Justice Kennedy's Libertarian Revolution: Lawrence V. Texas

20 Pages Posted: 17 Jul 2003  

Randy E. Barnett

Georgetown University Law Center

Abstract

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."

Keywords: constitution, liberty, privacy, fundamental rights, sodomy, unenumerated rights

Suggested Citation

Barnett, Randy E., Justice Kennedy's Libertarian Revolution: Lawrence V. Texas. Boston Univ. School of Law Working Paper No. 03-13. Available at SSRN: https://ssrn.com/abstract=422564 or http://dx.doi.org/10.2139/ssrn.422564

Randy E. Barnett (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9936 (Phone)

HOME PAGE: http://www.randybarnett.com

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