The Concept of Ordered Liberty is a story of due process from the common-law tradition. Told through Supreme Court cases against a backdrop of political theory, legal philosophy and history, it illuminates a mid-twentieth-century dialectic between theories-liberal and conservative-for resolving controversies about state interference with personal liberties. So pervasive was the partisanship flowing from a riven body politic that every institution comprising the fabric of American society, including the federal courts, was soaked in it. But the ideological contest is not the story's primary concern. More pertinent to our dilemma today is what the clash of ideologies eclipsed: a venerable judicial practice deeply rooted in American history and tradition. The moral of the story is in this praxis at its center and its understanding of the limits of legislative and judicial power. The modern liberal and conservative approaches to fundamental rights fall short of the tradition, having strayed from the common-law concept of ordered liberty. Readers will find a suprapartisan perspective on the federal courts' obligation to resolve disputes about our Nation's most controversial issues, and a critical reflection on the modern Supreme Court's role in its politics.
Matthew W. Lunder is a trial attorney at the United States Department of Justice.
Contents Prologue Part I: The Common-Law Tradition 1A Bulwark Against Arbitrary Legislation 2Liberty and Economic Ideology 3 Philosophy, Incorporation, and Natural Law 4A Reasonable and Sensitive Judgment 5A Zone of Substantive Rights Part II: Fundamental Rights and Modern Conservatism 6Procedural and Substantive Due Process 7Deeply Rooted in History and Tradition 8A Different Description of Fundamental Liberties 9The Inquiry Thus Reduces Part III: The Modern Justification for Arbitrariness Review 10The Dimension of Personal Liberty 11The Guideposts of History, Tradition, and Practice 12The Tradition Is A Living Thing Part IV: A More Transcendent Liberty 13Certain Actions Are Prohibited 14A Prudential Exercise Of The Judicial Power 15What Freedom Must Become Epilogue
The Concept of Ordered Liberty offers a comprehensive and close reading of the leading opinions in the development of substantive due process doctrine during its formative period in American law. Using the words of the justices themselves, the book highlights critical turning points in the jurisprudence of our most controversial social issues. -- Anthony Johnstone, University of Montana
