Justice Kennedy's Libertarian Revolution: Lawrence v. Texas
Randy E. Barnett
Georgetown University Law Center
Boston Univ. School of Law Working Paper No. 03-13
This brief article explains why Lawrence v. Texas could be a revolutionary case if the Supreme Court follows Justice Kennedy's reasoning in the future. As in Planned Parenthood v. Casey, Justice Kennedy finds a statute to be unconstitutional, not because it infringes a right to privacy (which is mentioned but once), but because it infringes "liberty" (a word he uses at least twenty-five times). In addition, Justice Kennedy's opinion protects liberty without any finding that the liberty being restricted is a "fundamental right." Instead, having identified the conduct prohibited as liberty, he turns to the purported justification for the statute and finds it inadequate. This represents a marked rejection of the fundamental rights jurisprudence as it has developed since Griswold v. Connecticut, and the adoption - sub silentio - of a "presumption of liberty."
Number of Pages in PDF File: 20
Keywords: constitution, liberty, privacy, fundamental rights, sodomy, unenumerated rights
Date posted: July 17, 2003
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