The Concept of Ordered Liberty is a story of due process from the common-law tradition. Told through Supreme Court cases against a backdrop of political theory, legal philosophy and history, it illuminates a mid-twentieth-century dialectic between theories—liberal and conservative—for resolving controversies about state interference with personal liberties. So pervasive was the partisanship flowing from a riven body politic that every institution comprising the fabric of American society, including the federal courts, was soaked in it. But the ideological contest is not the story’s primary concern. More pertinent to our dilemma today is what the clash of ideologies eclipsed: a venerable judicial practice deeply rooted in American history and tradition. The moral of the story is in this praxis at its center and its understanding of the limits of legislative and judicial power. The modern liberal and conservative approaches to fundamental rights fall short of the tradition, having strayed from the common-law concept of ordered liberty. Readers will find a suprapartisan perspective on the federal courts’ obligation to resolve disputes about our Nation’s most controversial issues, and a critical reflection on the modern Supreme Court’s role in its politics.
Matthew W. Lunder is a trial attorney at the United States Department of Justice.
Part I: The Common-Law Tradition
1A Bulwark Against Arbitrary Legislation
2Liberty and Economic Ideology
3 Philosophy, Incorporation, and Natural Law
4A Reasonable and Sensitive Judgment
5A Zone of Substantive Rights
Part II: Fundamental Rights and Modern Conservatism
6Procedural and Substantive Due Process
7Deeply Rooted in History and Tradition
8A Different Description of Fundamental Liberties
9The Inquiry Thus Reduces
Part III: The Modern Justification for Arbitrariness Review
10The Dimension of Personal Liberty
11The Guideposts of History, Tradition, and Practice
12The Tradition Is A Living Thing
Part IV: A More Transcendent Liberty
13Certain Actions Are Prohibited
14A Prudential Exercise Of The Judicial Power
15What Freedom Must Become
The Concept of Ordered Liberty offers a comprehensive and close reading of the leading opinions in the development of substantive due process doctrine during its formative period in American law. Using the words of the justices themselves, the book highlights critical turning points in the jurisprudence of our most controversial social issues.