Friday, 11 July 2003

Junking Footnote Four

Alex Knapp links to an excellent Randy Barnett piece at NRO explaining how Justice Kennedy’s decision in Lawrence v. Texas departs from the court’s post-New Deal attitude toward civil liberties. The teaser:

The more one ponders the Supreme Court’s decision in Lawrence v. Texas, the more revolutionary it seems. Not because it recognizes the rights of gays and lesbians to sexual activity free of the stigmatization of the criminal law — though this is of utmost importance. No, the case is revolutionary because Justice Kennedy (and at least four justices who signed on to his opinion without separate concurrences) have finally broken free of the post-New Deal constitutional tension between a “presumption of constitutionality” on the one hand and “fundamental rights” on the other. Contrary to what has been reported repeatedly in the press, the Court in Lawrence did not protect a “right of privacy.” Rather, it protected “liberty” — and without showing that the particular liberty in question is somehow “fundamental.” Appreciation of the significance of this major development in constitutional law requires some historical background.

If you’re as big a fan of the Institute for Justice as I am, you’ll know that this is a Big Deal for liberty—on par with their efforts to get the Court to revive the privileges or immunities clause.