Friday, July 11, 2003
A Decision Based on Liberty
Several big libertarian bloggers (Postrel, InstaPundit, et al.)have linked to this piece by Randy Barnett at National Review Online (of all places -- I guess the piece is the functional equivalent of an op-ed for them) arguing that Justice Kennedy's opinion in Lawrence v. Texas is based on a stated fundamental right to Liberty explicitly enumerated in the 9th and 14th Amendments to the US Constitution.
Barnett's conclusion is that this is the beginning of the end of court deference towards a presumption that what the government does is right, with that being replaced by the idea that citizens' exercise of their stated and unalienable right to Liberty puts the onus on the government to demonstrate that laws and regulations don't unreasonably impact that right.