New Article: Justice Kennedy’s Short-Lived Libertarian Revolution, And a Critique of Professor Barnett

November 24th, 2009

On SSRN (H/T Legal Theory Blog):

This paper contends that Justice Anthony Kennedy did not initiate a libertarian jurisprudential revolution following Lawrence v. Texas. The article begins with an overview of constitutional fundamental rights jurisprudence and examines similarities with libertarian theory.

The paper then assesses the legal decisions of Justice Kennedy but concludes that Justice Kennedy is not a libertarian. This provides the basis for critiquing Professor Randy Barnett’s assertion that Justice Kennedy was the instigator of a libertarian revolution in U.S. Supreme Court jurisprudence. The fact that Justice Kennedy is not a libertarian is apparent from his reasoning in the recent partial birth abortion case, Gonzales v. Carhart. The paper concludes by questioning the practical application of rigid libertarian theory to real-world judicial decision making while, at the same time, expressing concern regarding Justice Kennedy’s reasoning in Carhart.

When I see Barnett, Libtertarian, and Kennedy in one article, I’m interested.

The author takes Barnett head-on:

Randy E. Barnett proclaimed that Justice Kennedy initiated a libertarian constitutional revolution in the Court by determining that a criminal statute unconstitutionally infringed upon a right not characterized as fundamental, thereby “[bireaking free . . . of the post-New Deal constitutional tension between the ‘presumption of constitutionality,’ on the one hand, and ‘fundamental rights,’ on the “15 other ….

Part III focuses on the contention that Justice Kennedy’s opinion in Lawrence instigated a “libertarian revolution.”‘This section argues that Kennedy’s opinion may be libertarian but it is also consistent with liberalism.’ 2 Part III assesses Barnett’s initial contention and later re- treat’ 3 from the assertion that Justice Kennedy initiated a libertarian revolution in Lawrence. This article reasons that the fact that Justice Kennedy may not strongly adhere to a particular set of principles is not peculiar in a common law system. In such a context, it may be imprac- tical to even try to implement a jurisprudence that strictly adheres to any philosophical theory, particularly a theory that is as inflexible as libertarianism. This article concludes that Justice Kennedy values liberty-but a liberty more commonly accepted in popular opinion than the rigid liberty associated with libertarianism.

I find it surprising that the author did not cite Helen Knowle’s new book,The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty, once. Knowles wrote an entire book about Kennedy’s views on liberty. I saw Knowles present her new book at Cato a few months ago and I was quite impressed.

For those interested, Ilya Shapiro has a review of this book forthcoming in the Harvard Journal of Law & Public Policy.