How to Argue Liberty Cases in a Post-Kennedy World: It's Not About Individual Rights, But State Power and the Social Compact
National Lawyers Guild Review, Forthcoming
19 Pages Posted: 7 Aug 2018
Date Written: July 23, 2018
With the appointment and probable confirmation of Brett Kavanaugh to the U.S. Supreme Court, social conservatives have locked in a 5-4 majority, likely for a generation. The constitutional doctrine most likely on the brink of extinction is substantive due process: the idea that certain unenumerated privacy interests are constitutionally protected. Over the course of several decades, conservatives have drawn progressive legal thinkers and jurists into an unseemly debate about body parts and bodily functions; in this way, conservatives were winning an ideological war while losing some battles. Conservatives, by indulging fear-based arguments about abortion, sodomy, and the "homosexual agenda," made progressives focus on discrete and narrowly defined individual rights rather than on the authority, jurisdiction, and competence of the state to regulate activities that are components of citizen life--where governments have no business regulating, regardless whether those activities implicate some kind of "fundamental right." Progressive advocates must become expert on the philosophy of John Locke, using it to appeal to conservatives' stated suspicion of governmental overreach and fealty to originalism. Locke, whose writing clearly formed the basis for the words 'retained' in the Ninth Amendment and 'reserved' in the Tenth, focused on the limited power of government to interfere in the private lives of its subjects rather than the scope of the individual's jurisdiction over his or her own discrete choices. By focusing on the latter rather than the former, progressives abandoned solid ground and stepped into a minefield that conservatives had laid down; conservatives successfully framed issues around personal privacy in such a way that progressives could not ultimately win. The time is now for progressive to re-frame these issues, focusing on the broad power generally reserved to the people over their own personal and moral choices (and thus beyond the jurisdiction or reach of any government) rather than the historical or traditional views of narrow and discrete (and often personal to the point of embarrassment) "rights" or privacy interests.
Keywords: substantive due process, John Locke, Ninth Amendment, Tenth Amendment, individual rights, social compact, state power
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