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.... (He notes that "license" refers to "actions that violate the rights of others.") This seems huge to me. It indicates a potential move toward a more libertarian approach to rights. I've always felt that the courts have never required much justification by the government in order for them to infringe on the non-license liberty of drug users (an even more critical instrusion when it comes to medical marijuana). Barnett notes that Kennedy never required that the sexual activity in Lawrence reach the status of a "fundamental right" but that it was an action of liberty, in which case the government failed in its responsibility to justify the practical reasons for denying that liberty. Barnett identifies the constitutional basis for a "presumption of liberty:" Finally, judicial conservatives repeatedly assert that there is no textual basis for the protection of a general right to liberty. Unlike ''privacy,'' however, ''liberty'' is mentioned explicitly in the Due Process Clauses of both the Fifth and Fourteenth Amendments, so this is a much harder argument to sustain. The judicial conservative response is to argue that liberty may properly be restricted so long as ''due process'' is followed. As Justice Scalia wrote in his dissent: ''The Fourteenth Amendment expressly allows States to deprive their citizens of liberty, so long as due process of law is provided.'' This is textually and historically wrong. Ever since the founding, ''due process of law'' has included judicial review to ensure that a law is within the proper power of a legislature to enact. Historical claims to the contrary are extraordinarily weak, relying exclusively (and ahistorically) on the seeming absence of an explicit grant of judicial power in the text. This fails to consider the original meaning of the ''judicial power'' reposed in the Supreme Court. An examination of the historical record leaves no doubt that the judicial power originally included the power to nullify unconstitutional laws--especially those that exceeded the power of the legislature.... In the end, Lawrence is a very simple, indeed elegant, ruling. Justice Kennedy examined the conduct at issue to see if it was properly an aspect of liberty (as opposed to license), and then asked the government to justify its restriction, which it failed to do adequately. The decision would have been far more transparent and compelling if Kennedy had acknowledged what was really happening (though perhaps that would have lost votes by other justices). Without that acknowledgment, the revolutionary aspect of his opinion is concealed and rendered vulnerable to the ridicule of the dissent. Far better would it have been to more closely track the superb amicus briefs of the Cato Institute, which Kennedy twice cited approvingly, and of the Institute for Justice. If the Court is serious in its ruling, Justice Scalia is right to contend that the shift from privacy to liberty, and away from the New Deal-induced tension between the presumption of constitutionality and fundamental rights, ''will have far-reaching implications beyond this case.'' For example, the medical cannabis cases now wending their way through the Ninth Circuit would be greatly affected if those seeking to use or distribute medical cannabis pursuant to California law did not have to show that their liberty to do so was somehow ''fundamental''--and instead the government were forced to justify its restrictions on that liberty. While wrongful behavior (or license) could be prohibited, rightful behavior (or liberty) could be regulated, provided that the regulation was shown to be necessary and proper. Although it may be possible to cabin this case to the protection of ''personal'' liberties of an intimate nature--and it is a fair prediction that that is what the Court will attempt--for Lawrence v. Texas to be constitutionally revolutionary, the Court's defense of liberty must not be limited to sexual conduct. The more liberties the Court 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, and undermines its vital role as the guardian of the Constitution. If the Court is true to its reasoning, Lawrence v. Texas could provide an important step in the direction of a more balanced protection of liberty that could find broad ideological support. [emphasis added] Great stuff! (Of course, maybe I'm a bit of a geek for getting off on Supreme Court analyses, but I do enjoy them, particularly when they deal with individual rights and liberty.) Personally, I'd like to see the court move toward an approach where the "presumption of liberty" would require the government to prove in all personal liberty cases an equivalent to what it must show in regulating speech content: a compelling interest and the least restrictive means for actually achieving that interest. I'd pay money to watch the government try to justify some of its drug war laws in court. Randy Barnett is one of the lead attorneys for the Oakland Cannabis Buyers Cooperative in its pending case with the federal government and for the plaintiffs in the medical cannabis case of Raich v. Ashcroft. He also coauthored an amicus brief to the Supreme Court in the case of Lawrence v. Texas.  He is a senior fellow of the Cato Institute.