Welcome to Ordered Liberty
For Edmund Burke, liberty was the distinguishing feature of the British constitution. He did not, however, mean liberty in some vacuous, hopeychangey sense. “The only liberty I mean,” he wrote, “is a liberty connected with order; and that not only exists with order and virtue, but cannot exist at all without them.”
When we hear the term “ordered liberty” nowadays, it is generally in a legal context. It has become famous -- we might better say “infamous” -- in the Supreme Court’s jurisprudence of “incorporation”: the doctrine holding that Bill of Rights protections that restrict the federal government are also validly asserted against the state governments, through the Fourteenth Amendment. The doctrine’s premise is dubious: state sovereignty is the foundation of our form of constitutional governance; if it had been the purpose of the Fourteenth Amendment to undo that basic assumption, one might have expected that incorporation would be clearly prescribed -- and that it might have taken less than sixty years for the Supreme Court to start enforcing it.
That said, though, the real infamy lies in the doctrine’s inconsistency. It does not apply all of the Bill of Rights against the states; only those rights that the judges, in their wisdom, determined to be “implicit in the concept of ordered liberty,” as Justice Benjamin Cardozo put it in Palko v. Connecticut (1937). That is to say, there is an arbitrariness to “ordered liberty” as judicially manufactured. Caprice, even if it piously flies under the “rule of law” banner, undermines the very idea of order.
Still, it would be foolish to insist that liberty is not a dynamic concept or that our perceptions about it do not evolve. To take two powerful examples, our notions of equality and cruelty have dramatically changed in just the last three centuries. Both are now attuned as never before to the dignity of each human being -- at least, once a person is born.
We can argue, and do and will argue, over the sufficiency of our evolution and over the means of achieving it -- I happen to think we are a body politic not a body legal, and that change brought about by the consensus of the community is far to be preferred to change imposed by law, and especially by unaccountable judges. Plainly, however, our expectations about liberty, and thus about ordered liberty, do not stand still. Not all change is progress, and lots of it has been downright destructive. But no one strives to be … the same. We want to be better, and when we are, change can be healthy.