The Constitution And The Definition Of Liberty Essay, Research Paper

When our founding fathers sat down to prepare the document which would guide this fledgling nation on to become a powerful force in the world and an example to all of Democratic government, they designed a document with many vague twists and turns. Wanting to protect the individual freedoms of its citizens while providing a strong central base, the Constitution delegates the powers of the federal government, but also includes clauses which limit the extent of that power.

Liberty, a term that can be found throughout the document, was something deemed fundamental, and was to be protected. What is liberty? Throughout history, the courts have grappled with this job of defining liberty. They have acknowledged economic as well as private rights under liberty, yet have remained very stingy in creating a more far reaching definition that can be used as a standard by which to judge other cases.

How should the courts determine liberty? What kinds of liberty should be protected by the Constitution? I believe that liberty includes many things. It ought to protect citizens from government intrusion into their private, economic and spiritual lives. The framers of the Constitution intended for the government of the nation to rule so as to create order, not to limit freedom. The courts today need to examine what the word liberty means within the context of the framers, then adapt it toward issues facing society today. Throughout the course of my reading, I have seen the Supreme Court work through these issues, and come closer to the answer of what is liberty.

HISTORY: LIBERTY IN THE COURTS

In 1798 a case came before the Supreme Court, Calder v. Bull. Two couples were involved in a fight over the assets of the deceased N. Morrison, when a Connecticut law passed which affected the transaction. The effect of the law was to reverse a decision of probate court, and direct a new hearing of the case in the same court. Calder challenged the fact that the state could make a law which infringed upon his liberty right to personal property. Here we see our first example of the economic rights doctrine that would prevail for quite some time. Prior to the enactment of the Fourteenth Amendment, citizens were not guaranteed protection from state’s infringement upon their rights. The Fourteenth Amendment gave citizens the right to due process under law, and protection against states infringing on their individual right to liberty. Even after the enactment of this amendment, the courts were shy in using it to define liberty. Here in Calder, the court endorsed the state’s legislative rights. Liberty, in this context, did not guarantee personal property. However, the ideas and questions surrounding liberty had been raised and were now on the minds of the court and would remain so for some time.

We now move to 1823, and Corfield v. Coryell. In this case the court attempts to define liberty for the first time. They pose, however, a very loose definition pertaining to fundamental rights, without exactly qualifying what these rights are. The court once again choose to reinforce a state’s right to legislate, which did not give much weight to the concept of liberty. We see the courts protecting the sovereignty of the states with regards to individual liberty. Rather than have the central government interfere with the individual states, they court preferred to send them the message that they were free to legislate on their own, concerning their own interests. While the Fourteenth Amendment did not exist to prevent state infringement on individual rights, the court sent a message loud and clear that they were not concerned with this. Even after the adoption of the amendment, state’s rights were upheld.

The Slaughterhouse Cases, in 1873, were the first time the courts had the Fourteenth Amendment to deal with in a liberty case. In what could have set the tone and definition as to what constituted a citizens liberty, the court once again ruled in favor of state’s rights. In this case we see the reasoning change a little. The court decided it was in the best interest of the citizens of a state that the state be able to make laws which protect the health and well being of the citizens. In this respect, they ruled that the state was able to make laws infringing on liberty so long as they served to protect the greater interest of the health and well being of the citizenry. Citing Corfield, the court did not produce a definition any more concrete than the original conclusion that liberty encompassed fundamental rights. The idea of protecting the health of the people is a valid one, to which I can agree is important for the states to protect. However, the courts needed to look closer at what the citizens are sacrificing for this protection. If it unduly infringes to the extent that their liberty interests are ignored, it is an unjust law. The decision in Slaughterhouse left a huge black hole of ambiguity concerning interpretation where the subject of liberty is concerned. The door was left open, and Lochner v. N. Y. walked right in.

In Lochner, we get our first glimpse of an attempt to pigeonhole liberty rights. The court found that a person’s right to contract, ie: entering into, contracting one’s services, was a fundamental aspect of liberty. Liberty then equaled, at this point, economic rights. The court acknowledged the existence of the state’s need to protect the health of its citizens, however, it cited for the first time that individuals have liberty interests that deserve protection from state infringement.

The next two cases to face the court were similar to Lochner, in that they continued the idea that economic rights were fundamental guarantees of the Fourteenth Amendment. In Meyer v. Nebraska, the courts cited the right to pursue an occupation could not be infringed upon. In its opinion, the court tried to lay out a definition of liberty. “This court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated….. it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in common occupations of life, to marry, to….” This was the first laundry listing of rights, sending the message out to the states not to infringe on these. Pierce v. Society of Sisters followed the same conclusion, finding it fundamental the right, under liberty, for a family to decided the choice of schooling for their child. While both Meyer and Peirce touch on personal rights, their emphasis is upon the economics of the situation, with the court not defining in any detail personal rights.

This Lochner line of cases dealing with economic rights ends with West Coast Hotel v. Parrish. In West Coast, the courts revert a bit, in that they reaffirm the police power of the states, the right of the states to make laws protecting the health and well being. The court decisions upholds the state’s denial to women and minors the right to contract. Not only does this set back the discussion of liberties invested in the Fourteenth Amendment, it goes against Lochner and sets women’s equality back in the eyes of the law.

While we could see faintly in Meyer and Pierce the attempt of the court to acknowledge the personal rights of individuals as opposed to just the economic ones, we don’t see this again until 1965, with Griswold v. Connecticut. In Griswold, the right to privacy was found to be an inherent right of liberty, one that is unenumerated, or not specifically written but essentially there within the meaning of the document. This concept of unenumerated rights was a huge breakthrough for liberty. It opened the doors for the court to freely interpret the Constitution and to adapt it to incorporate the needs of a changing society. Eisenstadt v. Baird in 1971, follows this same line of right to privacy doctrine, expanding this right to unmarried persons.

Finally we turn to cases more recent in nature, and we find that the court has been extremely strict in applying its broadened definition of liberty. It would appear that the court opened the door in the mid- 60’s but has now chosen to close it a bit either out of fear of opening the floodgates of litigation, or as an effort to rescind the openness the new definition created. In the 80’s, we can see the court shying completely away from incorporating any new liberty rights. In Bowers v. Hardwick, the court denied the fundamental right to privacy guaranteed by Griswold to homosexual men. The court stated “In Palko v. Connecticut, 302 U.S 319,325,326 (1937), it was said that this category includes those fundamental liberties that are “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.” They concluded that neither by this, there exists no fundamental right to homosexuals to engage in acts of consensual sodomy. Certainly setting a precedent for other liberty cases the court stated, ” Nor are we inclined to take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause.”

The court remains close minded throughout the 80’s, as in the custody rights case of Michael v. Gerald, where Michael claimed he had a liberty interest in maintaining a relationship with his daughter. The court said that he failed to meet the burden of proof that his claimed liberty was deeply imbedded in society’s traditions so as to be a fundamental right. In his dissent, Chief Justice Brennan criticizes the court for limiting liberty in terms of “tradition.” He says that the plurality is blind if they think that the aspect of tradition puts a more discernible border around the Constitution than the more elusive and malleable one of liberty. “Liberty and property are broad and majestic terms. They are among the great constitutional concepts… purposely left to gather meaning from experience…They relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged.”

ANALYSIS

Liberty is certainly among the great constitutional concepts. Its vagueness has left many a scholar to debate the meaning, but as Justice Brennan said, the years have helped it to gather this meaning from the experience that this debate provides. What has changed in terms of the court’s dialogue concerning liberty that now, in recent cases, makes them wary of recognizing liberty interests? The changing classification of liberty has had a huge effect on court decisions. Prior to 1937, the rederick had been that liberty equaled economic rights. States could not overly interfere with a person’s right to contract, to occupation. This changed in small part in Meyer and Pierce. Here we see for the first time, individual’s personal rights protected under liberty. Rights such as the right to raise one’s children how one deems right, privacy, right to pursue a field of interest in occupation, to marry, all these cases represent the change in the court as labeling rights as personal. By defining certain rights as personal or private, the court opens the door for many persons to challenge laws based on their own personal issues with the legislation. By allowing rights to be categorized as personal or private the court allowed for the more political issues to be decided within the courtroom, like that of Roe v. Wade, a classic example of fundamental personal liberty rights v. political opinion on the matter of abortion. Classifying rights as personal makes it more ambiguous as to what the states are and are not able to override in their legislation. They must be more careful than ever to think of all the groups or people that might be affected by each piece of legislation. Personal liberty rights, thus far vaguely defined by the Supreme Court, could be anything. A person could challenge laws on the basis of liberty, and because liberty itself is still undefined, it is really difficult, in my view, for the court to achieve any concrete decision that can be reliable precedent for the future.

How should the courts determine once and for all what kinds of liberty should be protected? This is a difficult question to answer. The definition of liberty should be fluid enough to guarantee that future interests are foreseen, but not so ambiguous as to create the questions we face today. There have been, throughout the cases I have read, many insights that provide a glimpse of what might be a good definition. In Bowers v. Hardwick, we see liberty defined as something so rooted in the concept of ordered liberty that neither liberty nor justice would exist without it. This is a grand proposal, however it is just as over-arching as the concept liberty in the Fourteenth Amendment, that it would not help in the analysis.

Chief Justice Brennan in his dissent of Michael v. Gerald, suggests that liberty must include the freedom not to conform. A stagnant society remains unchanged. Here I think we are getting closer. Liberty should protect the individuals right against status quo legislation that prohibits the individual and society to grow. Griswold and Eisenstadt were revolutionary in that they opened, or rather closed, the state’s interest in the individual’s bedroom. For many years, the state had maintained an interest within the personal aspects of marriage that made it more of a governmental institution than a private union. By recognizing this right to privacy, society benefited and moved forward. If young Americans had not chosen to rebel against the British, would we have a nation today? This freedom not to conform has moved our country forward in many ways. Often, legislators follow paths deeply rooted in tradition, without considering the progress of the times. A definition of liberty that acknowledges this propensity for society to change would be a much more acceptable and appropriate one.

Another possible answer to the liberty question is incorporation. By incorporating the bill of rights to apply to the states, many rights that are protected from federal intrusion, which often come up under liberty of the Fourteenth Amendment when states are involved, would be protected universally. I think by incorporating, you would still find challenges to expand the rights prescribed, however they would occur less frequently because more rights would be included. Many states are opposed to incorporation because it takes away quite a bit of their power. I think, though, that it would make their lives easier in terms of pleasing the citizens and creating fair legislation that does not unduly burden any particular group.

It would not work to establish a laundry list of rights to be included under liberty, because no matter how large the list got, it might never be enough to keep up with changing times, and needs of the people. Furthermore, my list might vary greatly from the next person, and there would be no fair way to determine which rights got on the list. For example, I may find it to be a fundamental right for all people to adequate housing, whereas, someone else may argue that housing is not a right guaranteed under liberty, but perhaps the right to employment is. There would not be a way to get all people to agree on this list.

What is my solution? I think that there needs to be a combination of sorts. By incorporating the Bill of Rights to all the states, many more rights would automatically be protected. People would still have the outlet of the Due Process Clause and the right to Equal Protection as well. Included in this process of incorporation, I would propose that liberty be interpreted so as to ensure that laws do not stagnate. People should have limited freedom not to conform as he suggests, in order to continually challenge the perimeters of the Constitution.

I suppose that this solution is nearly as vague as the one currently in place, however, I think this helps us draw the conclusion that the framers of the Constitution did not have a particular definition in mind to begin with, which is why it is so difficult to come up with one now. In deciding what is to included under liberty, we must look to the times, the current situation, and suggest that liberty ensures that each person is entitled equal rights, and that no law, state or otherwise, is allowed to unduly restrict someone from living the life they choose without fitting within the perimeters often prescribed for the equal protection clause. It must not be arbitrary or capricious and must be narrowly tailored to fit the state’s objective in order to pass the test. This combined with the above ideas would make for a smoother definition of liberty.