Not only does Kennedy not use the right to privacy argument, he categorically rejects the argument that the issue is about a "right to homosexual sodomy." Kennedy wrote:

"That statement [from the Bowers decision, framing the issue as being about a right to homosexual sodomy], we now conclude, discloses the Court's own failure to appreciate the extent of the liberty at stake. ... Their penalities [of the anti-sodomy laws] and purposes, htough, have more far-reaching consequences, touching upon the most private of human conduct ... The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. ... The liberty protected by the Constitution allows homosexual persons the right to make this choice."

As Barnett argues, Kennedy frames this in terms of a more general concept of liberty that precedes the Constitution and thus puts the burden on the state to demonstrate some compelling interest (particularly in terms of harm to innocent parties) that the law serves.

Have you read any of the transcripts of interviews with Judge Scalia?
http://www.threebadfingers.com/?p=20
Is a good place to look at it.
His feelings on judicial review and how to go about getting the things you consider to be "rights" protected by the government are most sane and most democratic.
He's not a strict constructionist, but he's against the living consitution...anyway, if you're interested, there's the link.

Its Fisking time!

"If you reread his opinion, you will see that Justice Kennedy never mentions any presumption to be accorded the Texas legislature. More importantly, he never tries to justify the right to same-sex sexuality as fundamental. 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."

So, does this mean we can all agree, now, that there is no "Right to Privacy" in the Constitution? Sweet, I win!
Having lost the "Right to Privacy" argument, liberal activists have now resorted to a "presumption of liberty" for "actions that [do not] violate the rights of others". Again, not found in the Constitution, which means it is not a constructionist argument, and relies on the personal opinions of 9 supreme court justices as what constitutes "liberty" and what constitutes "license" - how nice of them to take on that burden.

"With this as the baseline..."

Which the Professor just made up out of whole cloth...

"...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."

Which is why, in a REPUBLIC, the burden is assumed by a popular vote of elected representative to a legislature.

"Though he never acknowledges it, Justice Kennedy here is employin 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.""

I missed the Amendment that guarantees a "presumption of liberty" - could someone point it out to me? Thanks.

"All that was offered by the government to justify this statute was the judgment of the legislature that the prohibited conduct is immoral"

Umm, dude, that's how our Republic works - a duly-elected body of representatives makes the law.

" -- which for the majority (including, in this regard, Justice O'Connor) is simply not enough, standing alone, to justify the restriction of liberty."

"Majority?" What "majority"? If the "majority" of people feel this way, THERE IS A PROCESS IN PLACE TO REPEAL THE LAW. At the state level, the people can vote in new legislators. At the federal level, the states can add an amendment. THERE IS NO PLACE IN THE CONSTITUTION THAT PROVIDES THE SUPREME COURT THE RIGHT TO ARBITRARILY DECIDE WHAT THE "MAJORITY" BELIEVE!

" 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."

Again - duh! That's how our system of government is set up - if the Prof. and Justice Kennedy don't like it, they can follow THE RULES to change it - not abuse the power of the Supreme Court as personal whim!

" Such a doctrine would amount to granting an unlimited police power to state legislatures."

Its not unlimited. That's what "voting" is for. The state legislature is accountable to...(wait for it)... the PEOPLE OF THE STATE, NOT THE SUPREME COURT!

" The police power of states may be broad, but it was never thought to be unlimited"

...which is why state governments are subject to the will of the people via referendum...

" -- 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."

Correct, but irrelevant until you prove that the right to homosexual sex is a privilege or immunity granted by the United States.

Notice how little reference is actually made to the text of the Constitution? In these arguments, I'd sure like to see them actually, you know, quote something that says "presumption of liberty", or "it is the jurisdiction of the Supreme Court to..."

Yikes, that was a long comment. Otherwise, I believe that "liberty" is referenced in the Constitution's preamble, as well as a few other founding documents.

But I could be wrong. After all, the founders CLEARLY didn't think that liberty was all that important ...

Sorry, quoted too much.

And there is a difference between espousing liberty, and establishing the Supreme Court as the guarantor of their interpretation of liberty. After all, free speech is a liberty, right? So, since we have the word "liberty" in the preamble, why bother with the 1st Amendment? Must not have been really needed.

Again, see the 9th and 10th amendments. And on the flip side, we all know how important "quartering troops in private homes" is as a modern day issue, right?

Justice Anthony Keenedy seems to be believe that the only values that need be protected are his own personal values. The process of defining values is inherenty the role of the branch of government closest to the people the legislature of the several states.

Kennedy reverse the Constitution. He seems to think the powers of the several states are few and limited but the powers of the Supreme Court are many and limited. In the end, Kennedy is no more than a petty tyrant.

Kennedy is no more than a petty tyrant.

That comment reminds me of those that label the US a "Republican Theocracy" and Bush a "Fascist."

drc,

I'm about as far as you can get from a constitutional scholar, but you seem to repeat the theme that the majority of the people should be able to decide what laws should be in place through the voting process. It was my impression that one of the main roles of the judicial branch is to act as a counterbalance to the tyranny of the majority, and to prevent the exercise of majority power from infringing on the rights of the minority.

Hubris,

Ya think? :)

What the SC did in Lawrence is exactly what it's supposed to do - check the ability of the majority to, through the democratic process, make laws that are violations of liberty.

It was my impression that one of the main roles of the judicial branch is to act as a counterbalance to the tyranny of the majority, and to prevent the exercise of majority power from infringing on the rights of the minority.

LIES, LIES! ALL LIES! LIES FED TO YOU BY THE LIBERAL TEACHING ESTABLISHMENT!

By an honest reading of the Constitution, the several states have the power to discriminate on the basis of sex. The Fourteenth prohibited discrimination on the basis of race, not not sex. The Nineteeth extended the francise to women. The Equal Rights Amemdment was proposed, and rejected, to give equal rights to women.

If the several states have the power to discriminate on the basis of sex, they also have the legitimate power to discriminate on the of the sex of one's choosen sexual partner.

Now the Supreme Court isn't required to approve of this discrimination. However barring a further constitutional amendment, she has no just power to prevent it

On the other had, the state legislatures of the several state so have the power to prevent such discrimination.

Leaving aside the notion that personal liberty wasn't one of the foundational values of the Republic, a notion I find slightly bizarre, I notice that some oscial conservatives are eager to invoke the right of the majority to impose--well, pretty much whatever the majority wants, as far as gay marriage is concerned. I suspect they'd find this argument less compelling in other cases.

I don't have references handy (being at work and all), but it's always been my understanding that the framers of the Constitution were as concerned about limiting the power of the majority over the minority as they were about limiting the power of the government over the citizens generally. Isn't that sort of the point of our system of checks and balances?

And, drc, the Tenth Amendment notes that all powers not delegated to the federal government are reserved to the states or the people. The state governments do not have the power to treat their inhabitants any damn way they please, not even if the majority approves. There was some early confusion on this point, but the whole matter was clarified during the Lincoln Administration.

Ok, the Tenth Amendment reserves power to either the several states or the people. However nothing in Constitution gives the federal govenrment, of which the Supreme Court is just one branch, the power to decide which powers are reserved to several states and which to the people. As the power is specified nowhere within the Constitution, it defaults to the several states to decide, in accordance with their own state constitution and the will of the legislatures.

Today Terri Shiavo's parents appealed to the Supreme Court.

I ask all of those who contend that it's unconstitutional for the Supreme Court to interfere in states rights the following:

If the Supremes rule that Terri Shiavo's feeding tube not be removed, are the Supremes overreaching and violating Florida's states rights?

In my never humble opinion Micheal Shiavo is attempting to murder his wife, with malice aforethought. The Florida Courts are aiding and abetting Micheal. It is a shame. Terri would have more rights if she were a murder suspect.

However I don't see where this is a federal case. Then Anthony Kennedy has his own personal constitution, so no telling.