Defining Liberty

Analyzing Perspectives on the Due Process Clauses

By William Regan O'Connor

Few issues of Constitutional law have been more legally contested, or more politically charged, than the meaning of the word "liberty" in the Due Process Clauses under the 5th and 14th amendments. The current dominant view on the Court is that the word “liberty” refers to rights understood to exist at the time of enactment by both legislative authorities and the public, and that the Due Process Clauses permit the regulation of anything that has historically been the subject of regulation.¹ Historically, this view has competed with two other perspectives in the Court's jurisprudence.

The first of these holds that “liberty” refers to an individual’s right to act without restriction, so long as that action does not cause injury to others, and that the Constitution therefore restricts legislatures from imposing arbitrary restrictions untethered from an attempt to prevent or otherwise address a tangible harm.² The second holds that the Constitution’s use of the word “liberty” imposes no restraint on legislative authority, but merely prohibits arbitrary incarceration.³ The latter view has rarely found support with a majority of the Court, but nonetheless has a considerable pedigree, being embraced by Justices Holmes, Black, and Thomas.⁴ Although the current Court has embraced the historically contingent view, a future Court may embrace either of the other competing interpretations.⁵ An examination of these competing views should begin with an overview of the “harm principle,” since its era of dominance was chronologically earliest.⁶

History of the Harm Principle

From the early twentieth century until 1937, the Court held that regulations untethered from an effort to address a tangible harm violated the “liberty” protected by the Constitution and, based on this holding, invalidated a variety of economic regulations.⁷ Even when the Court reversed its position on economic regulation, it did not abandon the “harm principle” framework. Instead, the Court changed what qualified as a “harm” that a legislative body might address, and raised the burden a claimant had to satisfy to show that regulation was in fact unreasonable and arbitrary.⁸

While it ceased to do so in the economic arena, the Court has applied the “harm principle” to invalidate social regulations and has relied on pre-1937 Due Process cases which addressed similar regulations as authorities for doing so.⁹ As recently as 2004 and 2015 the Court issued majority opinions in Lawrence v. Texas and Obergefell v. Hodges which adhered to the “harm principle” and rejected both social regulations and competing interpretations of the meaning of “liberty” in the constitutional text.¹⁰ In Obergefell the Court made a forceful argument against the idea the Court should rely on historical practice to define the limits of “liberty.” The Court found, “[i]f rights were defined by who exercised them in the past, then received practices could serve as their own continued justification….”¹¹ At the time, the view Obergefell dismissed was already the main alternative to the “harm principle.” The decision in Dobbs v. Jackson’s Women’s Health provides a clear indication it is now the dominant view, despite Obergefell’s critique.¹²

Liberty Defined by History and Tradition

The “history and tradition” test arguably received an early articulation in Justice Holmes’ dissent in Lochner v. New York. Justice Holmes argued that “…unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law” the Due Process Clauses imposed no restraint on legislative authority. Justice Holmes’ implication that only those “liberties” with a history of recognition in “the traditions of our people” is the essence of the “History and tradition” test. Despite what Justice Holmes’ early articulation of the framework might suggest, the case law in which this developed initially focused not on the question of what the word “liberty” means in a broad sense, but either on questions of procedure or the extent to which the Bill of Rights applied to the states.¹³

In their concurring opinions in Griswald v. Connecticut Justices Goldberg and Harlan argued that the Court should extend its use of the test set forth in these cases to beyond questions of incorporation or procedure, and instead use it as a tool to assess whether a regulation violated the “liberty” protected in the Due Process Clauses.¹⁴ Both presumed that the “liberty” mentioned in the Due Process Clauses preserved some rights but argued that the scope of those rights must be limited as a matter of principle. Both Justices viewed reliance on history as the means of achieving such limitation.¹⁵ These views were echoed by Justice Powell’s plurality opinion in Moore v. East Cleveland.¹⁶ Thus, from its inception, the “history and tradition” test was ironically driven by motivated reasoning.¹⁷ Its advocates settled on reliance on historical practice as the best means of ensuring that the Court could use the Due Process Clauses to invalidate some regulations, while protecting favored regulations from scrutiny.¹⁸

Following Moore, in Bowers v. Hardwick and Michael H. v. Gerald D., the Court adopted the interpretation of “liberty” found in Justice Powell’s plurality opinion and later provided a full articulation and defense of Powell’s framework in Glucksberg v. Washington.¹⁹ However, as previously noted, a few years after Glucksberg the Court refused to be constrained by its reasoning in Lawrence and Obergefell.²⁰ As Chief Justice Roberts lamented, Obergefell required the Court to “….effectively overrule Glucksberg…”²¹ Despite this apparent rejection the Court would reassert a commitment to the framework Glucksberg advocated in Dobbs v. Jackson Women’s Health.²²

In Dobbs, the Court held that the prior history of abortion regulation meant that Roe v. Wade had been wrongly decided when it held that the Constitution restrained states from prohibiting abortion.²³ Aside from the substance of the holding in Dobbs, the case represented a broader, doctrinal development. Both the two original dissents in Roe v. Wade and its companion case argued that abortion regulations were permissible under the harm principle framework.²⁴ Neither argued that a history of abortion regulation, in and of itself, rendered such regulation permissible.²⁵ Therefore, aside from the particular issue it addressed, Dobbs stands for an embrace of the “history and tradition” test, an embrace which may have consequences beyond abortion, the Court’s denials to the contrary notwithstanding.²⁶

Narrow View of Liberty as Freedom from Arbitrary Incarceration

While the history of due process analysis has largely been a competition between the two views discussed thus far, there is a third perspective, which denies the use of “liberty” in the Due Process Clause protects any rights at all beyond mere arbitrary incarceration. This framework has rarely received the same level of articulation as either of its competitors. Its advocates have tended to focus on preserving the separation of powers between the legislature and the judiciary.²⁷ For example, Justice Black, rejected both the “harm principle” and the “history and tradition” frameworks as invalid readings of the Constitutional text in the abstract, and unworkable in practice.²⁸ However, Black’s reasoning was not grounded in a textual analysis of the word “liberty” as used in the Due Process Clauses.

In recent years, Justice Clarence Thomas has articulated a textual defense of the view that the Due Process Clauses impose no restraint on legislative authority. In his dissent in Obergefell Thomas argued that the Constitutional text emerged out of a legal tradition which was focused on preventing arbitrary incarceration and that the fact the word “liberty” appears in a list of what cannot be constrained without “due process of law.” Its inclusion along with “property” and “life” is a clear indication that the “liberty” contemplated was the sort of “liberty” which might be infringed as a consequence of a criminal conviction.²⁹ However sound Thomas’ reading might be, the Courts refusal to join Thomas in repudiating decisions based on alterative frameworks is a clear indication that it remains a minority viewpoint.³⁰

There has been a clear historical pattern in the development of the Court’s jurisprudence concerning the meaning of the word “liberty” in the Due Process Clauses since the early twentieth century. In the earliest period, the Court interpreted the Constitutional text to mean that regulations not tied to an effort to attempt to regulate tangible harms, violated the “liberty” protected by the Constitution. After 1937, the Court did not abandon this analytical framework entirely, but it did adopt a more liberal posture as to what qualified as a “harm” such that few regulations would be seen as infringing upon “liberty.” Concurrently with this narrowing of the “harm principle” a line of case law developed which insisted that the word “liberty” only protected rights with a historical pedigree. Gradually, this became the dominant view. However, at least some Justices have consistently considered both approaches to be erroneous and instead denied that the “liberty” mentioned in the Due Process Clauses restrained legislative authority.

The present dominance of the “history and tradition” principle should not be seen as the end of jurisprudential history. After all, in the early twentieth century the harm principle would have looked similarly entrenched. If the history of “liberty” jurisprudence demonstrates anything, it is however insistent the Court may be that its current “Due Process” framework is unquestionable, a future Court may yet abandon it.

William Regan O'Connor is a graduate of the University of Minnesota Law School. He is originally from the Chicago area and is licensed to practice law in both Minnesota and Illinois. Prior to attending law school, he received a degree in Legislative Affairs from George Washington University.

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