July 21, 2003
Liberty vs. License
Note: this is a post recovered from my old blog, before it died of an insufficient backup. Any comments/trackbacks on it have not been brought over, but can be seen with the original. The date is that of the original posting.
Randy Barnett has an excellent analysis of the Lawrence opinion. In particular, his distinction between Liberty and License: "Instead, he puts all his energy into demonstrating that same-sex sexual freedom is a legitimate aspect of liberty — unlike, for example, actions that violate the rights of others, which are not liberty but license." This is a concept too lacking in our post-New Deal courts, and one I hope to see make a comeback. I'd like to see the 9th amendment take on meaning again.
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