JUSTICE KENNEDY'S LIBERTARIAN REVOLUTION:
LAWRENCE V. TEXAS
Randy E. Barnett
Boston University School of Law Working Paper 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 Casey v. Planned Parenthood, Justice Kennedy finds
a statute to be an 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
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Randy E. Barnett Contact Information
Previously at Boston University School of Law, now
Carmack Waterhouse Professor of Legal Theory Georgetown University Law Center
600 New Jersey Ave. NW
Washington, DC 20001
Presentation and Publication Information:
"Justice Kennedy's Libertarian Revolution: Lawrence v. Texas," 2002-2003 Cato Supreme Court Review 21 (2003).
See Reply to criticism of this article, "Grading Justice Kennedy:
A Reply to Professor Carpenter," 89 Minn. L. Rev. 1500 (2005), B.U.S.L.
Working Paper 05-03 at http://www.bu.edu/law/faculty/scholarship/workingpapers/abstracts/2005/BarnettR032805abstract.html
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