If you are bored to tears by the Commerce Clause and Necessary and Proper Clause, and are curious about how the Supreme Court has gutted the Fifth and Fourteen Amendment’s protection of “liberty,” you might be interested in my Michigan Law Review article, Scrutiny Land. There I explain how the Court purports to be protecting liberty while avoiding protecting liberty, and why the Due Process Clause — or what Charles Fried likes to call the “Liberty Clause” — was never availing as a means of challenging the individual mandate. Which is why proponents of the ACA kept insisting this was really a “liberty case” and not a “federalism case.” Of course, the mandate challenge is a liberty case and a federalism case because the enumerated powers scheme of Article I was designed to be the first line of protection of liberty — or the powers reserved to the people — before there even was a Bill of Rights and Due Process Clause. Very soon, we will soon find out if it still is. Perhaps the least well know part of the story is how this deed was finally accomplished, not by the New Deal Court, but by the Warren Court.
Here is the abstract:
Scrutiny Land is the place where government needs to justify to a court its restrictions on the liberties of the people. In the 1930s, the Supreme Court began limiting access to Scrutiny Land. While the New Deal Court merely shifted the burden to those challenging a law to show that a restriction of liberty is irrational, the Warren Court made the presumption of constitutionality effectively irrebuttable. After this, only one road to Scrutiny Land remained: showing that the liberty being restricted was a fundamental right. The Glucksberg Two-Step, however, limited the doctrine of fundamental rights to those (1) narrowly defined liberties that are (2) deeply rooted in tradition and history. In this Article, the author explains how the ability to define accurately almost any liberty as broad or narrow improperly gives courts complete discretion to protect liberty or not as it chooses. He then describes an alternative that is suggested by the approach taken by the Court in Lawrence v. Texas: a general presumption of liberty. Not only is such an approach practical, it is also more consistent with the text and original meaning of the Constitution than is the Glucksburg Two-Step.
Download it here. It makes great summer reading.