Commentary

Kennedy’s Libertarian Revolution

This article was published in National Review Online, July 10, 2003.

The more one ponders the Supreme Court’s decision in Lawrence v. Texas, the more revolutionary it seems. Not because it recognizes the rights of gays and lesbians to sexual activity free of the stigmatization of the criminal law — though this is of utmost importance. No, the case is revolutionary because Justice Kennedy (and at least four justices who signed on to his opinion without separate concurrences) have finally broken free of the post-New Deal constitutional tension between a “presumption of constitutionality” on the one hand and “fundamental rights” on the other. Contrary to what has been reported repeatedly in the press, the Court in Lawrence did not protect a “right of privacy.” Rather, it protected “liberty” — and without showing that the particular liberty in question is somehow “fundamental.” Appreciation of the significance of this major development in constitutional law requires some historical background.

FUNDAMENTAL-RIGHTS JURISPRUDENCE & THE NEW DEAL
At the end of the 19th century, as the so-called “Progressive” movement grew, legislation was passed at the state level regulating and restricting economic activity. At the same time, morals legislation became much more pervasive, though often falling under the rubric of “public health” — what historian Ronald Hamowy has called the “medicalization of sin.” All this was part of an intellectual and political movement to improve upon the result of personal and economic choices by aggressively using government power to improve the general welfare.

Around the turn of the 20th century, the Supreme Court sporadically resisted this movement, striking down some (but far from all) laws restricting economic activities, and also state laws that, for example, prohibited private Catholic schools. The Court was sharply criticized by Progressives at the time for being “activist” and political, though even some constitutional historians on the left today, such as Howard Gillman, acknowledge the continuity between the principles of the Founding and what the Progressive-era Supreme Court was trying to do in circumscribing state power.

With the Great Depression came the New Deal, which proposed similar measures at the national level. The story of how the Supreme Court came to reverse itself and eventually uphold this legislation as constitutional is fascinating, but too complicated to try to summarize here. (The best book on this is Rethinking the New Deal Court, by University of Virginia legal historian Barry Cushman.) Suffice it to say that ever since U.S. v. Carolene Products (1938), legislation was supposed to be presumed constitutional unless one of the three exceptions in its famous “Footnote Four” was satisfied. Heightened scrutiny would be given to a statute that (a) “appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments,” (b) interfered with the political process, or (c) messed with a discrete and insular minority. This allowed the court to uphold economic regulation, while preserving judicial review of enumerated rights such as freedom of speech and of the press. (The fact that the right to bear arms — explicitly mentioned in the Second Amendment — has not been judicially protected, shows the ideological nature of this maneuver.) Ironically, no one has been more stalwart in allegiance to the Roosevelt-New Deal judicial philosophy of Footnote Four than today’s judicial conservatives, such as Robert Bork.

ENTER THE “RIGHT OF PRIVACY”
In Griswold v. Connecticut (the 1965 contraceptives case), the Court struck down as unconstitutional a state ban on the sale and use of contraceptives. Writing for the Court, Justice Douglas (a Roosevelt appointee) held that the law violated what he called the “right of privacy” that he said could be discerned in the “emanations” and “penumbras” of the enumerated rights, such as the right to be free from unreasonable searches. Douglas was obviously struggling to stay within the first exception to the presumption of constitutionality specified in Footnote Four — in which only rights enumerated in the Constitution would merit protection — and to avoid opening up other forms of liberty to judicial scrutiny.

Had Douglas grounded the decision in “liberty” (which is mentioned in the text) rather than “privacy” (which is not), he would have risked undoing the strong deference to Congress and state legislatures that he and his fellow-New Deal justices had previously established. On the other hand, by narrowly construing the unenumerated right being protected, Douglas ensured that abortion and procreative rights were viewed as special-interest rights. Had they rested on a general right to liberty, rather than on the more narrow right to privacy, they would more likely have received broader support from those who wanted to see their favored liberties protected as well.

ENTER “FUNDAMENTAL RIGHTS” V. “LIBERTY INTERESTS”
Emanations and penumbras could not conceal, however, that the protection of an unenumerated right of privacy was outside the framework of Footnote Four. The beauty of the Footnote Four solution is that it limited judicial review to enumerated rights, while allowing government free rein in the economic sphere. The problem created by the unenumerated right of privacy is that it now required the Court to distinguish unenumerated liberties (deemed by the court to be “fundamental rights” that rebut the presumption of constitutionality) from mere “liberty interests” (that do not). Eventually, the Court settled on limiting fundamental rights to those that could be grounded in our “history and traditions” or “implicit in the concept of ordered liberty.”

The more specifically you define the liberty at issue, however, the more difficult a burden this is to meet — and the more easily the rights claim can be ridiculed. “Liberty” is obviously deeply rooted in our history and traditions. A right to use contraceptives is not. Nor is almost any particular exercise of liberty, especially if it was a practice unknown at the Founding. Whenever a particular liberty is specified, therefore, it is always subject to the easy rejoinder: “Just where in the Constitution does it say that?” even though the Ninth Amendment specifies that “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

KENNEDY’S SWITCH FROM PRIVACY TO LIBERTY
In Planned Parenthood v. Casey (1992), Justice Kennedy began to escape from this New Deal-era box in the part of the coauthored opinion commonly attributed to him. (Justice Souter is credited with the discussion of stare decisis — properly ridiculed by Justice Scalia in his Lawrence dissent — and Justice O’Connor with the discussion of “undue burden,” her hallmark.) In his part of the joint opinion, 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.

Resting abortion rights on liberty, as opposed to privacy, was newsworthy, but I seemed to be among the only one to get the news. To this day, everyone still talks of the “right of privacy,” not the “right of liberty.” Until Lawrence, the question for me was whether this right to liberty would ever be seen again, since it has not made another prominent appearance until now. But what an appearance!

Unlike in Casey, now Justice Kennedy is writing for a majority of the Court (not including Justice O’Connor, who concurred only in the result), rather than solely as part of a trio. Liberty, not privacy, pervades this opinion like none other, beginning with the very first paragraph:

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.

Other examples abound:

We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution… .

There are broad statements of the substantive reach of liberty under the Due Process Clause in earlier cases, including Pierce v. Society of Sisters, 268 U. S. 510 (1925), and Meyer v. Nebraska, 262 U. S. 390 (1923); but the most pertinent beginning point is our decision in Griswold v. Connecticut, 381 U. S. 479 (1965)… .

In discussing Griswold, Justice Kennedy puts rhetorical distance between the decision in Lawrence and the right of privacy protected in Griswold:

The Court [in Griswold] described the protected interest as a right to privacy and placed emphasis on the marriage relation and the protected space of the marital bedroom.

Indeed, the “right of privacy” makes no other appearance in this opinion (apart from a quotation from a previous case). Even Justice Kennedy’s rejection of the argument from stare decisis rests on the centrality of liberty.

In Casey we noted that when a Court is asked to overrule a precedent recognizing a constitutional liberty interest, individual or societal reliance on the existence of that liberty cautions with particular strength against reversing course… . The holding in Bowers, however, has not induced detrimental reliance comparable to some instances where recognized individual rights are involved.

Liberty, not privacy, is doing all the work here. Indeed, the word “privacy” appears just four times in the opinion — two of which are in a quotation from a previous case and a third in a quote from the grant of cert. The fourth and only other use is Justice Kennedy’s characterization of Griswold, quoted above.

A “PRESUMPTION OF LIBERTY”
In addition — and as the dissent notices — now there is no pretense of a “fundamental right” rebutting the “presumption of constitutionality.” If you reread his opinion, you will see that Justice Kennedy never mentions any presumption to be accorded the Texas legislature. More importantly, he never tries to justify the right to same-sex sexuality as fundamental. Instead, he puts all his energy into demonstrating that same-sex sexual freedom is a legitimate aspect of liberty — unlike, for example, actions that violate the rights of others, which are not liberty but license.

With this as the baseline, the onus then falls on the government to justify the restriction of liberty. Once an action is deemed to be a proper exercise of liberty (as opposed to license), the burden shifts to the government. Though he never acknowledges it, Justice Kennedy here is employing what I have called a “presumption of liberty” that requires the government to justify its restriction on liberty, instead of requiring the citizen to establish that the liberty being exercised is somehow “fundamental.”

All that was offered by the government to justify this statute was the judgment of the legislature that the prohibited conduct is immoral — which for the majority (including, in this regard, Justice O’Connor) is simply not enough, standing alone, to justify the restriction of liberty. Why not? Because this judgment of immorality means nothing more than that a majority of the legislature disapproves of this conduct, which would be true whenever a legislature decides to outlaw something. Such a doctrine would amount to granting an unlimited police power to state legislatures. The police power of states may be broad, but it was never thought to be unlimited — although until passage of the Fourteenth Amendment, the federal government had no jurisdiction to protect the privileges or immunities of citizens from infringement by their own states.

THE RESPONSE TO JUDICIAL CONSERVATIVES
The response of judicial conservatives (not to be equated with all political conservatives) who are still rooted in the post-New Deal constitutional jurisprudence has been both entirely predictable and remarkably feeble. First, they argue that since all laws restrict some “freedom,” requiring legislatures to justify to a court their restrictions on liberty would enable judges an unbridled power to strike down any laws of which they disapprove. But this is to equate “liberty” and “license,” a mistake the Founders never made. Liberty is — and has always been — the properly defined exercise of freedom that does not violate the rights of others. Your right to liberty is not violated by restrictions on your freedom to rape and murder, because you have no such right in the first place.

This is not to say that liberty may never be regulated (as opposed to being prohibited outright). It is only to say that the existence of a right to liberty places a burden on the government to justify any regulations of liberty as necessary and proper. Wrongful behavior that violates the rights of others may justly be prohibited without violating liberty rights — though “wrongful” does not equal “immoral.”

Which brings me to the second judicial-conservative objection: The majority’s position, they say, rejects any moral content of law. This is false. Wrongful behavior that violates the rights of others may justly be prohibited without violating the liberty rights of others. Because it is usually (though not always) immoral to violate the rights of others, the entirely justified prohibition of wrongful behavior also, therefore, necessarily prohibits some immoral behavior as well. But not all ostensibly immoral behavior is also unjust or wrongful, as Aquinas recognized when he wrote:

Now human law is framed for a number of human beings, the majority of which are not perfect in virtue. Therefore human laws do not forbid all vices, from which the virtuous abstain, but only the more grievous vices, from which it is possible for the majority to abstain, and chiefly those that are to the hurt of others, without the prohibition of which human society could not be maintained; thus human law prohibits murder, theft and the like.

Finally, judicial conservatives say that there is no textual basis for the protection of a general right to liberty. Unlike “privacy,” however, both Due Process clauses explicitly mention “liberty.” The judicial-conservative response to this is to argue that liberty may properly be restricted so long as “due process” is followed. As Justice Scalia wrote in his dissent:

The Fourteenth Amendment expressly allows States to deprive their citizens of liberty, so long as due process of law is provided. (his emphases)

This is wrong on two counts.

First of all, the “due process of law” includes judicial review. And judicial review includes an examination of whether the government is acting within its delegated powers. That is why, in U.S. v. Lopez and U.S. v. Morrison, the Supreme Court could properly strike down a federal statute that exceeded the power of Congress under the Commerce Clause.

Second, both the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment authorize the protection of unenumerated (and unenumerable) liberty rights “retained by the people.” The Ninth protects against federal violations of liberty rights; the Privileges or Immunities Clause protects against violations by states like Texas of liberty rights plus the Bill of Rights and other privileges or immunities of its U.S. citizens.

Judicial conservatives move heaven and earth to excise these two provisions from the Constitution, because they think neither is definite enough to confine judges — a charge that is untrue if one relies on the original meaning of these provisions. But disregarding the text of the Constitution because it does not comport with your vision of the “rule of law” is as much judicial “activism” — if one must use this phrase — on the right, as it is when the Left discards the text because it does not meet their vision of “Justice.” In either case, judges are substituting for the text something they prefer, which in this case is silence where the Constitution is in fact speaking quite eloquently.

REMARKABLY SIMPLE RULING
In the end, Lawrence is a very simple ruling. Justice Kennedy examined the conduct at issue to see if it was properly an aspect of liberty (as opposed to license), and then asked the government to justify its restriction, which it failed adequately to do. The decision would have been far more transparent if Justice Kennedy had acknowledged what was really happening (though perhaps this would have lost some votes by other justices). Without this acknowledgement, the revolutionary aspect of his opinion is concealed, and it is rendered vulnerable to the ridicule of the dissent. Far better would have been to more closely track the superb amicus brief of the Cato Institute which he twice cites approvingly.

If the Court is serious, the effect on other cases of this shift from “privacy” to “liberty,” and away from the New Deal-induced tension between “the presumption of constitutionality” and “fundamental rights,” could be profound. For example, the medical-marijuana cases now wending their way through the Ninth Circuit would be greatly affected if those seeking to use or distribute medical marijuana pursuant to California law did not have to show that their liberty to do so was somehow “fundamental” — and if the government was forced to justify its restriction on that liberty. While wrongful behavior (license) could be prohibited, rightful behavior (liberty) could be regulated provided that the regulation was shown to be necessary and proper.

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.

Randy Barnett is the Austin B. Fletcher Professor at Boston University School of Law and a senior fellow of the Cato Institute.