The Disorderly Origin of ‘Ordered Liberty’

This article was originally published in Texas Bar Journal. Any opinions in this article are not those of Winston & Strawn or its clients. The opinions in this article are the authors’ opinions only. 

Dobbs v. Jackson obbs v. Jackson Women’s Health Organization reintroduced into the common legal lexicon a phrase few lawyers have heard since their constitutional law classes in law school. The phrase is “ordered liberty,” as in a right is guaranteed by the 14th Amendment’s due process clause only if it is “‘deeply rooted in this Nation’s history’ and ‘implicit in the concept of ordered liberty.’” It is a peculiar phrase used not just once or twice in Dobbs, but 10 times
across the lengthy majority opinion and twice more in the concurring opinions.

Many are debating right now what substantive due process rights previously recognized by the U.S. Supreme Court can pass muster as being “implicit in the concept of ordered liberty”—same-sex marriages, same-sex sexual relationships, birth control, etc. This, however, may focus on the wrong question. Rather, the real question may be whether the court will replace the current “ordered liberty” standard altogether with a more workable, predictable, comprehensible model to judge future substantive due process cases.

The problem with “ordered liberty” as a constitutional touchstone stems from its very origin. Justice Benjamin N. Cardozo grafted the standard onto the 14th Amendment’s due process clause in a 1937 case, Palko v. Connecticut. He did not cite to a direct source for this new standard but simply announced it as his synthesis of recent Supreme Court decisions: “In these [decisions] and other situations immunities that are valid as against the federal government by force of the specific pledges of particular amendments have been found to be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment, became valid as against the [S]tates. 

The phrase “ordered liberty” was not new to constitutional discourse. It is most famously attributed to President George Washington. Closer in time to Palko, it is a phrase that was frequently used by President Herbert Hoover—the president who nominated Justice Cardozo to the U.S. Supreme Court. Neither president, however, used the phrase to describe either due process or the Bill of Rights but instead to epitomize the benefits of democracy, the rule of law, and/or the American form of government. Secretary of State Bainbridge Colby captured this sense of “ordered liberty” when he invoked the phrase in his 1920 “Loyalty” speech, proclaiming: “America stands for individual liberty, but that means an ordered liberty. A liberty subject to law and subordinate to the common welfare.” So while Justice Cardozo may not have coined the phrase “ordered liberty,” he did mint a new and novel use of the phrase.

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