The Conceptual Structure of Constitutional Liberty

Abstract

The article seeks to clarify the form of the Supreme Court's doctrine protecting liberty of action, such as free expression and religious liberty. That form generates three possible results when a sub-constitutional norm in some fashion interferes with the exercise of protected liberty. Some norms that do that are nevertheless valid in all of their applications. Others are wholly (as the Court often says, "facially") invalid. Others are valid in some of their applications but not in others. These outcomes result from the interaction of sub-constitutional norms with a constitutional protection of liberty with the following structure: First, some sub-constitutional norms are valid on their face, because they regulate protected conduct only incidentally. Second, the direct regulation of protected conduct is treated as inherently costly, so that its cost must be weighed against the benefits of the sub-constitutional norm in question. Although weighing of costs and benefits is usually associated with case-by-case adjudication, in fact this principle produces all of the familiar outcomes. It produces the principle that laws with a forbidden purpose are unconstitutional per se. It further invalidates some laws on their face, producing for example much of the doctrine of overbreadth. In some circumstances the cost-benefit comparison can be conducted with respect to particular applications of sub-constitutional norms, and in those cases the protection of constitutional liberty may produce partial invalidity. The article maintains that there is only one basic test for validity, not a plurality. It concludes by seeking to characterize more accurately the form of constitutional liberty and to show how that form reflects the basic principle that the Constitution's interference with the ordinary law is to be quite limited.

Keywords: Facial invalidity, rights against rules, overbreadth