How the Supreme Court Wrote ‘Liberty’ Out of the Constitution

The Constitution specifically says it guarantees "liberty," but the Supreme Court effectively wrote liberty out of the Constitution when it decided to embrace the so-called rational basis test as its normal standard of constitutional validity. Unfotunately for liberty, the rational basis test essentially means that the government can do anything it wants. It does not have to take liberty seriously. The Supreme Court has repeatedly made clear that, in its view, Americans have no fundamental right to liberty itself.
The United States Constitution flatly states that “no person shall be deprived of life, liberty or property without due process of law.” The requirement of “due process” actually refers to two things:
  • Procedural due process: First and most obviously, the due process requirement means that proper procedures have to be followed before the government (i.e., people wielding government power) can take away a person’s liberty—or his property or life. These procedures normally include notice and an opportunity for the targeted person to be heard.

  • Substantive due process: Reduced to its simplest terms, substantive due process means this: Our government, as a government of limited powers, only has authority to pass laws to advance legitimate public interests. Laws not aimed at advancing legitimate public interests are substantively outside government's limited constitutional power and, therefore, invalid. When government workers use such invalid laws to deprive people of liberty, property or life, it is a deprivation "without due process of law."
  • As we see, the idea of substantive due process is closely tied to the idea that our government is not a dictatorship or absolute monarchy but is, instead, a government of limited powers. The powers of the federal government were “enumerated” in the Constitution itself while state governments have a broader “general grant of legislative power” to promote public health safety and general welfare. However, both levels of government are subject (in theory) to the overriding limitation that government only has authority to act in the public interest. And it is not “due process of law” for government to take liberty (or property or life) under a so-called "law" that is outside the government’s constitutional authority.

    Okay, you may be thinking, but the idea of “in the public interest” is extremely broad. A constitutional requirement that laws be in the public interest doesn’t seem to give our liberty much protection at all.

    This is, of course, true but at one time the Supreme Court was a good deal more specific about what it actually means for a law to be “in the public interest.” In 1894 it wrote, for example, that in order to justify a law as being in the public interest, it must appear:
  • ”first, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and

  • “second, that the means are reasonably necessary for the accomplishment of the purpose, and”

  • third, that the means are ”not unduly oppressive upon individuals.” (Note 1).
  • Furthermore, the Supreme Court went on, a legislature’s “determination as to what is a proper exercise of its … powers is not final or conclusive, but is subject to the supervision of the courts.”

    Unfortunately, rather than build on this strong protective stance and take liberty seriously, the Supreme Court essentially abandoned its constitutional role as a check on legislative excess in the 1930s and decades that followed. Today, except for a narrow band of so-called “fundamental rights,” the Supreme Court generally uses a rational basis test and an extremely strong presumption of constitutionality under which, essentially, anything goes.

    Under the Supreme Court's modern appraoch, as long as “any state of facts reasonably can be conceived” for upholding a law, the Supreme Court will declare the law valid. Since the Supreme Court does not consider liberty itself to be a “fundamental right,” the protection that today's “substantive due process” gives to liberty is only a hollow shell.

    How it should be
    TAKING LIBERTY SERIOUSLY does not, of course, mean going back to the exact words of the Supreme Court in the late 1800s. But it also does not mean that the government’s ability to chip away at American liberty should be simply left unchecked. From Congress on down, the people wielding governmental power need to have somebody looking over their shoulders to be sure they are not destroying liberty without a compelling need to do so. Somebody should be looking to see that even the needed laws are narrowly tailored to not go overboard. In short, at the same time as other legitimate governmental interests are being protected, we need a new Constitutional Court and a Liberty Impact Statements process to make sure our interest in liberty is remembered and protected.

    * * *
    We like to think that ours is the “land of the free,” but the Supreme Court has decided that this need not be so. According to that august court, we can as easily become the “land of the dominated”—dominated by endless new laws and compelled to forego just about any freedoms the government wants to take. By adopting its “anything goes” rational basis test for judicial review, the Supreme Court has written “liberty” out of the U.S. Constitution.

    Rational Basis Test: The "rational basis test" allows any law to curtail freedom as long as “any state of facts reasonably can be conceived that would sustain" it. Borden’s Farm Prods. Co. v. Baldwin, 293 U.S. 194, 209 (1934). Return

    Note 1. Actually, this wording (from Lawton v. Steele, 152 U.S. 133, 137 (1894)) provides a test that corresponds more closely to the Supreme Court's modern test of "intermediate scrutiny," rather than the strict scrutiny that would apply if we were TAKING LIBERTY SERIOUSLY. See Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984); United States v. O'Brien, 391 U.S. 367, 376 (1968). While Lawton v. Steele acknowledged that legislatures have a "large discretion" to determine what the public interest requires and the measures "necessary" to protect those interests, it also stressed, as noted above, that legislatures are subject to the "supervision of the courts."
        Note that Lawton v. Steele was concerned specifically with whether the particular law at issue fell within the government’s “police power,” i.e. the power to protect public health, safety, morals and welfare. The police power is not, of course, the only governmental power. Nonetheless, it does not appear that either the state or federal constitutions give government any power to act for other than the public interest. It is for this reason that government lacks the authority to make laws that are not adapted to serve a public need. Return