Elements of Liberty
48 Pages Posted: 26 Nov 2008
Date Written: November 2008
Liberty analysis under the Due Process Clause of the Fourteenth Amendment has been enormously inconsistent throughout the history of constitutional jurisprudence. In construing the meaning of "liberty," the Supreme Court has utilized a variety of interpretive methods but has never settled on any one in particular. Liberty jurisprudence is thus unpredictable, because the Court chooses among its various methods on a case-by-case basis. This is not desirable, because it encourages biased and personal value-based decision-making. There is a better solution. The Court's various interpretive methods over the past century reveal certain recurring objective analytical elements, although these elements are not always used, and have never been articulated together in a unified liberty test. These elements should be synthesized into one multi-dimensional interpretive test to further neutral and enduring liberty jurisprudence.
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