Judicial Tyranny II
Brett Marston, who apparently missed the earlier installment of the Barnett-Bainbridge-CourrÃƒ¨ges-Yousefzadeh-Joyner debate because he was off playing with dolls, cites a published article by, of all people, Barnett, truly closing the loop:
Justice Kennedy is employing here what I have called a Ã¢€˜Ã¢€˜presumption of libertyÃ¢€™Ã¢€™ that requires the government to justify its restriction on liberty, instead of requiring the citizen to establish that the liberty being exercised is somehow Ã¢€˜Ã¢€˜fundamental.Ã¢€™Ã¢€™ In this way, once an action is deemed to be a proper exercise of liberty (as opposed to license), the burden shifts to the government.
The Ã¢€˜Ã¢€˜presumption of libertyÃ¢€™Ã¢€™ principle advanced by Barnett here mirrors my own view of the proper limit of state action, so I’d be reasonably happy if that principle were applied.
But here’s the problem: Nothing in the Constitution sets forth that doctrine. In its orginally ratified form of 1789, the presumption was that the several States could do essentially what they wanted with a few concessions to the federal arrangement–mainly ceding sovereignty over interstate commerce and foreign relations, plus a handful of other matters. The ratification of the Bill of Rights in 1791 enumerated several other specific liberties and also explicitly, via Amendments IX and X, reserved other rights to the States and to the people. The passage of other amendments, notably the XIVth, expanded this notion of liberty.
But what in the Constitution denies the people the right to regulate moral conduct as they see fit, so long as it doesn’t violate specific rights? And when did that interpretation take effect? Barnett is talking about the Texas sodomy case in the paragraph above. While I am more in agreement with Justice Kennedy than with the Texas legislature in this instance, it’s rather clear that nothing in the U.S. Constitution had theretofore been thought to enshrine a fundamental right to homosexual sodomy. Why then does the wisdom of Justice Kennedy take precedent over that of the elected representatives of the citizens of Texas?
I posted several times on the topic last June when Lawrence was announced. Most notable: