Tradition, Principle and Self-Sovereignty: Competing Conceptions of Liberty in the United States Constitution

Abstract

The “liberty” protected by the United States Constitution has been variously interpreted as the “liberty” of thinking persons to speak, worship and associate with others, unimpeded by onerous state law; the liberty of consumers and producers to make individual market choices, including the choice to sell one’s labour at any price one sees fit, free of redistributive or paternalistic legislation that might restrict it; and the liberty of all of us in the domestic sphere to make choices regarding reproductive and family life, free of state law that might restrict it on grounds relating to public morals. Although the United States Supreme Court had never done so, the same phrase could be also interpreted as protecting the positive liberty of individuals to engage in decent work, to enjoy general physical safety and welfare, and to be prepared for the duties of citizenship. Such a progressive interpretation, in fact, might be more in line with the overall purpose of the Reconstruction Amendments, of which the right to not be deprived of one’s liberty without due process of law is a part.

Keywords: Constitution, Fourteenth Amendment, negative liberty, positive liberty, constitutionalizing liberty

JEL Classification: K19, K39