perfidy

Randy Barnett of the Volokh Conspiracy has an excellent, penetrating, and informative piece up at the National Review about the SCOTUS decision in Lawrence v. Texas. Here's the opening paragraph and two of the conclusion.

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. . . .

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.

The debate over privacy has long been misguided. The question germane to our Constitutional rights is not "does [state action x] violate our right to privacy?" Although the ninth amendment could be construed to contain such a provision, it's not clear that it does and I'm sure real actual legal scholars, of which I am not one, would be able to tell you why.

The germane question in any case-- be it bedroom behavior of any kind, medical marijuana, or the right not to be videotaped in your home-- is rather, "does [state action x] violate our right to liberty?" Barnett does an excellent job splitting the difference between liberty and license, for which reason alone you should read the article. But the more important point he makes, from where I sit, is that the Constitution includes clear instructions on how to cope with questions of thou shalt/not when it comes to consensual, individual action, and those who would fight for liberties they find important would do well to stand on that firm ground.