Liberty and the constitution

Research output: Contribution to journalArticlepeer-review


The article uses the recent U.S. Supreme Court decision in the same-sex marriage case Obergefell v. Hodges as the springboard for a general enquiry into the nature and existence of a constitutional right to liberty under the American Constitution. The discussion is divided into two main parts. The first examines the meaning and the justifiability of there being a moral right to liberty as a matter of political philosophy. Two such rights are distinguished and defended: first, a right not to be coerced by the state when the state is motivated by improper reasons (prominent among which are paternalistic reasons); and second, a right not to be coerced by the state when there are insufficient justifying reasons for the state to do so, irrespective of how such state coercion may be motivated. Neither right is regarded as absolute, and so it is morally permissible for the state to override such rights in certain circumstances. The second part of the article examines the distinct and additional considerations that must be taken into account when these two moral rights to liberty are fashioned into corresponding legal rights under American constitutional law. Both such rights survive the transformation, but each becomes altered somewhat in its content. This legal transformation includes recognition of the nonabsolute nature of moral rights, such recognition taking the form of some doctrine of compelling state interests. The discussion in these two main parts of the article is prefaced with a defense of the article's use of political philosophy to inform constitutional law, a defense motivated by Chief Justice Robert's denunciation of such an approach to constitutional law in his opinion in Obergefell.

Original languageEnglish (US)
Pages (from-to)156-241
Number of pages86
JournalLegal Theory
Issue number3-4
StatePublished - Dec 1 2015

ASJC Scopus subject areas

  • Philosophy
  • Law


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