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 of liberty."

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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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