Liberty and the Supreme Court
What would the Founders make of a modern Supreme Court declaration that liberty is "the right to define one's own concept of existence"?


In America today, when we think of liberty, our minds naturally turn to the Bill of Rights. Then we think of the Supreme Court, and some of us get a lump in our throats. For in this complex of thoughts, “liberty” refers mainly to an individual’s prerogative to pursue his passions or to live her dream, even if doing so imposes great social costs and even if one’s path is contrary to the community’s deepest moral convictions about human flourishing. In this view, the Bill of Rights is our country’s birth certificate and the Supreme Court is our protector. The justices (some of them, at least) stand ever alert on the parapets, shielding us from the group-think and lifestyle conformity to which — as this story goes — our democracy would consign us. Thank heaven for the Supreme Court: Without it I could not be me, whoever I turn out to be!

It is not just Democrats or liberals who think this way. This birth narrative’s climax was supplied by three Republican justices — O’Connor, Kennedy, and Souter. In the 1992 decision Planned Parenthood v. Casey, they helped to form a majority that affirmed the abortion license of Roe v. Wade. And they did so (in part) by finding that license within what they called “the heart of liberty”: that is, “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”

When America’s Founders thought of liberty, however, their minds did not gravitate to a bill of rights, much less to the Supreme Court as guardian of the lonely dissenter. One reason is that the Founders understood liberty to be mainly a community’s right to govern itself according to laws made by representatives caring for the public weal. Individuals enjoyed the manifold blessings of living in such a regime. Some had the further satisfaction of participating in this collective self-governance by the leave of no man, as equal and independent citizens.

You need look no further than the bookends of our Constitution to see this picture. “We, the People,” established the Constitution (mind you, initially with no separate bill of rights) to “secure the blessings of liberty to ourselves and our posterity.” Now take a look at the last amendment ratified, the 27th. It postpones the effective date of any “law varying the compensation of” members of Congress until after an intervening House election, thus removing one temptation — a potential pay-grab — to use government service for private enrichment.

Ratified in 1992, the 27th Amendment nonetheless links us directly to the Founders, who proposed it to the states in September 1789. It was the second of twelve alterations to the Constitution passed by the first Congress; our First Amendment was number three on their list. The first of the twelve mercifully still languishes: It would limit congressional districts to 50,000 people. Today that would mean a House comprising 6,000 members.