The Concept of Ordered Liberty and the Common-Law Due-Process Tradition

Slaughterhouse Cases through Obergefell v. Hodges (1872–2015)

Matthew W. Lunder

• Publisher: Lexington Books
• Year: 2021
• Edition: 1
• eBook ISBN:
  9781978773516
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

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.

Table of contents

• Cover
• The Concept of Ordered Liberty and the Common-Law Due-Process Tradition
• The Concept of Ordered Liberty and the Common-Law Due-Process Tradition: Slaughterhouse Cases through Obergefell v. Hodges (1872–2015)
• Copyright
• Dedication
• Contents
• Prologue
• Part I The Common-Law Tradition
• Chapter 1
• A Bulwark against Arbitrary Legislation
• Chapter 2
• Liberty and Economic Ideology
• Chapter 3
• Philosophy, Incorporation, and Natural Law
• Chapter 4
• A Reasonable and Sensitive Judgment
• Chapter 5
• A Zone of Substantive Rights
• Part II Fundamental Rights and Modern Conservatism
• Chapter 6
• Procedural and Substantive Due Process
• Chapter 7
• Deeply Rooted in History and Tradition
• Chapter 8
• A Different Description of Fundamental Liberties
• Chapter 9
• The Inquiry Thus Reduces
• Part III The Modern Justification for Arbitrariness Review
• Chapter 10
• The Dimension of Personal Liberty
• Chapter 11
• The Guideposts of History, Tradition, and Practice
• Chapter 12
• The Tradition Is a Living Thing
• Part IV A More Transcendent Liberty
• Chapter 13
• Certain Actions Are Prohibited
• Chapter 14
• A Prudential Exercise of the Judicial Power
• Chapter 15
• What Freedom Must Become
• Epilogue
• Bibliography
• List of Cases
• Index
• About the Author