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

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

Matthew W. Lunder (Autor)

Buch | Hardcover

284 Seiten

2020
Lexington Books (Verlag)
978-1-7936-2634-9 (ISBN)

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In The Concept of Ordered Liberty, a lineage of common-law judges spanning a century and a half protect a precious jewel of legal reasoning from the corrupting influence of partisan ideologies. A recursion to the concept of ordered liberty promises to bridge the deep divide among the Court’s current liberal and conservative factions.

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 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

Erscheinungsdatum	10.05.2021
Verlagsort	Lanham, MD
Sprache	englisch
Maße	160 x 229 mm
Gewicht	594 g
Themenwelt	Recht / Steuern ► EU / Internationales Recht
Themenwelt	Recht / Steuern ► Öffentliches Recht
ISBN-10	1-7936-2634-0 / 1793626340
ISBN-13	978-1-7936-2634-9 / 9781793626349
Zustand	Neuware