I participated last Fall on a Wisconsin Law Review symposium panel on "Is the Court out of Control?," and wrote up a short (12-page) article for that. I'm posting it in several pieces; I hope some of you find it interesting, and I also still have time to make any corrections, if need be. Here's the fourth part (you can also read the first part, the second part, and the third part):
All this brings me back to one of my favorite passages on constitutional law—not from a case, but from a speech by Abraham Lincoln at the peak of the Civil War:
The world has never had a good definition of the word liberty, and the American people, just now, are much in want of one. We all declare for liberty; but in using the same word we do not all mean the same thing. With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men's labor. Here are two, not only different, but incompatible things, called by the same name—liberty. And it follows that each of the things is, by the respective parties, called by two different and incompatible names—liberty and tyranny.
The shepherd drives the wolf from the sheep's throat, for which the sheep thanks the shepherd as a liberator, while the wolf denounces him for the same act as the destroyer of liberty, especially as the sheep was a black one. Plainly the sheep and the wolf are not agreed upon a definition of the word liberty; and precisely the same difference prevails today among us human creatures, even in the North, and all professing to love liberty. Hence we behold the processes by which thousands are daily passing from under the yoke of bondage, hailed by some as the advance of liberty, and bewailed by others as the destruction of all liberty.[1]
Now Lincoln certainly thought there was one definition that was right, and another that was wrong. Ultimately one definition was, thankfully, entrenched in American law by a political process (albeit backed by a military victory that was itself backed by a political process). Yet, the broader point still stands: claims of liberty presuppose controversial judgments about who is entitled to rights and to which ones.
If you change the words a bit, you see how this encapsulates the American debates about abortion. Both sides say they support liberty and life; they just have very different senses of what those mean, based in large part on a disagreement whether the rights of a particular group (the unborn) count. I doubt that framing abortion as a question of "necropolitics"[2] is helpful, but if it is, then surely those who view the unborn as persons can view the pro-abortion-rights position as being a particularly awful instance of necropolitics. Again, I generally take the pro-abortion-rights view. But it's unsurprising to me that others who disagree with me claim the mantle of individual rights as much as those who agree with me.
Likewise as to the Second Amendment. Some people think that the right to armed self-defense is fundamental to protecting life and liberty. (Certainly, if you want to look for an unenumerated right hallowed by long, broad, and deep tradition, the right to self-defense would qualify;[3] and one can certainly argue that the right to self-defense must include the right to use the technological tools necessary for self-defense.[4]) Others think that banning guns is fundamental to protecting life and liberty. Others take some intermediate perspectives.
You can see the same debate about religious exemptions, about broad readings of the Establishment Clause that ban government money from flowing to religious education alongside secular education, and more. And you can see that with regard to debates about criminal procedure rights and the like.
So again, maybe this comes back to Eric Segall's point: maybe if there is such a radical lack of agreement on liberty, it's a mistake to try to make the moral arc of the Constitution bend towards justice—whether in the form of liberty or the equally contested term "equality"—through anything other than political processes. But in the current system where we have deliberately insulated the Court from certain kinds of control, the Justices, unsurprisingly, make decisions based on their own judgments, however controversial, about what constitutes constitutionally protected liberty.
Conclusion
What we are seeing with the Supreme Court today, I think, is just its normal operation, for better or worse. All that is changing is which particular decisions are being made, and which particular precedents are being reversed.
[1]. Abraham Lincoln, Address at a Sanitary Fair in Baltimore (Apr. 18, 1864), reprinted in The Language of Liberty: The Political Speeches and Writings of Abraham Lincoln 690, 691 (Joseph R. Fornieri ed., 2009).
[2]. [Cite other symposium article that is oriented around this term.]
[3]. See Eugene Volokh, State Constitutional Rights of Self-Defense and Defense of Property, 11 Tex. Rev. L. & Pol. 399 (2007).
[4]. See, e.g., Victoria Dorfman & Michael Koltonyuk, When the Ends Justify the Reasonable Means: Self-Defense and the Right to Counsel, 3 Tex. Rev. L. & Pol. 381 (1999).
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