 | The examples and perspective in this article deal primarily with the United States and do not represent a worldwide view of the subject. (May 2023) |
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Ordered liberty is a concept in political philosophy, where individual freedom is balanced with the necessity for maintaining social order.
The phrase "ordered liberty" originates from an opinion by Justice Benjamin Cardozo in Palko v. Connecticut, 302 U.S. 319 (1937), wherein the Supreme Court held that the Due Process Clause protected only those rights that were "of the very essence of a scheme of ordered liberty" and that the court should therefore incorporate the Bill of Rights onto the states gradually, as justiciable violations arose, based on whether the infringed right met that test.[1]
Utilizing a case-by-case approach known as selective incorporation, the Court upheld Palko's conviction, asserting that the appeal regarding double jeopardy was not "essential to a fundamental scheme of ordered liberty." The decision was made with an 8–1 vote, with Justice Pierce Butler serving as the sole dissenter, although he did not write a dissenting opinion.
In "Ordered Liberty: The Original Intent of the Constitution," Charles McC. Mathias Jr. examined 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.[2]
Mathias contended the Constitution's original intent is a framework for ordered liberty, not a fixed set of rules. It highlights the founders' use of historical lessons and political theory, particularly the separation of powers, to create a flexible system adaptable to changing conditions. The article critiques the notion of adhering strictly to "original intent", emphasizing that the Constitution's principles should guide contemporary interpretation to ensure liberty and prevent tyranny.
Matthew Grothouse argued in his work that the Obergefell majority opinion, by upholding the right to same-sex marriage, aligns with extending substantive due process to "important conduct implicit in the concept of ordered liberty." This approach argues for a more expansive view of protected liberties, recognizing that understanding fundamental rights can evolve over time. It focuses on protecting personal choices central to individual dignity and autonomy, even if those rights lack a longstanding historical basis.
Grothouse reasoned that the Obergefell majority opinion demonstrates how courts can recognize new dimensions of freedom that are "implicit in the concept of ordered liberty" without resorting to an entirely unconstrained or subjective interpretation.[3]
While Grothouse did not offer a concise definition of "liberty", he emphasized the ongoing debate over its meaning and scope within the context of the Due Process Clause. The author suggested that a nuanced understanding of ordered liberty allows for recognizing new rights while remaining grounded in legal principles and respecting the balance between individual freedom and societal interests.
Grothouse identifies two main arguments surrounding the interpretation of "liberty" under the Due Process Clause.
- ^ Palko v. Connecticut, 302 U.S. 319 (1937).
- ^ Mathias, Charles McC. Jr. (1987). "Ordered Liberty: The Original Intent of the Constitution". Maryland Law Review. 47 (1): 174–188.
- ^ Grothouse, Matthew (2016). "Implicit in The Concept of Ordered Liberty: How Obergefell v. Hodges Illuminates the Modern Substantive Due Process Debate". John Marshall Law Review. 49 (4): 1021–1054.