The Priority of Liberty: Rawls and 'Tiers of Scrutinyl'
Frank I. Michelman
Harvard Law School
September 14, 2011
RAWLS' POLITICAL LIBERALISM, Thom Brooks, Martha Nussbaum, eds., New York, Columbia University Press, Forthcoming
Harvard Public Law Working Paper No. 11-22
In the United States, exceptionally, an established judicial protocol for constitutional clearance of legislative incursions on freedom of action sets up a two-track scheme, prescribing a searching form of review for a subset of such incursions and a markedly more cursory review for the rest. The model further sets up a general standard of 'fundamentality' by which to sort such incursions into the two classes – as opposed, say, to a name-by-name specification of protected liberties drawn directly from the text of the bill of rights. Political Liberalism, I argue, should be at home with both these features of the U.S. jurisprudence. The role assigned by that jurisprudence to fifth and fourteenth amendment 'liberty' is matched by the role assigned to 'liberty of conscience' in Rawlsian political philosophy; while the second principle of justice (and not, as might appear, any Rawlsian philosophical denial of value to freedom of action 'as such') points toward a refusal of heightened-scrutiny protection for freedom of action across the board. In a Rawlsian well-ordered society, two-track scrutiny would be understandable as a device for holding the two principles of justice in equipoise.
This is a revised version of my paper previously posted as 'The Priority of Liberty: Rawls and a 'Warren Court Model,' SSRN Abstract ID 1927292 The revisions, which mostly occur in Parts I.A and I.B, have been largely prompted by the trenchant, skeptical treatment of the two-tier model in Chapter 9 of James Fleming’s and Linda McClain’s recently published book, 'Ordered Liberty.'
This paper is under preparation for inclusion in a forthcoming collection: Thom Brooks & Martha Nussbaum (eds), Rawls’s Political Liberalism (New York: Columbia University Press, 2013).
Keywords: constitutional liberty, substantive due process, political liberalism
Date posted: September 14, 2011 ; Last revised: May 31, 2016