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Subject Area: Political Theory

Law vs. “Liberty” and “Property” - Leonard P. Liggio, Literature of Liberty, January/March 1979, vol. 2, No. 1 [1979]

Edition used:

Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Law vs. “Liberty” and “Property”

Henry Paul Monaghan

  • Boston University

“Of ‘Liberty’ and ‘Property.’” Cornell Law Review 62 (1977): 405–444.

We tend to view the Constitution's Fourteenth Amendment as limiting the separate states' actions in much the same way that the Bill of Rights limits the national government. Few observers believe the language of the Amendment has played a significant role in its historical evolution, but rather that “behind the words. . . are postulates which limit and control.”

These postulates have evolved over time from conceptions of vested rights and laissez-faire economics to more recent concerns for representative democracy, equality, and individual dignity. This debate has tended to blur any distinction between equal protection and substantive due process. The equal protection clause forbids few discriminations that are not similarly forbidden by the due process clause of the Fifth Amendment. “The history of the Fourteenth Amendment has always been the history of the due process clause.”

An overriding consensus viewed every individual “interest” as encompassed within the “liberty” and “property” secured by the due process clause and protected by the “baseline requirement of rationality.” More recently, the “right-privilege” distinction, the last barrier to such a consensus, has completely fallen apart through theoretical weakness.

Several recent cases have significantly affected the concepts of liberty and property as once defined. Prior to Board of Regents v. Roth (1976), “Supreme Court definitions of ‘liberty’ and ‘property’ had amounted to taking the words ‘life, liberty or property’ as a unitary concept embracing all interests valued by sensible men.” Now each word must be examined separately, and, “so examined, we find that they do not embrace the full range of state conduct having serious impact upon individual interests.”

This break with tradition has altered the nature of the interests (such as the terms ‘liberty’ and ‘property’) secured by the due process clause. To examine these terms involves a lengthy discussion of “liberty,” including its historical origins, something of its development within our language, its relationship to substantive due process as equal protection, the narrowing of the meaning of the term through the gradual process of exclusion, the importance of Paul v. Davis, and the Burger Court's efforts to define the “New Liberty.”

A similar analysis of the term “property,” especially relating to entitlements in recent jurisprudence, would emphasize the case of Bishop v. Wood as an example of this issue. What Monaghan fears from the above history and analysis is that the “gradual process of exclusion,” while it has not yet resulted in much narrowing of the “liberty” and “property” protected by due process, derives from cases capable of “broader mischief.” In short, “They are capable of generating doctrine and results that are inconsistent with long standing conceptions about the meaning of ‘liberty’ and ‘property’ in a ‘Constitution for a free people.’”