Defining Liberty Properly

On the Originalism blog, Michael Ramsey and Andrew Hyman responded to my post for Law and Liberty on the original understanding of substantive due process. Hyman disputes the definition of “liberty” I provided and asserts a different definition of “due process of law” in the Fifth Amendment, while Ramsey asks for more evidence that the definition of “liberty” given wasn’t unique to Thomas Jefferson.

First let me address the problems of Hyman’s interpretation of “due process of law,” and the ways in which it hinders a proper understanding of liberty.

He incorrectly equates “due process of law” with “statutory authorization.” Considering the words alone, this might be a plausible meaning; but we must also consider the history of the phrase “due process of law” and how it came to be derived from Magna Carta’s “by the law of the land.”

The phrase “by the law of the land” didn’t refer just to statutes passed by Parliament. It also referred to the common law—especially the process of writs by common law courts. This became clearer as “law of the land” was replaced with “due process of law.” The Liberty of the Subject Act (1354) required that before people could be punished they had to be “brought in answer by due process of the law.” The “brought in answer” part clearly linked the phrase “due process of law” to the process of presentment or indictment before a common law court.

Sir Edward Coke, perhaps the greatest of the English jurists, was considered authoritative by early American courts as to the meaning of the common law, and specifically the “due process of law.” Coke interpreted the words “law of the land” and “due process of law” to mean “by indictment or presentment . . . in due manner, or by writ [original] of the Common law.” Parliament also recognized this meaning when it abolished the Star Chamber, citing that “none shall be taken by petition or suggestion made to the King or to his Council, unless it be by indictment or presentment . . . in due manner or by process made by writ original at the common law.”

This meaning of “due process of law” and “law of the land” was understood and applied by early American courts. For instance, the North Carolina Supreme Court in Hoke v. Henderson (1833) held:

[S]uch legislative acts, as profess in themselves directly to punish persons or to deprive the citizen of his property, without trial before the judicial tribunals, and a decision upon the matter of right, as determined by the laws under which it vested, according to the course, mode and usages of the common law as derived from our forefathers, are not effectually “laws of the land,” for those purposes.

St. George Tucker, in his American edition of Blackstone’s Commentaries (1803), explicitly linked the “due process of law” in the Constitution’s Fifth Amendment to this meaning. And in 1833, Justice Story read the phrase in the Fifth Amendment as meaning “without due presentment or indictment, and being brought in to answer thereto by due process of the common law.” Due process of law described the process of adjudication by courts of law starting with indictment or presentment—not merely statutory authorization of the executive.

Guided by the concept of “due process of law” as described above, it makes no sense to define “liberty” as “unobstructed action according to our will” without considering the equal rights of others. That would mean that before a person is presented to a court for punishment, his or her right to murder or harm others could not be prevented by the legislature. Such a meaning would abolish almost all laws of government.

The rights safeguarded by the Fifth Amendment’s Due Process Clause are precious things worthy of constitutional protection. The idea that the right to murder or to commit other such wrongful acts was thought by the Founders to be worthy of constitutional protection is just silly.

Moving now to Hyman’s question about liberty: Yes, you can be deprived of it by “due process of law.” Visit any penitentiary and you will see people who have lost their liberty. Every time the sentence of capital punishment is carried out by the government, a person’s life has been taken by law. Only through a court of law can life or liberty be taken as punishment for the harm that that person has caused to the rights of others.

Regarding the last of Hyman’s questions, I would ask him what exactly he means when he says that Presidents and Governors could “stop” those harming the rights of others? Does he mean they could imprison those they believe are violating the rights of others? That would surely take away those persons’ liberty of movement—moving outside of a jail cell harms no other person—and therefore could only be done through a court of law. But if he means that the police, without having specific statutory authorization, could stop a person who is beating another person, then yes, they could and should; that’s the most literal definition of “police power.”

Let me directly make the case for defining liberty as I did, supporting that definition—as I was asked to do—with more than a single quote from Thomas Jefferson.

What I wrote about the Anglo-American definition of “liberty” wasn’t unique to Jefferson. The Fifth Amendment’s Due Process Clause derives from Magna Carta. The word “liberty” in the Due Process Clause comes from the requirement in Magna Carta that “No Freeman shall . . . be disseised of his . . . Liberties . . . but by lawful judgment of his Peers, or by the Law of the Land.” But what does this word “liberties” mean in Magna Carta? Coke described one part of the meaning this way:

[Liberties protected by Magna Carta] [signifies] the [freedoms], that the Subjects of England have; for example, . . . it was adjudged that [an] ordinance was against Law, because it was against the Liberty of the Subject, for every Subject [has freedom] to put his clothes to be dressed by whom he will. . . . [I]f a [grant] be made to any man, to have the sole making of Cards, or the sole dealing with any other trade, that [grant] is against the liberty, and [freedom] of the Subject, that before did, or lawfully might have used that trade, and consequently against this great Charter. Generally all monopolies are against this great Charter, because they are against the liberty and [freedom] of the Subject, and against the Law of the Land.

Coke’s view of Magna Carta ultimately culminated in Bonham’s Case (1610). Parliament had given the Royal College of Physicians the power to imprison, indefinitely, those they judged had practiced medicine without a license. Coke decided that this “flew in the face of the common law assumption that to practice medicine one needed only the consent of the patient” and so “the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void.”

Bonham’s Case was controversial in England for repudiating parliamentary sovereignty in favor of Magna Carta, but in the American colonies it was cited quite often as a reason for the colonists to oppose Parliament. For instance, when Parliament enacted the Stamp Act in 1765, the Massachusetts General Assembly declared “the Act of Parliament is against Magna Charta, and the natural rights of Englishmen, and therefore, according to Lord Coke, null and void.”

Coke’s understanding of Magna Carta and the liberty of Englishmen was widely shared among the other English common law jurists—but not his view of the limits of Parliament’s powers, which he expressed in Bonham’s Case. The other English jurists agreed with Coke as to the meaning of Magna Carta but they believed that Parliament could overturn or abrogate it.

For instance, the other English jurist most important to the American Founders, Sir William Blackstone, described liberty this way:

Political therefore, or civil, liberty, which is that of a member of society, is no other than natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the [public]. Hence we may collect that the law, which restrains a man from doing mischief to his fellow citizens, though it diminishes the natural, increases the civil liberty of mankind: but every wanton and causeless restraint of the will of the subject, whether practiced by a monarch, a nobility, or a popular assembly, is a degree of tyranny. Nay, that even laws themselves, whether made with or without our consent, if they regulate and constrain our conduct in matters of mere indifference, without any good end in view, are laws destructive of liberty.

While Blackstone held that Parliament had the authority to change the unwritten constitution of England (including Magna Carta), it is notable that colonial Americans, when they went to cite Blackstone, most often quoted his statements about the legal supremacy of natural justice.

Thomas Jefferson was making the same distinction as Blackstone did between natural liberty—constrained only by the laws of nature—and civil liberty—properly limited by the kind of law that “restrains a man from doing mischief to his fellow citizens.” Both of them recognized that any statute that restrains natural liberty, but not for the purpose of preventing “a man from doing mischief to his fellow citizens,” is tyranny and destructive of liberty of all kinds.

Justice Thomas, in his dissent in Obergefell v. Hodges (2015), wrote that “liberty” is “likely” the basic fact of not being imprisoned; but even he recognized the long historical support for the definition of liberty I have outlined here. The narrow definition of liberty offered by Justice Thomas seems incompatible with the Constitution’s preamble, which proclaims the document’s purpose to be to “secure the Blessings of Liberty to ourselves and our Posterity.” The word liberty here must mean so much more than mere lack of imprisonment.

Likewise when James Madison declared that “In Europe, charters of liberty have been granted by power. America has set the example and France has followed it, of charters of power granted by liberty.” Or when Benjamin Franklin reminds us that “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” How can it be correct in this context to understand liberty as meaning only that one is not under lock and key?

Look also at the way liberty is used in the state constitutions of the time. The Maryland Constitution of 1776 seems to use it in a context broader than imprisonment or non-imprisonment when it declares that the right of the people to vote is the best “security of liberty” and that ex post facto laws are “incompatible with liberty.” The North Carolina Constitution of 1776 declares that general warrants and standing armies are “dangerous to liberty” and that the freedom of the press is “one of the great bulwarks of liberty.” None of these can possibly be considered to fit into a conception of liberty merely as non-imprisonment.

Originalists should recognize the consistent view of the common law courts and the Founders, which was that the meaning of liberty included the right to do all those acts which are not harmful to others.


Devin Watkins

Devin Watkins is a legal associate at the Cato Institute. He graduated from Antonin Scalia Law School at George Mason University, where he was the Developments Editor on the George Mason Law Review.

About the Author

Recent Popular Posts

Related Posts


  1. gabe says


    Well said and glad to see this response.

    Interesting that you note the English Parliament’s accretions of power and discretion which has lead to the re-conceptualizing of the role of the English Constitution as almost a derivative of Parliament, at least as being *subordinate* to the “will of Parliament.”

    Odd that we see “originalists” advancing a view that is not dissimilar from that espoused by the English Parliamentarians by which Parliament is *Supreme* in all matters and “may legislate (bind) in all cases whatsoever” (see early colonial objections to rule by Parliament). To assert that a mere pro-forma statutorily (or administrative decree) *protection* is sufficient due [process to deprive one of liberty, property, etc. is both too clever and spurious, if not specious. Shall I be deemed proper to deny, let us say, a professional license, by an Administrative Agency for some minor (and generally unknown) violation of an Agency “finding” or “guidance letter” because I was “afforded” the opportunity to be *heard* by that very same Administrative Agency – which made the regulation, is empowered to interpret / re-define it, and then serves as Judge of its own determinations. This I think is the (actual?) outcome of the limited due process and liberty conceptions expressed / asserted by some today.

    Yet< I do not think that the fellows you mention would, on its face, agree with this outcome.
    So what then does account for it? Is there now some disdain for the wisdom of common law? Are we so impressed with the impressive edifice of Federal Power and its' concentration? It may be a wonder to behold, awe (ancient definition, here) inspiring, yet frightening?
    What is the seduction of this power and why would folks who are generally committed to liberty apparently willing to bargain away those protections that English (speakers) have enjoyed "from time immemorial."

  2. R Richard Schweitzer says

    “. . . the meaning of liberty included the right to do all those acts which are not harmful to others.”

    How about: Liberty consists of the obligations that all in a social order recognize , accept and perform in reactions to, and constraints of, the conduct of others.

    • Devin Watkins says

      (1) Your definition of liberty seems to only speak of obligations. Is this the obligations of others not to interfere with your acts in some way?

      (2) “that all in a social order,” Does this mean if one person objects then it isn’t your liberty to do that?

      (3) I’m not sure I understand the “in reactions to, and constraints of, the conduct of others” part. Can you explain that more?

      • gabe says


        Go ahead and give a short exposition on this. I think it would be helpful to both Devin and the general reader and I also suspect it may highlight some areas of *gray* that always appear to lurk in the background – items such as traditional views on morality, marriage, etc.

        It could be fun!

      • R Richard Schweitzer says

        This will not fulfill Gabe’s request.

        Your numbers:

        (1) Not so much a “definition” as an understanding of a concept (which occurs only in human interactions). Not exclusively.

        (2) Yes; not with that person (provided “objects” equates to rejection or qualification of particular obligation).

        (3) As Gabe suspects, there are obligations (of the character described) that do not arise from reactions to, or to constrain, the conduct of others.

        • Devin Watkins says

          As a general concept that might work, but used in trying to interpret the meaning of the Fifth Amendment it seems hard to grasp how judges would decide if a statute passed by Congress violates this view.

          • R Richard Schweitzer says

            Might I suggest that for about 500 years it was the function of “our” legal system to provide for the determination through “due” (owing, ought, appropriate) process of the obligations extant in relationships in specific circumstances.

            By popular demand we now have a legal system perverted to system for means to ends, which has carried with it the owing , ought and propriety of processes for how they my serve in quests for particular ends though these means.

          • gabe says

            And here is an instance where an *institution* (in Richard and Barzun’s formulation, i.e., a late stage bureaucracy having taken on the interests of its own members) fails (intends) to discharge an obligation to the citizenry (in this case a parent of a minor child) to protect a child under its putative domain.


            Can there be any doubt that the bureaucracies involved have become “institutions” motivated and propelled by their own (ideological) ambitions? Or is this an instance whereby, the bond and inherent sense of responsibility that a parent feels for a child is so rooted in traditions dating back to “time immemorial” that no one thought it necessary to specify in the positive law the sanctity of this bond and the consequent “obligation(s)” upon governmental mechanisms to respect such an obligation.

            Time to roll some heads, as our late 18th century French friends were wont to say!

  3. says

    From your referenced post (“The Original Understanding of Substantive Due Process”), quoting, “A person’s liberty is the right to do those acts which do not harm others.”

    I think that sentence should be revised to “do no harm,” rather than “do not harm others.” Furthermore, if one considers the US Supreme Court a person, as I think Blackstone would do, the sentence applies to the court both your way and with my suggestion. However, Blackstone, obsolete in my view, is important only to the court. I want to collaborate about here and now.

    Respecting termination of pregnancy, conception and quickening seem critical to constitutional arguments, but like the preponderance of rational or religious thought, hold no light to The Facts of biology. (I use capital letters for expression rather than to deify the-objective-truth.) The Facts care nothing about non-conforming Supreme Court opinion. Conception is an essential event, but physics-errors during the following eight days may prevent blastocyst-attachment to the mom’s womb; natural abortion occurs and the mom may not even detect the issue from her body. Natural abortion occurs anytime errors of physics are detected in the womb. In the US, there are perhaps 4.4 million natural abortions and 0.7 million arbitrary abortions per year. Beyond stillbirth there’s neonatal death. Just as most moms feel quickening, some detect fetal demise. Jurists and priests make fools before reality when they interfere with the duty and responsibility of a woman to be in charge of her pregnancy and torture her over the dreadful decisions she must make.

    The appropriate question of harm is male abuse of the fertile ovum, by having sex with a woman without regard for either the ovum she carries or psychological bonding with her. This is an artifact of the religion-common-law-partnership’s archaic yet persistent subjugation of women. See Chapter XI Machiavellianism: . Only religion could inspire men to try to stop natural abortion (or obfuscate evolution or make the earth young), and that is a point the US Supreme Court may face anytime they choose to do so. The web of Supreme Court opinion about Supreme Court opinion is rotted. The constitution for the USA is and always was amendable so as to conform to The Facts. The court may turn from Blackstone to The Facts.

    Again, quoting the original post, “[Watkins’] Human Life Amendment to the Constitution . . . is reserved to the people.” The people inexorably march toward beneficial comprehension and use of The Facts. Regressions work against the people, regardless of who initiates them.

    Watkins’s paragraphs on gay marriage miss several points, but I want to focus on one: marriage as managed by the states as well as federal tax laws have traditionally supported the nation’s need for procreation and child-rearing, and awesome need if a civic culture is to be maintained.

    In a civic culture, the child is a person, and therefore has the right to have and to stay with an appreciative mother and father—his or her hereditary couple. By “appreciative” I mean a couple who are in an appreciative bond with the intentions to be faithful. The couple intends to extend their appreciative bond to an immediate family, and thereby maintain fidelity to the facts, their person, their immediate family, their extended family with two blood lines, the people/nation, the world and the universe, both respectively and collectively. The immediate-family fidelity extends to grandchildren and beyond, or personal posterity. The possibility that these ideas have not been written together before does not lessen their importance. The object of a civic culture is to nudge reduced misery, pain, and loss by the people.

    As much as possible, a civic culture protects the child from risk of future romance with one of two same-sex partners that honestly intend to surrogate motherhood and fatherhood yet have not the fidelity to preserve their mutual obligations. Further to the importance of fidelity, a civic culture does not condone nourishment of a psychological gender preference that leads to sex-change and consequential infidelity to the existing, immediate family and the other fidelities listed above.

    The promulgators of Obergefell may face these issues sooner rather than later, but so far the United States Supreme Court has neglected human misery some states always lessened but the court would increase. The court has done harm to children, IMO.

    Returning to “Defining Liberty Properly,” Watkins’s arguments are too steeped in opinion to allow free thought. Opinions about social morality cannot lead to iterative collaboration for civic-morality-with-private-liberty or public-integrity.

    Quoting the opinions represented in famous phrases—due process of law, statutory authorization, by the law of the land, brought in answer, by indictment . . . of the common law— does not address The Facts of reality rather than “merely statutory authorization of the executive.”

    Murder is a weak example to illustrate that a person’s “harm . . . could not be prevented by the legislature.” A more controversial idea is legislating rules for public education that require human reproductive education by age ten for females and by eleven for males. Also, companion education about formation of beneficial human connections based on preserving the personal autonomy of each person; emphasis that an authentic man protects the fertile ovum as well as the woman when he proposes to bond with her, whether sexually or platonically. A civic culture lessens the chances for a child to be born to be unappreciated.

    IMO, the court needs to reform from wasting the potential for human progress that occurs when it continues to develop its web of opinion about opinion, never facing the fact that the nature vs nature’s god debate has been put to rest by discovery during the last two-hundred, thirty years. A civic people do the noble work to discover, understand, and apply the indisputable facts of reality, reserving pursuit of religion as a private art form to be conducted in privacy. No person wants public collaboration on his or her religious preferences, but everyone may work to benefit from The Facts.

    Thank you for such extensive expression of opinions.

  4. Devin Watkins says

    As to your interpretation of Liberty as your right to do all those acts which do no harm (rather than “do not harm others.”), that is a plausible definition of liberty on its face. I just wonder if there are historical facts to support that definition. I quoted Jefferson and Blackstone which seem to refer explicitly to others, but maybe you know of other people who didn’t include that? To me, at least, if a person wishes to harm themselves by smoking cigarettes or do things that I associate with a significant risk of harm (such as skydiving), that is still within something that should be their right to choose regardless of the views of the rest of society. It’s only harm to unconsenting 3rd parties that really becomes a problem. But maybe you disagree and think the Founders believed otherwise.

    Much of the rest of your argument has to do with my first post rather than the content of this post, but I will try to answer it. To an extent, I agree with you. As you say “The constitution for the USA is and always was amendable so as to conform to The Facts.” The facts of the world, I think, demonstrate that life begins at conception. And the Constitution should be amended to confirm to that fact. But we must also deal with the constitution we have and not just the constitution we want and, to me, it is not up to the Court to ignore Blackstone and the meaning of the words as originally understood and instead change the meaning of the Constitution to conform with their view of the world.

      • says

        Sky diving risks the diver for the thrill. Euthanasia, without risk, terminates suffering. Courts impose opinion only in the second case. The court, being a person, has harmed the sufferer. Perhaps the court thinks it is forgiven by tradition. However, woe often begets woe.

        I think neither Jefferson nor Blackstone said anything meaningful for the sufferer. I am loathe to spend time with their obsolescence. We have 230 years of discovery, at exponential rates, since they pondered The Facts (discovery and comprehension).

        I did not speak of The Facts of the world (secularism I guess you mean) respecting abortion. I soke of The Facts of physics and its progeny, biology and said so. The Church would like to reform to The Facts, but suffers the self-imposed oppression of rationalizing its doctrine. What travesty for them!

        I wonder if the Church even acknowledges natural abortion—biology’s mechanisms for terminating errors of physics. What do you think? Are the priests aware that some conceptions fail to attach to the womb? Are they in denial? Are they aware that quickening empowers the pregnant woman to detect fetal demise and that the responsible woman takes action, regardless of when it is detected?

        A common way of promoting ignorance is to dismiss The Facts when they are expressed. Dismissal of The Facts is such a common practice many people take it for granted.

        For example, the evil of slavery is made plain by The Facts: chains, whips, brutality and rape to slaves with both physical and psychological burdens to masters. Yet the Church includes books that condone slavery in its canonized Bible. Talk about begging woe. What if the priests emerge enslaved by chains, whips, brutality and rape? How could they have missed that possibility? There are other unspeakable possibilities of the Bible really is the word of God.

        True: neither your first post, which you referred me to, nor this post mentioned slavery, but you did mention the Church. I’m trying to collaborate about civic needs rather than social norms.

  5. Mark Pulliam says

    Devin, it was nice meeting you at the Fed Soc National Lawyers Convention. Your concluding sentence in this essay does not not seem to follow from the analysis and recital of history that precedes it. I agree that there was a common law understanding of the term “law of the land” that embodied some protection of property rights and economic liberties, but you claim a definition of “liberty” that seems to be drawn from the much later writings of John Stuart Mill. Can you cite any early judicial decisions (or even legal commentary) that recognized your purported “right to do anything that does not cause harm to others”? Your broad conception of “liberty” would prohibit laws against public drunkenness, prostitution, polygamy, recreational drug use, pornography, homosexual conduct, public nudity, and many other forms of behavior that were routinely banned (at least until the 20th and 21st century, when activist courts began to contrive rationales to strike them down). Absent such contemporaneous judicial rulings, I find your final sentence to be wishful thinking.

    • Devin Watkins says

      First, the Fifth Amendment due process clause only applied to the federal government, can you cite any of those laws in federal statutes of the founding era?

      Secondly, let me explain how many of the things you discuss were not considered a problem with restraint of liberty. Public drunkenness and public nudity (as I explained in the comments to my last post) were the “public morality” part of the police power based on the property rights of the public over public property. Like a private party could set rules for their property without taking a person’s liberty, some general neutral rules could be created to allow everyone to use public property (even those with small children). Private nudity or drunkenness could not be prohibited, only doing so in public. Polygamy is asking the asking the state to recognize a marriage, which the state understood to be between one man and one woman, even though they were already married. Such claims were falsehoods and could be punished as they were fraud. Can you point me to one of these founding era pornography laws? (public obscenity could be prohibited just like public nudity for the same reasons). Homosexuality was not directly prohibited outside of a few of the puritan states like the Bay Colony which directly cited Leviticus 20:13. These laws were created prior to the Declaration of Independence (although some states repeated these laws after independence when reaffirming all the prior statutory law), they were all removed by the early 1800s (the last was Connecticut which didn’t even create a state constitution till long after other states did). Remember these states had an official religion and were not bound by the federal Constitution including the Due Process Clause of the Fifth Amendment. What you did see more of was a prohibition on sodomy or buggary which prohibited anal intercourse (between men and women or men and men, or any sex between people and animals). At the time, without modern condoms, anal intercourse was highly likely to spread disease including beyond the two people who participated (which is also likely the basis for the old testament prohibitions). Likewise for prostitution. Prohibiting things likely to spread disease to the general public has always fallen within the police power for health and safety.

      I acknowledge that most of the Court cases of the era focused on economic liberty rights, but these fall well within the definition of liberty I provided (as I quoted from Blackstone and Jefferson). The fact is that the legislature of the era (especially the federal legislature), didn’t try to restrict people’s right to do those acts which did not harm others (and as such the federal Courts had no reason to strike down any legislation). Like today, usually when most legislatures act it is to protect someone from harm, but not always (and when not it is usually designed to help the private economic interests of a friend of members of the legislature).

      But as to common law cases that I do believe use liberty include: The Case of the Tailors of Ipswich (1615), Bonham’s Case (1610), Darcy v Allein (1599), Davenant v. Hurdis (1599), I would also look to the early federal Circuit case of Corfield v. Coryell (1823) decided by Justice Washington (although it wasn’t that clear what was included in liberty it did suggest a lot). There are a lot of state court decisions, look at Tennessee Supreme Court in City of Memphis v. Winfield (1848) (“This new curfew law … is high handed and oppressive, and … an attempt to impair the liberty of a free person unnecessarily, to restrain him from the exercise of his lawful pursuits, and to make an innocent act a crime … without trial before any tribunal.”) or the Alabaman Supreme Court in In re Dorsey (1838) (holding that anyone had the right “to pursue any lawful avocation,” and no citizen should be “legally deprived of this right, as a punishment for an offence committed, without a trial by jury.”). I also support the examples used by the Supreme Court in Allgeyer v. Louisiana, 165 U.S. 578 (1897) (“The ‘liberty’ mentioned in [the Fourteenth] amendment means not only the right of the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties, to be free to use them in all lawful ways, to live and work where he will, to earn his livelihood by any lawful calling, to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned.”)

      But I would also look at things outside of court cases like William Penn (founder of Pennsylvania) book “The Excellent Privilege of Liberty and Property” in which he lays out the founding principles of society, including citing Coke’s passage above.

      • gabe says

        And yet, Corfeld v Coryell in the mind of many unduly expands upon liberty (using an *inflated notion of P&I) according to many. Indeed, slaughterhouse cases, especially the State cases argue, persuasively, I think, against Justice Washington’s rather expansive conception of P&I / Liberty.

        Also, if as you say, “morals” were reserved for the States under the “police power”, it would seem odd to cite a case, Corfeld, that severely limits that very same “police power.”

        I am glad Mark brought this up, as it does highlight a problem with the conception of liberty that you advance (and it was something I had hoped a thread could be developed around in my earlier response).
        What is *proper* to nonetheless regulate / proscribe even if it may not be immediately shown to cause harm to anyone else?

        • Devin Watkins says

          What is it about this that is too “expansive”? (and how do you demonstrate that from an originalist perspective?)

          We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state

          It’s not “morals” its “public morals” which is within the police power of the state (things which occur on public property or within view of the public on public property). Nothing about Corfeld violates this definition of liberty (including the state police power over public morality).

        • Devin Watkins says

          As to slaughter-house, a decision that almost everyone today rejects but doesn’t neccesary agree on the proper outcome, I think the dissent in slaughter-house was far more correct than the majority. As they say:

          All such grants relating to any known trade or manufacture have been held by all the judges of England, whenever they have come up for consideration, to be void at common law as destroying the freedom of trade, discouraging labor and industry, restraining persons from getting an honest livelihood, and putting it into the power of the grantees to enhance the price of commodities. The definition embraces, it will be observed, not merely the sole privilege of buying and selling particular articles, or of engaging in their manufacture, but also the sole privilege of using anything by which others may be restrained of the freedom or liberty they previously had in any lawful trade, or hindered in such trade… And when the Colonies separated from the mother country, no privilege was more fully recognized or more completely incorporated into the fundamental law of the country than that every free subject in the British empire was entitled to pursue his happiness by following any of the known established trades and occupations of the country, subject only to such restraints as equally affected all others. The immortal document which proclaimed the independence of the country declared as self-evident truths that the Creator had endowed all men “with certain inalienable rights, and that among these are life, liberty, and the pursuit of happiness; and that to secure these rights governments are instituted among men.”

          • gabe says


            Poor wording on my part.

            The State case was more consistent with the dissent in slaughterhouse and one in which i agree.
            Justice Miller in Live-Stock Dealers & Butchers Assoc v Crescent City clearly delineates between those “fundamental” rights to be protected by both Federal Government AND all of the several States and those rights which may be either protected or granted by the several States.

            Unlike Federal rights, however, these were “rights belonging to the individual as a citizen of a State. They are so spoken of in the constitutional provision which [Justice Washington] was construing. And they have always been held to be a class of rights which the State governments were created to establish and secure.”

            Referring to Article IV, Miller goes on to say that Article IV did not create those rights, NOR did it guarantee such right to citizens of a particular State.

            “Its sole purpose was to declare to the Several States, that whatever those rights, as you grant or establish them to your own citizens, or as you LIMIT or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction.”

            Although some would have used Corfeld and the Comity Clause to (create?) protect a set of substantive national rights, Justice Miller turned them aside with the following:

            “It would be the vainest show of learning to attempt to prove by citations of authroity, that up to the adoption of the recent Amendments, no claim or pretence (sic) was set up that those rights depended upon the Federal Government for their existence or protection, beyond the *very few express limitations* which the Federal Constitution imposed upon the States – such, for instance, as the prohibition against ex post facto laws, bills of attainder, and laws impairing the obligation of contracts. But with the exception of these and a few other restrictions, the entire domain of the privileges and immunities of citizens of the STATES, as above defined, lay within the constitutional and legislative power of the STATES, and without that of the Federal government.”

            (Much of the above *stolen* from Kurt Lash and his book on the P*I Clauses).

            It would seem that for the “expansive” notions of Liberty (in a sense just P&I clause issues) to prevail, one would have to forego any acknowledgment of our FEDERAL Republic. As a CONSEQUENCE THEREOF, one would then advance the notion that the States are unable to legislate not just morals but also “public morals.” In short, Federalism is dead. (Of course, we may not unreasonably argue that it is INDEED dead).

            It seems to me that one of the un-examined consequences of this unbridled liberty argument backed, of course, by Federal power is the death of the State’s “police power”, at best, and at worst, the death of the States as States.

            This too troubles me mightily!!!!!!

          • gabe says

            Oops, I forgot something:

            Mentioning only Article IV may lead some to think that the 14th would provide cover for this expansive conception of liberty (P&I) – and many do precisely that.

            But if the drafter / crafter of the 14th is to be believed, John Bingham repeatedly denied this and asserted that the 14th WOULD NOT intrude upon the traditional police powers of the States other than in those areas relevant to the the Civil War amendments, i.e., slavery, voting and citizenship.

          • Devin Watkins says

            The Fourteenth Amendment did limit the powers of the states far beyond “slavery, voting and citizenship.” It at least prohibited the states from violating the Bill of Rights against thier own citizens. Here is John Binghams own words:

            It is a competent for the Congress of the United States to day to declare that no State shall make or enforce any law which shall abridge the freedom of speech, the freedom of the press, or the right of the people to peaceably to assemble together and petition for redress of grievances, for these are the rights of citizens of the United States defined in the Constitution and guarantied by the fourteenth amendment, and to enforce which congress is thereby expressly empowered.

            He also goes on to talk about liberty as used in the Fourteenth Amendment Due Process Clause:

            Liberty, our own American constitutional liberty, is the right “to know, to argue, to utter freely according to conscience.” It is the liberty, sir, to know your duty and to do it. It is the liberty, sir, to work in an honest calling and contribute by your toil in some sort to the support of yourself, to the support of your fellowmen, and to be secure in the enjoyment of the fruits of your toil.

  6. gabe says


    Depends on which quotes of Bingham we want to select. (I rarely do “dueling quotes).
    during debates on the 14th he repeatedly made clear that the 14th was not intended to strip the States of their traditional powers other than in the areas of those 8fundamental* rights already protected by the US Constitution and the B.O.R.

    What is unstated, but nonetheless evident, in this thread is the question of “morals”, i.e., SSM, tranny bathrooms, abortion, etc. that to the minds of the drafter(s) of the 14th would be matters of purely State interest and control (that is, if they spoke of them at all).

    Again, I will say that an overly expansive conception of liberty necessarily results in a diminution of Federalism – not to mention a rather forced an abrupt disruption of the underlying cultural traditions.

    • Devin Watkins says

      As to the first part, I agree with you. The 14th Amendment did limit state powers in the area of the Bill of Rights, but that includes the Fifth Amendment Due Process Clause and the Ninth Amendment, right? But I’m not claiming that the 14th amendment “stripped the States of their traditional powers.” States continued to have their police power over public health, safety, and morals. But those powers are not indefinite. As to SSM, they continued to have the power to define marriage as they wished for their own purposes (not prohibiting private marriages but only choosing to recognize). I don’t know where you get this “tranny bathrooms” thing from.

      As to abortion, I don’t know where you get this “forced an abrupt disruption of the underlying cultural traditions.” Abortion prior to quickening was not prohibited by law going back thousands of years, and post Roe v. Wade has been constitutionally allowed for my entire life. So how is this a disruption to the underlying cultural traditions?

      • gabe says

        Poor wording / shorthand on my part:

        The bathroom things simply meant that it would be the furthest thing from the minds of the drafters to think that any political entity other than the State could or should make ‘Political” determinations on such things as bathroom usage.

        Whether or not, abortion prior to quickening was prohibited (and it indeed was in many states), it is not with this subset that we are solely dealing. (Even then, it was most surely frowned upon and not celebrated). It is with the *endowment* of a newly created right to have near unlimited abortion PLUS the resultant quasi religious imprimatur now afforded the Pro-Choice segment.
        Can you honestly say that our underlying traditions would have accepted people proudly marching along our thoroughfares proclaiming the moral rightness of killing an unborn human child? Me, I don’t think so!
        Moreover, it again speaks to a destruction of Federalism.

        Hey Happy Thanksgiving – now that is one tradition we have not completely destroyed! (Give it some time and that may come to pass as well).

        • Devin Watkins says

          I would put it differently, it would be the furthest thing from the minds of the drafters to think that anyone other than the owner of the bathroom could or should make determinations on such things as who can use what bathroom. It wasn’t until after the Fourteenth Amendment was ratified that we saw requirements for different bathrooms for different sexes. Single-person outhouses were more common than split-gender bathrooms. For instance it wasnt until 1833 that the White House got running water and it wasn’t until 1853 that the President got it on the second-floor washroom. Most other people (especially outside of the major cities) didn’t have this luxury.

          No state prohibited abortion prior to quickening when the Fifth Amendment’s Due Process Clause was ratified. Now as to if it was “frowned upon,” this is likely the case. There was a lot of angist about such procedures, although they were not called abortion at the time. Mostly it was done via drugs (some of which made people very sick, many of the first regulations were anti-poison laws). And it was still broadly considered a sin, as it was the destruction of “potential life”. So, “frowned upon” I can believe, but not legally prohibited.

          • gabe says


            Fair enough and well stated as usual.

            But you do see where I was trying to take this thread. The key word was the use of “endowment” as a critique of the over expansive understanding of the rights alluded to in the Declaration.

            Many have criticized those whose hagiographic view of the DOI has lead to a fundamental misunderstanding (denial) of the concomitant obligations arising along with “rights.” We have now rights without end; in attempting to support those rights we now trample upon the concept of obligations (put another way, the rights of others); further, in so doing we trample upon the Federal structure as the most viable and efficient application of the force needed to sustain these new rights is to be found at the Federal seat of power; More importantly, we have forever diminished subsidiarity and all those State and local associations that heretofore had managed to resolve those Oakeshottian *collisions* attendant upon human intercourse. If this be a right, to crush what had previously sustained the “general welfare”, the smooth operating of a functioning polity, then we longer understand the burden we, each of us, singly and collectively, willingly accept when we either become, or continue to be, a member of a given polity.

            And all this because we, the individual, now deem ourselves Supreme!

            No, I’ll take the warts and pimples of tradition as opposed to the festering and cancerous sores imposed now upon the body politic by an overbroad and overgenerous conception of “persoanlized” liberty.

            Anyway, Devin, take care, enjoy the holiday AND “Keep ’em coming”

            BTW: Over at Originalism Blog, I did not see then take notice of your response to their earlier essay.


Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>