Randy Barnett has an important analysis of Justice Kennedy's opinion in Lawrence v. Texas. One problem. The framers gave us a liberty right out of the tradition of British constitutionalism. Barnett and Kennedy are inserting a rationalistic post-Millian and post-Kantian liberty right -- one that imagines that "morality is the product of our reason" -- which it isn't, and a view which the framers had no part in making a part of American jurisprudence. The fantasy of constructed morality -- and constructed rights -- is a modern conceit, which the framers cannot be said to have given us as the law of the land.
Posted by Greg Ransom