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Liberty from on High: The Growing Reliance on a Centralized Judiciary to Protect Individual Liberty

44 Pages Posted: 27 Dec 2007  

Patrick M. Garry

University of South Dakota - School of Law


The one overriding theme used to describe the modern Supreme Court is its revival of federalism. Ever since the New Deal era, federalism concerns had been largely absent from the Court's decisions. However, under the leadership of the late Chief Justice Rehnquist, the Court has attempted to resuscitate the constitutional role and authority of the states by revitalizing constraints on national power such as the Tenth Amendment and state sovereign immunity.

Despite the modern Court's dramatic move toward political federalism, it has not made a corresponding move in the area of individual rights. Rather than encouraging a decentralized rights-federalism, in which states have greater leeway to balance social values with a more particularized view of individual rights, the Court has consolidated the matter at the national level, with the Court dictating to the entire nation a uniform view and application of individual rights. Thus, while there has been decentralization regarding congressional regulation of the states, there has been no decentralization regarding the judiciary's dictates and formulation of individual rights. In other words, the Court's federalism revolution has coincided with an opposite move regarding individual rights, where centralization has occurred despite the growing diversity of the United States. With issues ranging from how best to protect religious freedom; what limits should be placed on abortion; how convicted murderers may be punished; whether pornographic speech can be kept from minors; and how public religious symbols may be displayed, the Court has refused to permit much diversity in state policies and has ruled that only it can act with one uniform mandate to the entire country.

The alternative to this high-court monopolization lies in the Constitution's structural provisions designed to protect liberty. These structural provisions - e.g., federalism and separation of powers - offer a constitutional path for the decentralization of rights and a greater reliance on the democratic process to protect liberty. This structural path to liberty is outlined in this Article-a path that offers a more democratic means of protecting individual rights in an increasingly diverse nation. The Article offers examples of how the Court has centralized the whole area of individual liberty, despite the Constitution's original conception of how liberty would be safeguarded. The Article also examines how this judicial centralization of rights, particularly through the use of substantive due process, has affected the political process, and how it will continue to affect that process in the future.

Keywords: Federalism, Separation of Powers, Political Process, Substantive Due Process, Individual Rights, Tenth Amendment, State Sovereign Immunity

JEL Classification: K1, K3, K10, K19, K30, K39

Suggested Citation

Garry, Patrick M., Liberty from on High: The Growing Reliance on a Centralized Judiciary to Protect Individual Liberty. Kentucky Law Journal, Vol. 95, No. 2, 2006-2007. Available at SSRN:

Patrick Garry (Contact Author)

University of South Dakota - School of Law ( email )

414 E. Clark Street
Vermillion, SD 57069
United States

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