The fragmented liberty clause.

• Author: Brown, Rebecca L.
• Position: Fidelity, Economic Liberty, and 1937

This conference charitably opens with a gift. Its organizers begin by granting to substantive due process the right to exist. This is hot a small or insignificant gift. Political experience suggests how big a step it is for one antagonist to grant the other's right to exist. With that matter conceded, it seems, the contenders need hot fight the battle for legitimacy, but may devote all their energies to the definition of boundaries.

But this gift is a Trojan Horse; it poses a menacing challenge hidden deep within. If the proponents of substantive due process cannot defend its boundaries satisfactorily, then evidently the principle of enforceable liberty itself is at risk of being banished to oblivion with a pronouncement of illegitimacy across the board. Alan Meese admits as much:

The absence of such an explanation [for the way in which the Supreme Court has treated liberty], or, what may be worse, the provision of an explanation that will not withstand scrutiny, suggests that the distinction between personal rights and economic rights, and, with it, the legitimacy of the enterprise of substantive due process, is an illusion.(1) This Essay is an effort to rout the troops crouched in the bowels of the marvelous Horse, to challenge them with a strong offensive charge on behalf of vigorous liberty protection under the Fourteenth Amendment. More prosaically, my purpose is to suggest some of the limitations of what I will call the "conservative critique" of substantive due process, a critique taken up in Meese's paper.(2) The foundation of that critique is that, because the Framers valued some of the types of liberty that we now call economic rights, modern courts should give robust protection to these rights, and only these rights, against most types of government regulation.(3) The judiciary's failure since 1937 to do so, the critique maintains, constitutes a breach of fidelity to the Constitution itself and casts serious doubt on any judicial effort to protect liberties of any kind from state abridgment.

The conservative critique propounds impoverished notions of both liberty and fidelity. This Essay offers some reminders about the development of liberty in this country, as well as some historical, theoretical, and common sense considerations that might guide us in the development of a better approach to the protection of liberty under the Constitution.

Professor Meese is on the right track when he questions the relatively recent splitting of liberty into two distinct categories, economic and personal.(4) He correctly questions the Supreme Court's decision to apply strict scrutiny to laws curtailing personal liberties while seeking only a rational basis fort laws impinging upon economic liberties. This artificial pigeonholing--particularly when the arbitrary choice of pigeonhole has such radically significant consequences--serves neither history nor principle. Though I grant Meese this first step of his argument, my concession ends here. Meese goes astray when he suggests that the categories themselves are meaningful, but that if substantive due process is to be "principled,"(5) then the specific freedoms occupying privileged and nonprivileged positions should simply switch places. He does hot go far enough in taking on the categorical jurisprudence that characterizes modern analysis of liberty under the Due Process Clause.

In place of the dichotomous reasoning that has developed around the question of constitutional liberty, I propose a more integrated, common sense understanding of the place of liberty in the roster of individual rights protected by judicial scrutiny under the Fourteenth Amendment. A critical comment on the conservative critique of substantive due process, which would still allow for the fragmenting of liberty into two categories, is one step in the process of reaching that goal.

This Essay discusses the way in which courts have traditionally understood a constitutional claim to liberty under the Due Process Clause, suggesting that liberty did hot originate as a fragmented or hierarchical notion. Rather, liberty represented the freedom to do what individuals wished to do, without privileging some activities over others. Liberty, however, has never been understood as absolute, and thus the courts came to understand liberty as a concept shaped by the needs of the community. Accordingly, the nature of reasons that a state offers for restraining liberty is a key component of the meaning of liberty itself. Courts lost sight of this idea of liberty as a balance between individual freedom and the needs of a democratically governed society, and the protection of liberty has suffered as a consequence.

1. THE HISTORICAL MEANING OF LIBERTY

   Very early in our nation's history, and with conceptual roots reaching back to seventeenth-century English legal and political theory, state courts undertook what we might today see as a preliminary consideration of liberty as a constraint on state power.(6) At the time, it was hot phrased or conceived in those terms; only later did liberty develop into a notion of a shield that might be erected to protect the individual from the exercise of state power.(7) Instead, the focus was on the limits of state power itself.(8) The question facing early courts was where state governmental power comes from and where appropriate limits must be drawn, based on the nature of the authority to make law.(9)

   The Supreme Court contributed to this effort with its famous early decisions in Calder v. Bull(10) and Fletcher v. Peck,(11) in which the Court recognized the effect of "general principles of our political institutions" in limiting the power of government.(12) "The purposes for which men enter into society will determine the nature and terms of the Social compact...."(13) Those terms, together with the nature of a free republican society, contained some inherent limitations on what legislatures might do.(14) The precise contours of such a limitation, of course, remained to be delineated, but there was much common ground in the understanding of the role of the state.

   State courts were a much more common source of reflection upon the question of limiting government power. A helpful example is In re Vandine,(15) a Massachusetts Supreme Court opinion written in 1828. The law challenged in that case prohibited unlicensed persons from removing filth or refuse from houses in Boston.(16) Vandine, prosecuted for violating the law, did not deny that "the city may direct the time and manner of removing filth," but argued that "they have no right to say that it shall be removed only by persons having a license."(17) The court acknowledged the prevailing rule that if the restraint is "unreasonable, it is void";(18) "if necessary for the good government of the society, it is good."(19) Accordingly, "regard must be had to its object and necessity."(20) Three conclusions followed: first, "the law [was] reasonable"; second, it was "well adapted to preserve the health of the city"; and third, it was "within the power of the government to prescribe."(21) The logical relation among these three statements, all contained in a single sentence, is evident from the discussion: because the city had good reasons for passing this law, reasons that related to the common good of the city, it consequently was within the government's power.(22)

   From the vantage point of the conservative critique in 1999 certainly one could complain that Vandine's right to pursue occupation had been "trammeled by the legislature at will."(23) Even at this early point in history, however, courts recognize that rights to liberty were not absolute, but were constrained by a notion of the common good.(24) A great deal can be learned about early notions of liberty and power from this court's treatment of the license issue.

   The court in Vandine distinguished a seemingly similar case presented by the defendant, and explained why it was not controlling:

   The mayor and commonalty of London made a by-law, that no carman within the city should go with his cart, without license from the wardens of such an hospital, under a certain penalty for each offence; and it was held to be a void by-law, because it was in restraint of the liberty of the trade of a carman, and it was held to be unreasonable, because it went to the private benefit of the wardens of the hospital, and was in the nature of a monopoly.(25) Howard Gillman has insightfully pointed out a key feature of the comparison between the valid and the invalid laws discussed in Vandine:

   [I]t is clear that the distinction does not rest on the extent to which market freedom is impaired--the impairment is identical in each case--but rather on the consideration of whether the interference legitimately advances the general welfare of the community or illegitimately advances the particular welfare of private interests.(26) Two identical interferences with liberty may meet with opposite results under due process analysis depending on the state's reasons for its action.(27)

   This case quite explicitly illustrates the heart of liberty jurisprudence both before and after passage of the Fourteenth Amendment. Everything a person may wish to do can be understood to fall within the Supreme Court's own definition of "liberty": "to be free in the enjoyment of all [one's] faculties; to be free to use them in all lawful ways...."(28) The feature distinguishing valid interferences with any liberty from invalid ones is the reason the state offers for the interference. If the state articulates a valid reason to interfere with liberty, it will prevail; if it can offer no reason or only an illegitimate reason, then its law will fail. Thus, liberty is held by all for all acts, but it is "held on such reasonable conditions as may be imposed by the governing power of the State...."(29)

   This simple proposition explains why the term "liberty" was not the focus of debate or discussion in the early days...