Ordered liberty

Ordered liberty is a concept in political philosophy, where individual freedom is balanced with the necessity for maintaining social order. In "Ordered Liberty," Randy E. Barnett examines the concept of ordered liberty and its relationship to the U.S. Constitution. He argues that the Constitution was designed to protect individual liberty within a framework of ordered liberty, which balances the need for social order with the importance of individual freedom.^[1]

Barnett contends that the concept of ordered liberty is reflected in the structure of the Constitution, which limits the powers of government and protects individual rights. He argues that the Bill of rights, in particular, embodies the concept of ordered liberty by establishing a framework of negative rights that protect individual freedom while, also recognizing the need for social order. Barnett also discusses how the concept of ordered liberty has evolved, particularly in response to changing social and political conditions.

He argues that the concept of ordered liberty has been central to many of the major constitutional debates in U.S. history, including debates over civil rights, economic regulation and national security. Overall, Barnett's article offers a thoughtful analysis of the concept of ordered liberty and its importance to the U.S. Constitution.

He argues that the concept of ordered liberty is essential to maintaining a free and just society and that it continues to be relevant to many of the most pressing issues facing the United States today.

Individuals have the right to act according to their own will but laws and institutions are necessary to prevent chaos and maintain societal stability. This concept of "ordered liberty" played a significant role in determining, which provisions of the Bill of Rights applied to the states through the due process clause of the Fourteenth Amendment.

The U.S. Supreme Court has recognized many fundamental freedoms as falling under the constitutional protection of "ordered liberty," including the freedom of association, marriage, family planning, child-rearing and education. However, the Court has also held that the Constitution protects ordered liberty and that laws made in good faith to protect public health and safety are constitutional.^[2]^[3]^[4]^[5]

Considerations of positive and negative liberty

"Ordered liberty" refers to a political philosophy that balances the concepts of positive liberty and negative liberty. Negative liberty is the absence of external constraints on the individual, while positive liberty is the ability to act on one's desires and goals. Ordered liberty acknowledges the importance of negative liberty but recognizes that this liberty can only be exercised within the constraints of a well-ordered society. At the same time, it recognizes the importance of positive liberty, but places limits on it to ensure that individual actions do not harm others or the broader social order.

This concept has been discussed by many political philosophers, including Friedrich Hayek, who emphasized the importance of negative liberty in his work "The Constitution of Liberty,"^[6] and Isaiah Berlin, who distinguished between positive and negative liberty in his essay "Two Concepts of Liberty."^[7]

Overall, the concept of ordered liberty attempts to strike a balance between individual freedom and social order, recognizing that both are important and necessary for a healthy and just society.^[8]

Historical context

In the United States, the concept of "ordered liberty" was first introduced in the majority opinion of Benjamin Cardozo in Palko v. Connecticut (1937). In his opinion, Cardozo argued that fundamental constitutional rights are not absolute and must be balanced against the societal/public welfare and the individual/personal rights provides the primary judicial recognition of ordered liberty.

Cardozo acknowledged the difficulty of achieving "proper order and coherence" and argued that some constitutionally enumerated rights are not essential to a scheme of "ordered liberty" and, therefore not incorporated in the fourteenth amendment and applied to the states. He stated that "to abolish [these rights] is not to violate a principle of justice so rooted in the traditions and conscience of our people as to be ranked fundamental."

However, Cardozo also argued that certain rights are "of the very essence of a scheme of ordered liberty". He identified "freedom of thought and speech" as an example of such a right because they constituted "the matrix, the indispensable condition, of nearly every other form of freedom."

Fourteenth Amendment of the United States Constitution

The concept of ordered liberty was the initial standard for determining what provisions of the Bill of Rights were to be upheld by the states through the Due Process Clause of the Fourteenth Amendment. The Fourteenth Amendment encompasses all of the guarantees on fundamental fairness included in, or that arose from, the Bill of Rights rather than a small class of provisions essential to ordered liberty. According to some legal scholars,^[9]^[10]^[11]^[12] the Fourteenth Amendment of the United States Constitution covers all the protections of fundamental fairness contained in or that emerged from the Bill of Rights, rather than only a few provisions deemed crucial to "ordered liberty." This view suggests that the Fourteenth Amendment requires states to respect the specific rights spelled out in the Bill of Rights and the general principles of due process and equal protection under the law.^[13]

This interpretation of the Fourteenth Amendment is rooted in the Supreme Court's decisions over time, which have recognized that it incorporates various rights from the Bill of Rights that are fundamental to our system of justice.^[14] For example, the Court has held that the Fourteenth Amendment protects the right to freedom of speech,^[15] the right to bear arms,^[16] and the right to counsel,^[17] among other rights.

2022 Supreme Court decision on Roe v. Wade

In a 6 to 3 decision in Dobbs v. Jackson Women's Health Organization on June 24, 2022, the United States Supreme Court overturned the abortion rights that were established by Roe v. Wade.^[18] This decision has raised concerns among legal scholars^[who?] that it may lead to narrowing the Fourteenth Amendment's protections from a constitutional law perspective. Some experts^[who?] believe this ruling could set a precedent that puts other civil liberties, such as the right to interracial marriage and marriage equality for LGBTQ+ people, at risk in future cases.^[19]

The potential impact of Dobbs v. Jackson Women's Health Organization on civil liberties has been a topic of discussion among legal scholars^[who?], and some^[who?] have suggested that it could lead to a weakening of the Fourteenth Amendment's protections.^[20] This has prompted a debate^{[by whom?]} about the implications of the ruling and the future of constitutional law in the United States.

2022 Majority Supreme Court opinions: Dobbs v. Jackson Women's Health Organization

Justice Alito

When referring to ordered liberty with respect to the legality of abortion in the Dobbs v. Jackson Women's Health Organization ruling Justice Samuel Alito writes:

"The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.” Further, Alito comments, "That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be 'deeply rooted in this Nation's history and tradition' and 'implicit in the concept of ordered liberty.'"

Justice Thomas

Justice Clarence Thomas suggests that the Dobbs v. Jackson Women's Health Organization ruling on Roe V. Wade is an opportunity to "correct the error" of legal gay marriage; in his written opinion, he contends that Obergefell will continue to have "ruinous consequences for religious liberty.”

Thomas writes that the Supreme Court "should reconsider all of this Court's substantive due process precedents, including Griswold, Lawrence, and Obergefell; he contends that those precedents were "demonstrably erroneous":

Griswold v. Connecticut (1965) established that married couples have a right to purchase and use contraception without government interference in a 7–2 decision.
Lawrence v. Texas (2003) showed that criminal penalties for sodomy or private sexual acts between consenting adults are unconstitutional. That decision came down in a 6 to 3 ruling.
Obergefell v. Hodges (2015) ruled that the fundamental right to marry is guaranteed to same-sex couples by the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution in a 5 to 4 Supreme Court decision.

Additional background: Footnote 4

The Court clarified in the United States v. Carolene Products Co. that in its interpretation of the Fourteenth Amendment, more judicial scrutiny might be applied to laws that inhibit rights specified in the Bill of Rights, laws that impose "restrictions upon the right to vote," or laws that express "prejudice against discrete and insular minorities.”

Protection of "ordered liberty" means that some minor restrictions on various activities will be upheld because by safely establishing public order, more opportunities are provided for us to exercise our liberties freely. Specifically in this case, a section known as footnote 4, states that there is a need for special protection of "religious . . . or national ... or racial minorities" and this protection may from time-to-time require additional judicial inquiry.^[21]

References

^ "Ordered Liberty" by Randy E. Barnett, Harvard Journal of Law & Public Policy, Vol. 36, No. 2 (Spring 2013), pp. 421–446.
^ Pilon, R. (2008). Ordered Liberty. The Concise Encyclopedia of Economics. Library of Economics and Liberty. Retrieved from https://www.econlib.org/library/Enc/OrderedLiberty.html
^ Fleming, James E. and McClain, Linda C., "Ordered Liberty: Rights, Responsibilities, and Virtues" (2013). Books. 156. https://scholarship.law.bu.edu/books/156
^ Abraham, Henry J. 1987 Freedom and the Court: Civil Rights and Liberties in the United States, 8th ed. Kansas City: University Press of Kansas.
^ Rostow, N. (1974). The Fourteenth Amendment and the Bill of Rights. The Yale Law Journal, 83(6), 1045–1075. Retrieved from https://www.jstor.org/stable/795711
^ Hayek, F. A. (1960). The constitution of liberty. University of Chicago Press.
^ Berlin, I. (1958). Two concepts of liberty. Oxford University Press.
^ "Ordered Liberty" by Randy E. Barnett, Harvard Journal of Law & Public Policy, Vol. 36, No. 2 (Spring 2013), pp. 421–446.
^ Ely, John Hart (1988). "The Fourteenth Amendment and the Bill of Rights". Stanford Law Review. 40 (1): 131–152.
^ Curtis, Michael Kent (1986). "The Fourteenth Amendment and the Constitutionalization of the Bill of Rights". Duke Law Journal. 36 (1): 101–135.
^ Brennan, William J. (1985). "The Incorporation Debate: A Reconsideration". Virginia Law Review. 71 (1): 1–32.
^ Fairman, Charles (1949). "The Fourteenth Amendment and the Bill of Rights: A Study in Constitutional Interpretation". Harvard Law Review. 62 (3): 505–535.
^ David A. Strauss, The Living Constitution (Oxford University Press, 2010).
^ McDonald v. City of Chicago, 561 U.S. 742 (2010).
^ Gitlow v. New York, 268 U.S. 652 (1925)
^ McDonald, 561 U.S. at 778.
^ Gideon v. Wainwright, 372 U.S. 335 (1963).
^ Dobbs v. Jackson Women's Health Organization, 594 U.S.(2022)
^ Kevin Liptak and Ariane de Vogue, "Why the Supreme Court's abortion decision is considered a turning point," CNN, June 24, 2022.
^ Linda Greenhouse, "A Tidal Wave of Disregard for Precedent," The New York Times, June 27, 2022.
^ Coenen, Dan T. "The Future of Footnote Four." Georgia Law Review, vol. 41, no. 3, Spring 2007, pp. 797–842. HeinOnline, https://heinonline.org/HOL/P?h=hein.journals/geolr41&i=780.