden to those challenging a law to show that a restriction of liberty is irrational, the Warren Court made the presumption of constitutionality effectively irrebuttable. After this, only one road to Scrutiny Land remained: showing that the liberty being restricted was a fundamental right. The Glucksberg Two-Step, however, limited the doctrine of fundamental rights to those (1) narrowly defined liberties that are (2) deeply rooted in tradition and history. In this Article, the author explains how the ability to define accurately almost any liberty as broad or narrow improperly gives courts complete discretion to protect liberty or not as it chooses. He then describes an alternative that is suggested by the approach taken by the Court in Lawrence v. Texas: a general presumption of liberty. Not only is such an approach practical, it is also more consistent with the text and original meaning of the Constitution than is the Glucksburg Two-Step.
Number of Pages in PDF File: 23
Keywords: Constitutional law, Individual liberties, Fundamental rights, Lawrence v. Texas
JEL Classification: K00, K1, K3Accepted Paper Series
Date posted: March 16, 2012
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