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A correspondent wonders if I haven't overlooked the natural-law, anti-constructivist theoretical base at the root of Barnett's own acount of liberty. I replied in this manner:

In his NRO piece, it looks like Barnett missed that also. What I'd like to know is how does Barnett square this circle -- his endorsement of Kennedy's legal opinion -- based as it is on Kantian and Millian arguments, and Barnett's own natural-law, anti-constructivist theoretical base.

In his NRO piece Barnett does say this:

The problem created by the unenumerated right of privacy is that it now required the Court to distinguish unenumerated liberties (deemed by the court to be "fundamental rights" that rebut the presumption of constitutionality) from mere "liberty interests" (that do not). Eventually, the Court settled on limiting fundamental rights to those that could be grounded in our "history and traditions" or "implicit in the concept of ordered liberty."

The more specifically you define the liberty at issue, however, the more difficult a burden this is to meet � and the more easily the rights claim can be ridiculed. "Liberty" is obviously deeply rooted in our history and traditions. A right to use contraceptives is not. Nor is almost any particular exercise of liberty, especially if it was a practice unknown at the Founding. Whenever a particular liberty is specified, therefore, it is always subject to the easy rejoinder: "Just where in the Constitution does it say that?" even though the Ninth Amendment specifies that "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

And this:

The response of judicial conservatives (not to be equated with all political conservatives) who are still rooted in the post-New Deal constitutional jurisprudence has been both entirely predictable and remarkably feeble. First, they argue that since all laws restrict some "freedom," requiring legislatures to justify to a court their restrictions on liberty would enable judges an unbridled power to strike down any laws of which they disapprove. But this is to equate "liberty" and "license," a mistake the Founders never made. Liberty is � and has always been � the properly defined exercise of freedom that does not violate the rights of others. Your right to liberty is not violated by restrictions on your freedom to rape and murder, because you have no such right in the first place.

With this as the baseline, 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. Though he never acknowledges it, Justice Kennedy here is employing 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."

What I'm suggesting here and below is that Barnett's argument contains an implicit leap from the tradition of ordered liberty ratified by the framers to a much more Millian account of liberty rights -- a liberty right in law which is built upon the frame of a rationally constructed morality. Perhaps there is not as much distance in this leap as I am inclined to think. But it's still a leap.