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

Review of Constitutional Studies, Vol. 6, p. 262, 2002

Georgetown Public Law Research Paper No. 11-106

30 Pages Posted: 1 Aug 2011  

Robin L. West

Georgetown University Law Center

Date Written: 2002

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

Suggested Citation

West, Robin L., Tradition, Principle and Self-Sovereignty: Competing Conceptions of Liberty in the United States Constitution (2002). Review of Constitutional Studies, Vol. 6, p. 262, 2002; Georgetown Public Law Research Paper No. 11-106. Available at SSRN: https://ssrn.com/abstract=1900921

Robin L. West (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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