Sunday, October 5, 2008

Liberty Clause?

So, how do you refer to this language from the Fourteenth Amendment:

"nor shall any State deprive any person of life, liberty, or property, without due process of law"?

There seems to be a bit of controversy in the blogosphere about the correct label.  The dispute started with a post on the National Review Online, in which Ramesh Ponnuru in an October 1 post criticized Joe Biden in the VP debate: "He seems to be under the impression that there's a "liberty clause" in the Fourteenth Amendment."

"Publius" on Obsidian Wings quickly posted a counterargument, not only quoting the text of the Fourteenth Amendment, but providing a sampling of six cases in which the court used the term "liberty clause."   Ed Kilgore on thedemocraticstrategist.org (predictably) supports Biden with a discussion of substantive due process, but does say "Biden's use of the term 'liberty clause' may be a bit imprecise."

Certainly there is a great deal of contention about exactly what - - - if anything - - - the word "liberty" in the Fourteenth Amendment does or should encompass.  Roe v. WadeLochner?  The Bill of Rights? 

But is the terminology similarly contentious?   "Liberty clause" IS imprecise because of the lack of "due process."  Certainly  "the liberty clause of the due process clause of the Fourteenth Amendment" is preferable, although, strictly speaking, "liberty" may or may not be a "clause."

Have you ever deducted points on an exam for "liberty clause"?

RR

http://lawprofessors.typepad.com/conlaw/2008/10/liberty-clause.html

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