What is liberty? When the Founding Fathers wrote in the Declaration of Independence that men and women are “endowed with certain unalienable rights,” among which are “life, liberty, and the pursuit of happiness,” they largely believed that true liberty was the freedom to act in a manner consistent with a set of moral standards then adhered to by society and taught by religion [1].
Unfortunately, over two centuries later, little is recognizable in broader American society in terms of a shared morality and understanding of liberty “under the sole government of God and the laws” [2]. Where once religion and morality played “indispensable” roles in upholding the political order and fashioning the laws of the land, now the radical idea that liberty includes unrestricted personal autonomy has harmfully reshaped national and state legislation throughout the country [3].
One reason for this change has come about as some validly argue that the Founding Fathers’ conception of liberty was imperfect and incomplete because it failed to take into account the rights of the slaves they owned or those of women generally [4]. While I find some truth in this observation, I assert that the United States Supreme Court should still give more deference to the Founders’ view of liberty–and that of the people’s representatives–than it has over the last century.
Otherwise, the Court’s attempts to define liberty tend to usurp the people’s legitimate power to legislate according to their views of morality [5]. Here, I focus on the Court’s gradual expansion of the definition of liberty to include the right to abortion.
Abortion was first recognized as a fundamental right by the Court in its landmark 1973 case, Roe v. Wade. This decision overturned a century’s worth of laws restricting abortion in nearly every state in the country by stipulating that states could only regulate abortion in the second trimester to protect a woman’s health or in the third trimester to protect the life of the unborn child [6]. The Court justified this unprecedented decision by relying on past precedent, including a case called Griswold v. Connecticut, which held that the Constitution protects the right to privacy and, by extension, the right to contraception [7].
In Roe, the Court further defined the sources from which the right to privacy is derived–the 9th and 14th amendments to the Constitution–which respectively state that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” and “No State shall make or enforce any law which shall …deprive any person of life, liberty, or property, without due process of law” [8].
The Court reasoned that abortion is protected as an extension of the right to privacy since the people hold other rights than the ones explicitly stated within the Bill of Rights and states are prohibited from infringing on the liberty of their citizens without “due process of law”. In later years, the Court refined its decision about abortion in a case called Planned Parenthood v. Casey, where it affirmed abortion as a fundamental right but expanded the states’ ability to regulate it [9]. In this opinion, Justice Kennedy proffered the Court’s new definition of liberty: “[A]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe and the mystery of human life.”
This definition flew in the face of what the Founders understood liberty to mean [10]. Now, liberty was untethered from the social and moral constraints society had long imposed upon it. While the Court did not hesitate to enforce this newfound view of liberty in ways that purported to protect the rights of the people, the American public is still enduring the consequences of this expanded view of liberty.
Once a sphere of law where the people through their elected representatives could conscientiously regulate a controversial procedure, abortion became untouchable before the point of fetal viability, with advocates still employing the on-its-face compelling rhetoric that the right to an abortion is as sacred as other fundamental rights, such as the right to free speech, the right to freely exercise one’s religion, or the right to a fair trial.
This attempt by the Court to redefine liberty has had monumental consequences for other areas of American law and public opinion. In successive decisions over the decades after Casey, the Court effectively foreclosed action by the states–and the people–to pass laws about many issues once deemed morally nonnegotiable, including sodomy and same-sex marriage [11]. This forced upon the people laws they did not make, which often had the effect of driving their democratic sensibilities to favor policies and social trends they did not have a right to influence themselves [12].
As Justice Antonin Scalia put it in a dissenting opinion, “This practice of constitutional revision by an unelected committee of nine….robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves” [13].
Most recently, the Court has reversed, in part, this democratically destructive trend by ruling in Dobbs v. Women’s Health Organization (2022) that abortion is not a fundamental right guaranteed by the U.S. Constitution [14]. May this be the beginning of a restoration of the definition of judicial review to “have neither force nor will, but merely judgment” and a revival of the power of state legislatures and the people to define their views of liberty [15].
