The Concept of Ordered Liberty and the Common-Law Due-Process Tradition: Slaughterhouse Cases through Obergefell v. Hodges (18722015)

(Paperback)

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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 theoriesliberal and conservativefor 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 storys 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 Nations most controversial issues, and a critical reflection on the modern Supreme Courts role in its politics.

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The Concept of Ordered Liberty offers a comprehensive and close reading of the leading opinions in the development of substantive due process doctrine during its formative period in American law. Using the words of the justices themselves, the book highlights critical turning points in the jurisprudence of our most controversial social issues.

Author Bio

Matthew W. Lunder is a trial attorney at the United States Department of Justice.