Minnesota Law Review
Lawrence v. Texas 1 begins with "Liberty" and ends with "freedom." 2 For the first time in its history the Supreme Court invalidated a law criminalizing sexual conduct. Add to that sweeping statements in Lawrence celebrating individual "autonomy." 3 Consider too the Court's surprising revival of substantive due process, a doctrine entombed with musty traditions in liberty-denying decisions like Bowers v. Hardwick 4 and Washington v. Glucksberg. 5 What is more, Lawrence is not your father's substantive due process. The pre-Lawrence doctrine bifurcated the world into a large domain of almost unprotected "liberty interests" and a very small and increasingly choosy domain of strongly protected "fundamental rights." Lawrence collapsed these claims into one, liberty, by avoiding the standard levels of scrutiny. And even that is not all it did. Lawrence undermined the quaint and unprincipled distinction between personal rights (some of which were protected) and economic rights (not protected). That distinction had divided pre-New Deal America from post-New Deal America, ratifying a dramatic expansion of government power at all levels and sharply limiting judicial authority to exalt individual rights. Now all "liberty," whether of the economic or personal sort, will be protected. Henceforth, the burden rests with the government to justify its regulations or denials of liberty, not with individuals to prove their liberties are "fundamental." The bureaucrats with their stifling regulations, the lobbyists with their rent-seeking ways, and the moralists with their nosy preferences must pay heed. If the Court really means what it
Dale Carpenter, Is Lawrence Libertarian?, 88 Minn. L. Rev. 1140 (2004), available at http://scholarship.law.umn.edu/faculty_articles/142.