Scrutiny Land

23 Pages Posted: 16 Mar 2012

Date Written: March 14, 2012

Abstract

Scrutiny Land is the place where government needs to justify to a court its restrictions on the liberties of the people. In the 1930s, the Supreme Court began limiting access to Scrutiny Land. While the New Deal Court merely shifted the burden to those challenging a law to show that a restriction of liberty is irrational, the Warren Court made the presumption of constitutionality effectively irrebuttable. After this, only one road to Scrutiny Land remained: showing that the liberty being restricted was a fundamental right. The Glucksberg Two-Step, however, limited the doctrine of fundamental rights to those (1) narrowly defined liberties that are (2) deeply rooted in tradition and history. In this Article, the author explains how the ability to define accurately almost any liberty as broad or narrow improperly gives courts complete discretion to protect liberty or not as it chooses. He then describes an alternative that is suggested by the approach taken by the Court in Lawrence v. Texas: a general presumption of liberty. Not only is such an approach practical, it is also more consistent with the text and original meaning of the Constitution than is the Glucksburg Two-Step.

Keywords: Constitutional law, Individual liberties, Fundamental rights, Lawrence v. Texas

JEL Classification: K00, K1, K3

Suggested Citation

Barnett, Randy E., Scrutiny Land (March 14, 2012). Michigan Law Review, Vol. 106, 2008, Georgetown Public Law Research Paper No. 12-042, Available at SSRN: https://ssrn.com/abstract=2022167

Randy E. Barnett (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9936 (Phone)

HOME PAGE: http://www.randybarnett.com

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
480
Abstract Views
2,598
Rank
108,757
PlumX Metrics