Kennedy’s Libertarian Revolution. Lawrence’s reach.

National Review Online ^ | July 10, 2003 | Randy E. Barnett

[Sandy]

You'll like this.

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[freekitty]

They want equality which is equal to slavery. The more equality; the less freedom one has. You have less opportunity to think freely, upperward mobility, create, etc. It is all stiffled with equality.

Which would you choose? The freedom to make the life you want or to be smothered just like everyone else?

[Rodsomnia]

Liberty or Privacy-whatever? It's too bad those jurists don't have the same attitude with my wallet as with my penis.

[ModelBreaker]

Interpreted this way, Lawrence is a prescription for judicial dictatorship. There are no limits remaining and all tether to the reality of the constitution has been severed.

Any act that 5 old guys or girls think is cool is now constitutionally protected.

[sd-joe]

>> "Interpreted this way, Lawrence is a prescription for judicial dictatorship."

I don't see how you can reach that conclusion. The Lawrence ruling is about a specific Texas law.

It is interesting to view judicial rulings through the prism of protecting individual liberty from government interference. This is obviously a very libertarian (small l) point of view.

The difficulty in this approach is determining when an action does NOT hurt others, and is thus a protected liberty, and when it DOES hurt others and is thus a proscribed "license".

[swilhelm73]

Wonderful, now a judge can, and most leftist ones will, claim the 9th Amendment to strike down *any* law he wants to, and doesn't even have to pull the old BS routine about penumbras!

A right to sodomy wasn't noticed in the Constitution for 200 years, but since leftists want such a right now, the founders must have meant to include it anyway.

Hey, maybe Justice Souter can find a right to pedophilia and Justice O'Connor can find a right to stick forks in babies heads *after* birth. I'm sure the Founders meant to include both of those 'rights' too.

Liberals can't win a majority to legislate so now they are confined to dictating from the bench. Libertarians, knowing leftists will throw them the bone of drug legalization, are along for the ride. Aren't these wonderful times.

Those poor benighted idiots who worked on the ERA amendment or the HRL Amendment. Little did they know all it takes is five justices to change the Constitution, but a supermajority in the legislature and states.

[tpaine]

Thanks Sandy. This article is definitive, - the best to date on Lawrence, and a definite bookmark.

I like his idea that it could help resolve our political deadlock:

"For Lawrence v. Texas to be constitutionally revolutionary, however, the Court's defense of liberty must not be limited to sexual conduct. The more liberties it protects, the less ideological it will be and the more widespread political support it will enjoy.
Recognizing a robust "presumption of liberty" might also enable the court to transcend the trench warfare over judicial appointments.

Both Left and Right would then find their favored rights protected under the same doctrine.
When the Court plays favorites with liberty, as it has since the New Deal, it loses rather than gains credibility with the public."

Regards.

[tpaine]

The difficulty in this approach is determining when an action does NOT hurt others, and is thus a protected liberty, and when it DOES hurt others and is thus a proscribed "license".
7 -joe-


The law makers have to determine the 'compling reason' for a specific law, just as they should. It may be difficult, but that's their job.

If they err in their logic, the law is repugnant to the constitution, and void, -- just as Justice Marshall observed back in Marbury v Madison, 1803.

[sd-joe]

Good point.

[Cultural Jihad]

500,000 needless deaths is a pretty compelling reason. Now all Dr. Kevorkian has to do to legally help people commit suicide is to prescribe homosexual sodomy, until the activist judges find an inalienable right to an early death, slavery to vice, and the pursuit of unneeded suffering.

[marktwain]

Little did they know all it takes is five justices to change the Constitution, but a supermajority in the legislature and states.

It is hard to believe that since it has been self evident since 1934. The constitution underwent a radical transformation during the Roosevelt years, as noted in this article. In just a few years 1934-44, the Supreme Court reversed itself in a huge number of important cases, giving the Federal and State governments enormous power to regulate and control nearly all economic activity, which the court had found expressly unconstitutional only a few short years previously.

[tpaine]

Fresh meat for you anti-libertarians!

Show us what you got!
-- Refute some legal reasoning for a change, instead of spouting your usual rhetorical pap generaities.

[Intolerant in NJ]

Now all Dr. Kevorkian has to do to legally help people commit suicide is to prescribe homosexual sodomy...he doesn't even have to do this, as long as he and another consenting adult do whatever he has to do to terminate the life of that other adult in private...it will be interesting to see what kind of contortions the Court goes through to maintain the ban on assisted suicide given their recent ruling on "liberty", if indeed they even try to....

[Cultural Jihad]

... it will be interesting to see what kind of contortions the Court goes through to maintain the ban on assisted suicide given their recent ruling on "liberty", if indeed they even try to....

In essence they have nullified the Declaration of Independence, and while tpaine thinks it's a big boost for liberty, in reality the tyrants are salivating in the wings over a people tired of their rights.

[Swiss]

Libertarian beliefs ignore one simple fact, societies will regulate behavior.

Even the most radical of Libertarians has limits to what behavior is acceptable or not, if you gave people a questionare of a thousand different devient behaviors they would find at least one that even though it don't affect their physical well being or harm their property they would want regulated.

The question for those who truly want liberty in the long run is how to deal with the need for regulation vrs individual rights. It seems that giving 50 independent states and multiple local government increases the chance that minority rights is protected at least somewhere while majority viewpoints is also respected. With the laws being subjected to thousands of State Representives, PAC's, local movements and the will of the voters they will change more easily when needed than a national policy on morality.

If nine unelected judges can grant you your rights without question then they can take them away just as easy. Libertarians with realist beliefs should want the fight for liberty to be at the local level as a battle of ideas that they believe they can win in the political arena vrs having lawyers and judges protect our rights (anyone seriously trust a lawyer to defend liberty,anyone?)

[swilhelm73]

It is sad to see libertarians gamed so easily and completely by the hard left.

I mean, really, people who claim to be motivated primarily by the idea of as free a society as possible applauding the recent decision that mandated their rights are neither more nor less then what Anthony Kennedy or Sandy O'Conner decide they are when they wake up in the morning.

To rework a famous quote, a Supreme Court empowered to create new 'rights' you want out of thin air is equally empowered to remove the rights you currently enjoy.

[Cultural Jihad]

The Libertarians couldn't care less about the Constitution, as long as their moral-liberalism is being lauded and upheld. They would cheer at the rescinding of universal sufferage and the burning of the Capitol building so long as the toleration of sexual perversions, drug abuse, and porn were mandated by law.

[tpaine]

The difficulty in this approach is determining when an action does NOT hurt others, and is thus a protected liberty, and when it DOES hurt others and is thus a proscribed "license".
7 -joe-


The law makers have to determine the 'compling reason' for a specific law, just as they should. It may be difficult, but that's their job.

If they err in their logic, the law is repugnant to the constitution, and void, -- just as Justice Marshall observed back in Marbury v Madison, 1803.
10 -tpaine-




500,000 needless deaths is a pretty compelling reason. Now all Dr. Kevorkian has to do to legally help people commit suicide is to prescribe homosexual sodomy, until the activist judges find an inalienable right to an early death, slavery to vice, and the pursuit of unneeded suffering.


Your religious POV that all abortion is 'needless death' is not a constitutionally valid legal point, cj.
The liberty of the pregnant woman is very valid, as is pointed out in the article:


"-- Justice Kennedy refused to rest abortion rights on a "right to privacy," though this crucial move has been generally ignored. Instead he rested it on liberty, and explicitly on the Ninth Amendment:

Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects.
See U.S. Const., Amend. 9 --"


Please cj, try to argue the threads legal points for a change, and avoid your emotional outbursts.