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What is the meaning and content of the "liberty" protected by the due process clause of the fourteenth amendment? In Michael H. v. Gerald D. Justices Brennan and Scalia spelled out what at first blush appear to be sharply contrasting understandings of the meaning of liberty and of the substantive limits liberty imposes on state action. Justice Scalia argued that the "liberty" protected by a substantive interpretation of due process is only the liberty to engage in activities historically protected against state intervention by firmly entrenched societal traditions. I will sometimes call this the "traditionalist" interpretation of liberty. Justice Brennan, by contrast, argued for a much broader, and nominally more liberal, interpretation. The liberty protected by the fourteenth amendment, Brennan contended, means the liberty to enjoy those broad areas of life -- such as parenthood, privacy, and sexuality -- which have been identified as essential to liberty by the relevantjudicial precedent of the liberal Warren and Burger Court era. I will sometimes call this the "precedential" interpretation.

In this essay I will briefly argue that, appearances notwithstanding, Justice Brennan's precedential interpretation of liberty, no less than Justice Scalia's traditionalist one, is at its root deeply conservative. I will then argue that the best explanation for the conservatism of even this nominally "liberal" interpretation of liberty by an unquestionably liberal jurist is that it stems from the general need of all members of the Court -- liberal as well as conservative -- to interpret the Constitution in a way that vindicates the "jurisprudential virtues" of good judicial decision-making. Those virtues, I will suggest, are themselves conservative, and perhaps necessarily so. It is therefore not surprising that constitutional interpretations rendered by even the liberal Justices -- such as Justice Brennan's interpretation of "liberty" in Michael H. -- have conservative overtones and consequences.

Second, I will suggest that the Justices' collective need to constrain interpretation by the ethical demands of the adjudicative, virtues has cramped our understanding of liberty, as well as of the Constitution's other general phrases. We ought to liberate the interpretive questions -- what is liberty, and what constraints does it impose on state action -- from their historical associations with the ethical need to constrain judicial decision-making. By doing so, we might achieve a more progressive, but also more accurate, understanding of the nature of individual liberty than that propounded by either Justice Brennan or Justice Scalia in their respective decisions in Michael H.

Publication Citation

139 U. Pa. L. Rev. 1373 (1991)