Liberty, a term that can be found throughout the document, was something deemed fundamental, and was to be protected. What is liberty? Throughout history, the courts have grappled with this job of defining liberty. They have acknowledged economic as well as private rights under liberty, yet have remained very stingy in creating a more far reaching definition that can be used as a standard by which to judge other cases.

How should the courts determine liberty? What kinds of liberty should be protected by the Constitution? I believe that liberty includes many things. It ought to protect citizens from government intrusion into their private, economic and spiritual lives. The framers of the Constitution intended for the government of the nation to rule so

I suppose that this solution is nearly as vague as the one currently in place, however, I think this helps us draw the conclusion that the framers of the Constitution did not have a particular definition in mind to begin with, which is why it is so difficult to come up with one now. In deciding what is to included under liberty, we must look to the times, the current situation, and suggest that liberty ensures that each person is entitled equal rights, and that no law, state or otherwise, is allowed to unduly restrict someone from living the life they choose without fitting within the perimeters often prescribed for the equal protection clause. It must not be arbitrary or capricious and must be narrowly tailored to fit the state's objective in order to pass the test. This combined with the above ideas would make for a smoother definition of liberty.

This Lochner line of cases dealing with economic rights ends with West Coast Hotel v. Parrish. In West Coast, the courts revert a bit, in that they reaffirm the police power of the states, the right of the states to make laws protecting the health and well being. The court decisions upholds the state's denial to women and minors the right to contract. Not only does this set back the discussion of liberties invested in the Fourteenth Amendment, it goes against Lochner and sets women's equality back in the eyes of the law.

How should the courts determine once and for all what kinds of liberty should be protected? This is a difficult question to answer. The definition of liberty should be fluid enough to guarantee that future interests are foreseen, but not so ambiguous as to create the questions we face today. There have been, throughout the cases I have read, many insights that provide a glimpse of what might be a good definition. In Bowers v. Hardwick, we see liberty defined as something so rooted in the concept of ordered liberty that neither liberty nor justice would exist without it. This is a grand proposal, however it is just as over-arching as the concept liberty in the Fourteenth Amendment, that it would not help in the analysis.

In Lochner, we get our first glimpse of an attempt to pigeonhole liberty rights. The court found that a person's right to contract, ie: entering into, contracting one's services, was a fundamental aspect of liberty. Liberty then equaled, at this point, economic rights. The court acknowledged the existence of the state's need to protect the health of its citizens, however, it cited for the first time that individuals have liberty interests that deserve protection from state infringement.

Chief Justice Brennan in his dissent of Michael v. Gerald, suggests that liberty must include the freedom not to conform. A stagnant society remains unchanged. Here I think we are getting closer. Liberty should protect the individuals right against status quo legislation that prohibits the individual and society to grow. Griswold and Eisenstadt were revolutionary in that they opened, or rather closed, the state's interest in the individual's bedroom. For many years, the state had maintained an interest within the personal aspects of marriage that made it more of a governmental institution than a private union. By recognizing this right to privacy, society benefited and moved forward. If young Americans had not chosen to rebel against the British, would we have a nation today? This freedom not to conform has moved our country forward in many ways. Often, legislators follow paths deeply rooted in tradition, without considering the progress of the times. A definition of liberty that acknowledges this propensity for society to change would be a much more acceptable and appropriate one.

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