Justice Kennedy's Libertarian Revolution: Lawrence v. Texas
-Randy Barnett calls the decision in Texas v. Johnson a constitutional revolution because it assumes a presumption of liberty rather for individuals instead of a presumption of constitutionality for laws. The decision also expands the unenumerated right used to justify Griswold from a right to privacy to a general right to liberty.
Changing Perspectives on Liberty
-The court broke with tradition by not assuming constitutionality of a statute without calling the issue to be the violation of a fundamental right
-Traces the history of the assumption of constitutionality from the New Deal court to the present. This assumption was a shift from earlier decisions like Lochner that placed the burden on the states. In Footnote Four of his majority decision in Carolene Products, Justice Harlan Stone created the precedent that legislation would always maintain the assumption of constitutionality unless the statute involved the personal freedoms of the first ten amendments, restricted the political process or involved "discrete and insular minorities." At the time this seemed to rectify the incompatibility of the reversal of Lochner (allowed for economic intervention) and the protection of personal freedoms (so-called fundamental rights).
-In the 1960's, however, the court took this protection of fundamental liberties to a new level when it asserted the unenumerated right to privacy in justifying its decision in Griswold. Barnett argues that Justice Douglas created the right to privacy rather than base his decision in general "liberty" because this would have risked undoing the strong deference the court had recently been giving to Congress and state legislatures.
-By extending the reach of Footnote Four, Justice Douglas created the tricky situation in which it was up to the court to guarantee which unenumerated rights were implicitly protected by the Constitution. The court established the precedent that such decisions would be based in "our traditions and history." This historical approach led to the court to uphold a Georgia law criminalizing sodomy in 1986 (Bowers v. Hardwick). Barnett sees error in this logic because it is difficult to argue for an implicit right to sodomy in the Constitution, but incredibly easy to see a general right to the protection and preservation of liberty.
The Presumption of Liberty
-It is in a similar vain that Justice Kennedy nullifies the decision in Bowers with his majority opinion in Lawrence. He argues while that the precedent set by Griswold was ostensibly a right to privacy, it was actually based in a right to liberty. Justice Kennedy makes no mention of fundamental rights or an assumption of constitutionality and instead focuses his discussion upon the legitimacy of a liberty practiced between consensual adults that has no impact on others. This decision breaks through the framework of Footnote Four and expands far beyond the right of privacy in Griswold. Rather than force the appellant to prove that the liberty at issue is fundamental this decision places the burden upon the state to justify its restriction of general liberty. Randy Barnett sees the Kennedy position as now creating a "presumption of liberty" in judicial review.
Defenses to Conservative Criticism
1. This decision does not mean that liberty cannot be regulated, merely that it cannot be outlawed. Right of liberty protects liberty narrowly and cannot be extended to protecting license. There still is no license to practice liberty that infringes upon the liberty of others (rape, murder, etc.)
2. The decision does not remove all morality from law. Instead it asks for the legislature to use more than morality to justify actions to protect against a tyrannical majority.
3. There is a textual basis for liberty because it is found in the Due Process Clause.