March 29, 2005

Lawrence v. Texas as Revolutionary Caselaw?

The 2003 case on sodomy, Lawrence v. Texas, was a critical case for Constitutional jurisprudence. It's been mentioned before on this blog (I believe) but the media greatly misreported this case. Media outlets reported that it was based on privacy - this is because the legal community itself didn't realize the distinction between the right to privacy (from Griswold and Roe) and Kennedy's decision.

Justice Kennedy actually based the decision on "liberty." He didn't mention a fundamental liberty, like speech or assembly, but just a general right to liberty. This is quite innovative because in the decades since the New Deal the Court has not been sympathetic to the idea of general liberty. General liberty was used to strike down burdensome economic regulations, the type that FDR and others claimed were needed to get us out of the Depression (though at the time they just made unemployment and poverty worse).

In bending to the will of FDR (perhaps influenced by FDR's ominous threat to stack the Court with Justices that would vote his way) the Court threw the idea of general liberty out the window. They continued to protect the enumerated rights, but the idea of a general liberty from the 14th Amendment or the 9th Amendment was right out. The 1960s and 1970s saw abortion-related cases that first created and then expanded the idea of a right to privacy. This partially resurrected a narrow form of liberty, that generally affected marital, and subsequently also non-marital, decisions like birth control and abortion.

So everyone thought the sodomy law was overturned on the right to privacy. It was not. In Kennedy's majority opinion, he cited the nature of sodomy as private conduct, but the reason it was overturned was simple liberty. Of course, if the Court were to repeat this type of decision outside the area of sexual intimacy, it ould be both surprising and meaningful to constitutional jurisprudence. As of now, it may just be a fluke.

Randy Barnett noticed the distinction between privacy and liberty and has spoken of it since the decision came down. He uses a wonderful anaology to explain to a colleague why Justice Kennedy's decision is a departure from prior caselaw. The essay is a good read, fairly concise, and is only somewhat jargon-laden (though no more than necessary). Click on through to read it.


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