Lawlessness Revealed: The Supreme Court's Man of Liberty Transcends Tort Law

Summary

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I. Liberty an Intrinsic Good . II. Lawlessness Revealed . III. Balancing Liberty and Care . IV. Care Authorizing Liberty .

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Lawlessness Revealed: The Supreme Court's Man of Liberty Transcends Tort Law

Assistant Dean and Associate Professor, Thomas M. Cooley Law School. Indiana University B.A. 1984; University of Michigan Law School J.D. 1987.

With what Supreme Court Chief Justice William Rehnquist would later label his "customary clarity," Justice Potter Stewart in a concurrence in the 1966 defamation case Rosenblatt v. Baer put the basis for tort law right where it has always been: The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being-a concept at the root of any decent system of ordered liberty.1

As Justice Stewart put it, the "concept" which is both "basic" to and "the root of" tort law's ordered liberty is none other than "the essential" "worth" of being. Tort laws are rooted in the intrinsic value of universal and individual being. Tort law is above all the great law of care-not care for efficiency, not care for liberty, not care for self-expression (though those attributes are certainly of value to the extent that they promote that which tort law also promotes)-but care for human life itself.

Tort law's duty of care is fully justified by the extent to which it promotes good to being because being has an essential worth beyond the measure of anything else of value. How must the law constrain us to think of one another's value? What is your measure of worth, and how must the law regard it? History judges the laws of nations on how they value life. The laws of Stalin's Soviet Union or Amin's Uganda seem not to have valued life at all, whereas the laws of Hitler's Germany regarded the lives of some as supremely valuable but the lives of others without any value- the laws of those nations properly being judged by history as abhorrent. The value of being is as undeniable to law as it is to medicine, art, literature, philosophy, and all other legitimate pursuits and professions. Good to being is at the root of tort law as surely as it is in any other field. As Justice Stewart's words above suggested, the charity, the benevolence, or, more prosaically the valuing of the good of being which define care, is the ends on which tort law depends for its justification.

Unfortunately, Justice Stewart has not had the Supreme Court's last word on tort law. The Supreme Court has, in two more recent tort cases since Rosenblatt v. Baer, rejected care for one another as the foundation of tort law and the intrinsic good. In care's place, the Supreme Court has made liberty the intrinsic good. The first such case, Bose Corp. v. Consumers Union in 1984, protected false commercial expression with the Court saying that "the freedom to speak one's mind is . . . a good unto itself . . . ."2 The second such case, Hustler Magazine v. Falwell in 1988, protected intentionally severely distressing pornographic depiction, quoting Bose Corp. and repeating that "the freedom to speak one's mind is . . . a good unto itself . . . ."3

The Supreme Court thus conceives of expression-not merely the false commercial expression in Bose Corp. v. Consumer Union but also the intentionally severely distressing pornographic expression in Hustler Magazine v. Falwell-as the ultimate (intrinsic rather than instrumental or conditional) good. This exaltation of the self over duties to one another echoed again even more recently in Lawrence v. Texas's "transcendent" "autonomy."4

Increasingly to the Court, self-expression is the intrinsic good and personal liberty the fundamental value, displacing the care tort law would ordinarily require of us for one another. The ghostly presence of the expressive self, as one writer has called it,5 more and more haunts the corridors of justice.

Of course such claims of ...

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