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February 2004
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Gay Sex Ruling may help Drug Policy Reform

Now that I’ve got your attention… A post by Randy Barnett at the Volokh Conspiracy led me to his fascinating paper in the Cato Supreme Court Review: Justice Kennedy’s Libertarian Revolution: Lawrence v. Texas (pdf)
In it, Barnett posits that Lawrence v. Texas, as Justice Kennedy wrote the ruling, is not so much about privacy as it is about liberty.

Although he never acknowledges it, Justice Kennedy is employing
here 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.” 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….

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