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
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”
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”
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
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:
Other examples abound:
In discussing Griswold, Justice Kennedy puts rhetorical distance between the decision in Lawrence and the right of privacy protected in Griswold:
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.
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”
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
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:
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:
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
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 author of The Structure of Liberty: Justice and the Rule of Law. His forthcoming book, Restoring the Lost Constitution: The Presumption of Liberty, will be published this fall by Princeton University Press. He is a senior fellow of the Cato Institute.