Continuing this discussion, Richard Reinsch has this post at Liberty Law Blog: Dissenting from Natural Rights Nationalism: A Reply to Randy Barnett. The core of the response is pretty much summed in this sentence: "So if judges, on the basis of a robust, natural-rights-protecting Privileges or Immunities Clause, can nullify state laws conflicting with said rights, we still need to know how judges will identify these rights." And in conclusion:
Justice Kennedy has said that prohibitions on the legal recognition of gay marriage are basically a pretextual basis for discrimination. He is dealing, in effect, with bigots all the way down. Is Kennedy right? If so, then aren’t we right back to the point I made in my initial post: ever new dimensions of liberty arise, and a wise justice knows of their substance.
We are told that a philosophy of judicial engagement will not lead to dueling natural rights jurists usurping republican government. I won’t believe this until they tell me what rights they see.
Posted at 9:55 AM