November 04, 2005

There ain't no sanity clause...

So saith the renowned legal scholar Chico Marx. There is, however, a "liberty clause."

In an Oct. 31 news conference indicating at least tentative support for Samuel Alito's nomination to the Supreme Court, Senate Judiciary Committee chairman Sen. Arlen Specter led off with his favorable impressions from a meeting with Alito:

I start with his statement that he believes there is a right to privacy under the liberty clause of the United States Constitution.

Specter was referring to Section 1 of the Fourteenth Amendment (emphasis mine):

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Crucially, the right to personal liberty guaranteed by the Fourteenth Amendment was invoked by the Supreme Court in upholding its 1973 decision in Roe v. Wade. It's become a tradition for pro-choice senators like Specter to ask Supreme Court nominees about the "liberty clause," as an indirect way of finding out their thoughts on the validity of Roe. (Last month, there was some controversy over what Harriet Miers told Specter about the "liberty clause." Before that, John Roberts was grilled about the clause; he was also asked by Specter whether Roe should be considered not just a "super precedent" but a "super-duper precedent.")

But what is the "liberty clause" exactly? Is it the entirety of Section 1 of the amendment? Just the second sentence? The part of the second sentence between the two semicolons? Or is it simply the word liberty itself?

This last possibility was raised by Ramesh Ponnuru, a contributor to The Corner, the group blog of National Review Online. After hearing Specter's comments about Alito, Ponnuru posed a question:

I'm not sure when people started talking about a "liberty clause" of the Constitution--I hadn't noticed this until the Roberts hearings. It seems like a strange way to refer to one word in the Fourteenth Amendment. Are there other one-word "clauses"?

This is, on the face of it, further proof of the cultural divide between legal studies and linguistic studies. A syntactician might think a "one-word clause" in English would need to be an unmodified imperative intransitive verb like "Surrender!" (See Geoffrey Pullum's post on very short sentences.) But of course, the definition of clause in the world of law has nothing to do with syntactic structures. The legal sense, meaning "a distinct article, stipulation, or proviso in a legal document," has a long history in English. (The Oxford English Dictionary offers a quote from Chaucer's Troylus And Criseyde: "He shall me never binde in soche a clause.") Still, could the "liberty clause" really consist of a single word?

Ponnuru posted a reply from Princeton professor of politics Robert P. George:

If there is a "liberty clause," then there is also a "life clause" (that should make Arlen Specter shudder), and even a "property clause" (which might not go over well with Democrats). Of course, what we actually have is a due process clause.

George seems to consider the possibility of a "one-word clause" to be rather silly, and then explains that what Specter is really talking about is a "due process clause." The "due process clause" of the Fourteenth Amendment is generally understood to be the part in between the semicolons of the second sentence, reading: "nor shall any state deprive any person of life, liberty, or property, without due process of law." (Hey, it's a syntactic clause, too!)

So is this provision "actually" the "due process clause," and "liberty clause" is a misnomer? Either way, it's a bit of synechdoche, naming the clause by one of its key elements, either "due process" or "liberty." Indeed, the Merriam-Webster Dictionary of Law has no problem defining "liberty clause" as "the due process clause found in the Fourteenth Amendment."

The phrase "due process clause" does have a longer history (it is, for instance, what is used in the Roe decision), but "liberty clause" isn't simply an invention by senators like Specter involved in this year's series of Supreme Court nominations, as Ponnuru implies. It's been in use at least since 1987, according to the Nexis and Factiva news databases. On September 6 of that year, in advance of the contentious Senate hearings for Robert Bork, Anthony Lewis wrote a column in the New York Times detailing Bork's opposition to cases that rely on "the liberty clause of the 14th Amendment." When the Judiciary Committee voted to report the nomination to the full Senate with a negative recommendation, the report of the majority (eight Democrats plus Sen. Specter) read:

Had Judge Bork's views been the governing rule on the Supreme Court at the critical moments of the last generation, principles that most Americans have come to accept would have been rejected. There would be no right to privacy. There would be no substantive content to the liberty clause of the 14th Amendment.

Bork was of course rejected by the Senate, and his replacement, Anthony Kennedy, was also asked about the "liberty clause" during his December hearings. In contrast to Bork, Kennedy testified approvingly about the clause and its application to a right of privacy, and he was later confirmed. But it wasn't just pro-choice senators and pundits who were using the phrase "liberty clause." The National Law Journal and the Legal Times both used it in 1989, and Justice John Paul Stevens gave the phrase the thumbs-up in a speech at the University of Chicago, as reported by the Oct. 28, 1991 Chicago Daily Law Bulletin:

The construction of the due process clause or as I prefer to call it, the liberty clause, has transformed the Bill of Rights from a mere constraint on federal policy into a source of federal authority to constrain state powers.

Stevens expanded on this speech in a 1992 article, "The Bill of Rights: A Century of Progress." Since then, "liberty clause" has occasionally found its way into case law, but "due process clause" is still overwhelmingly preferred in court decisions. Nonetheless, "liberty clause" remains the phrase of choice (forgive the pun) among pro-abortion-rights senators, who are probably seeking to lend more rhetorical weight to the justification for Roe than the sterile-sounding "due process clause."

The question remains, though: when pro-choice politicians refer to the "liberty clause," is it always exactly synonymous with "due process clause"? This 2003 quote from Sen. Dianne Feinstein about her Republican colleague Rick Santorum would seem to indicate otherwise:

The Senator has talked about the liberty clause. And Roe v. Wade, yes, did come from the liberty clause of the due process clause of the 14th amendment and other parts of the Constitution.

For Feinstein, the "liberty clause" is evidently a subset of the "due process clause," which in turn is a subset of the Fourteenth Amendment. So perhaps for some users of the phrase, "liberty clause" does indeed refer to the single word liberty!

[Update #1: Sean Barrett suggests "unpacking" the due process clause into three components (mini-clauses?)...

"nor shall any state deprive any person of life without due process of law;
nor shall any state deprive any person of liberty without due process of law;
nor shall any state deprive any person of property without due process of law"

This would supply "a fairly natural reading" for "liberty clause," Barrett argues. I do believe that this approaches what Feinstein, for instance, is implying with her use of "liberty clause" as a proper subset of the "due process clause." But as Prof. George points out, shouldn't there then be a "life clause" and "property clause" accompanying the "liberty clause"? Of course, "life" and "property" have not been subject to the contentious reading that "liberty" has in Roe and other cases, so those two elements fade to the background. I prefer thinking of this as a case of synechdoche, where the "liberty" element takes on the greatest significance in the clause and thus names it, even outstripping the "due process" that would normally have the greatest legalistic impact.]

[Update #2: I thought I might be reading a bit too much into Feinstein's reference to "the liberty clause of the due process clause of the 14th amendment" &mdash could this formulation merely be a typo (or speako) for "the liberty clause or the due process clause of the 14th amendment"? But here is Sen. Orrin Hatch using the same phrasing during the Clarence Thomas hearings in 1991:

As you know, the first substantive due process case was the Dred Scott case in 1857. That is where the Supreme Court held that the "Liberty Clause" of the Due Process Clause prevented Congress from forbidding slavery in the territories.

Hatch, by the way, is certainly no pro-choicer; rather, his use of "liberty clause" may have been somewhat ironic, perhaps hinting that he believes the appeal to a constitutional right to "liberty" was applied illiberally in Roe, just as it was in the Dred Scott case. For more on how pro-life conservatives use Dred Scott as a code for talking about their opposition to Roe, see this piece by Timothy Noah on Slate.]

[Update #3: John O'Neil points out an obvious problem with Hatch's use of "liberty clause" (or my initial interpretation of it): the Dred Scott case was decided in 1857, more than a decade before the ratification of the Fourteenth Amendment. The right to substantive due process at issue in Dred Scott derives from the Fifth Amendment ("No person deprived of life, liberty, or property, without due process of law"). This is also commonly referred to as a "due process clause" and is the obvious model for the similar passage in the Fourteenth Amendment, which applied due process restrictions to the states. Hatch seems to be on his own, though, in using the phrase "liberty clause" in reference to the Fifth Amendment rather than the Fourteenth.]

Posted by Benjamin Zimmer at November 4, 2005 12:47 AM