The Constitutional Jurisprudence of Justice Kennedy on Liberty
Abstract of Constitutional Jurisprudence of Justice Kennedy on Liberty Article This article discusses how the concept of constitutionally protected liberty has been developed and applied in Justice Kennedy’s opinions on the United States Supreme Court, and how he has sought to cushion the impact on liberty of Court decisions that have sustained the exercise of governmental power in ways that limit liberty. As discussed in this article, Kennedy’s vision of the concept of liberty embodied in the Constitution derives from an understanding of 18th-century Enlightenment philosophy, based on writers such as John Locke and Adam Smith, as developed in the 19th century by writers such as John Stuart Mill. Understanding this tradition, as modified by the other restraints of an 18th-century natural law theory of judicial decisionmaking, is important to understanding how Justice Kennedy decides cases. Part II of this article discusses this natural law Enlightenment concept of liberty. Part III shows how that doctrine is reflected in the reasoning of opinions written by Justice Kennedy. Part IV addresses other aspects of an 18th-century natural law theory of interpretation that limits full elaboration of this concept of liberty in Court decisions. Part V provides a brief conclusion.
Randall Kelso. "The Constitutional Jurisprudence of Justice Kennedy on Liberty" Dartmouth Law Review 9.1 (2011): 29-77.
Available at: http://works.bepress.com/randall_kelso/6