Publication Type: Conference Paper/Unpublished Manuscript
Review Method: Peer Reviewed
Abstract: Justice Anthony Kennedy’s opinion for the Court in Lawrence v. Texas was groundbreaking not only for overturning Bowers v. Hardwick, but also for the method of constitutional interpretation used to justify that result. This opinion explicitly rejects originalism, but it does not adopt the analysis based on the right to privacy as argued in Justice Blackmun’s dissent in Bowers. Instead, Kennedy relies on an expansive definition of liberty that substantially differs in foundations and results from the right to privacy articulated in Griswold and Roe.
This paper tracks Kennedy’s development of this alternative approach to constitutional interpretation. Part One chronicles statements made by Kennedy prior to his appointment to the Court. At that time, he rejected the terminology of the right to privacy but—unlike originalists—he defended a judicial duty to enforce the full and necessary meaning of liberty. Part Two focuses on Kennedy’s effort in Lawrence to articulate and develop this liberty-based approach in place of the right to privacy. Part Three surveys the objections to Kennedy’s approach articulated in Justice Scalia’s dissent, and examines how both opinions challenge the approach of the New Deal and Warren Courts. The paper concludes by situating Lawrence within Kennedy’s larger effort to construct a careful, reasoned balance to constitutional interpretation that seeks to avoid the excesses of both the Warren Court and the originalist reaction.

Publication Type: Conference Paper/Unpublished Manuscript
Abstract: The Supreme Court's recent decision in Lawrence v. Texas, with its recognition of a more robust liberty interest in forming one's identity through meaningful human relationships in one’s personal and private life, has drastically altered the constitutional landscape as concerns when the doctrine of unconstitutional conditions comes into play in the public employment context. This is because, in Lawrence, the Supreme Court construed an individual’s liberty interest to decisional non-interference in private affairs as a heightened one, due a more searching form of rational basis review. Consequently, a hitherto overlooked implication of Lawrence is that it almost certainly trumpets the beginning of a new era of greater privacy protection for public employees.
Because the current Connick/Pickering framework has been molded to apply to a First Amendment framework focused on the nature of the speech or expression engaged in by the employee, it is not easily applied to the Lawrence context and needs reworking to protect the constitutional interests of public employees to decisional non-interference in private affairs. Consequently, this paper for the first time proposes an original constitutional balancing analysis to more appropriately weigh a public employee's right to decisional non-interference in private affairs against the employer's right to run an efficient governmental service. This modified Pickering analysis will increase the protection for these newly emergent constitutional liberty interests.

Publication Type: Conference Paper/Unpublished Manuscript
Abstract: In this paper, I present T.E. Lawrence?s ?Science of Guerilla Warfare? in order to highlight some of the modern challenges facing American grand strategy. T.E. Lawrence gained fame for his involvement in the successful Arab Revolt against the Turks during the First World War. As a result of his experience, Lawrence listed five requirements for a successful guerilla campaign: 1) An unassailable physical or emotional base, 2) A friendly local population, 3) Mobility and endurance, 4) Ability to inflict damage on the enemy?s ability to communicate and 5) An enemy too few in number to effectively occupy the territory in question. Today, the insurgency in Iraq meets several, if not all, of these criteria. Thus, the difficulties of the American-led counter-insurgency are not surprising to those familiar with Lawrence. More interesting, however, is the relevance of Lawrence?s thesis to American grand strategy in relation to North Korea, China and non-state enemies such as Al-Qaeda. Despite a clear advantage ?on paper,? the United States faces significant long term disadvantages vis-à-vis all three rivals. These disadvantages, I argue, are rooted in the same dynamics that allowed the inferior Arab forces to inflict defeat after defeat upon the occupying Turkish armies. I conclude this paper by briefly identifying some strategies for ?cracking? Lawrence?s Science of Guerilla Warfare.

Publication Type: Conference Paper/Unpublished Manuscript
Abstract: In this paper I argue that in an attempt to avoid the criticisms of the Lochner era, the Court in Griswold used the language of privacy as a euphemism for a personal liberty interest protected by substantive due process. In Roe, the Court managed to use the clumsy Griswold framework of privacy within the context of privileged relationships to protect the decision to terminate a pregnancy. This analysis suggests that it should hardly have been surprising that the Griswold/Roe framework proved insufficient to keep the state out of the bedrooms of adults who could make no claim to a privileged relationship. Court extended a liberty protection beyond just legally recognized relationships to all intimate relationships between consenting adults. Rather than relying on the limiting principle provided by legally recognized relationships – such as that between husband and wife or doctor and patient – the Lawrence opinion limited the scope of personal liberty in three ways – one constitutional, one constitutionally derived, and one extra-constitutional. In the 2003 case of Lawrence v. Texas, which invalidated Texas' anti-sodomy law, the Court acknowledged the spatial privacy accorded the home by the Fourth Amendment, and coupled that with the right to engage in intimate association derived from the First Amendment, but limited the relational decisions to those that cause no harm to others, thus invoking an extra-constitutional limiting principle. Lawrence’s limiting principle has some resemblance to a Millian-style “no harm” philosophy, but is more narrowly tailored.

Publication Type: Conference Paper/Unpublished Manuscript
Abstract: The Supreme Court's decision in Lawrence v. Texas resembles its earlier decision in Loving v. Virginia in several interesting ways. Loving marked the crystallization of strict scrutiny for racial classifications under the equal protection clause. At the same time, it represented a turning point, as the Court moved from the completed project of suspect-classification strict scrutiny to a new project of strict scrutiny for limitations on fundamental rights as a matter of substantive due process. Lawrence may mark a similar turning point. Forty years of case law has established that the substantive reach of liberty under the due process clause extends to the way individuals choose to conduct their intimate relationships. But just as Loving was a case about inequality that informed the jurisprudence of liberty, Lawrence is a case about liberty that has important implications for the jurisprudence of equality. In fact, liberty and equality are more intertwined in Lawrence than they were in Loving. Loving could have rested entirely on the unconstitutionality of racial subordination without looking at the importance of marriage; by contrast, Lawrence's discussion of liberty would be incoherent without some underlying principle of equality for gay people. The Warren Court often espoused substantive equal protection; the Lawrence Court attacked a suspect deprivation of liberty.