Exploring Civil and Economic Freedom

Liberty and the Supreme Court

A document-based question that explores the ways the concepts of liberty and property have been understood over time in the United States and, in particular, how the Supreme Court has interpreted liberty.

Founding Principles

Inalienable / Natural Rights image

Inalienable / Natural Rights

Freedoms which belong to us by nature and can only be justly taken away through due process.

Liberty image

Liberty

Except where authorized by citizens through the Constitution, the government does not have the authority to limit freedom.

Limited Government image

Limited Government

Citizens are best able to pursue happiness when government is confined to those powers which protect their life, liberty, and property.

Property Rights image

Property Rights

The natural right of all individuals to create, obtain, and control their possessions, beliefs, faculties, and opinions, as well as the fruits of their labor.

Case Background

John Locke wrote that the reason men choose to form communities is “for the mutual preservation of their lives, liberties and estates, which I call by the general name, property.” Echoing Locke, the iconic second paragraph of the Declaration of Independence explains that the purpose of legitimate government is protect inalienable rights such as life and liberty, and to provide a structure that allows people to freely pursue happiness. The inextricable relationship between liberty and happiness was familiar to eighteenth century Americans. Founding charters and state constitutions of all 13 original states, from 1601 to 1786, include the promotion of liberty, safety, and happiness as goals of government.

To Americans of the seventeenth and eighteenth centuries, “happiness” encompassed much more than just individual pleasure, but also referred to the freedom to take care of oneself and one’s family, to build wealth, and enjoy the fruits of one’s labor. Happiness was attained by living in liberty and by practicing virtue. The Oxford English Dictionary includes this citation from Isaac Watts’s Logick in 1725: “Happiness consists in the attainment of the highest and most lasting natural good.”

Also included in the understanding of liberty in early America was the right to control one’s own property. Locke’s definition of property included “estates” – physical possessions like land and cattle – but also included the “liberty to follow my own will in all things” within a structure that protects that same liberty for everyone else. In his essay On Property (1792), James Madison also emphasized the connection between liberty and property. It was the natural right of all individuals to create, obtain, and control their possessions, beliefs, faculties, and opinions, as well as the fruits of their labor.

This document-based question explores the ways the concepts of liberty and property have been understood over time in the United States, and in particular how the Supreme Court has interpreted the right to liberty.

Key Question

Evaluate the Supreme Court’s interpretation of the constitutional principles of liberty over time.

Directions

Read the Case Background and Key Question. Then analyze the Documents provided. Finally, answer the Key Question in a well-organized essay that incorporates your interpretations of the Documents as well as your own knowledge of history.

Learning Objectives

  • Students will trace major events and controversies related to the Supreme Court’s interpretation of the principle of liberty.
  • Students understand and apply constitutional principles to evaluate the Supreme Court’s rulings in cases related to inalienable rights including property rights.

Activities

  1. To prepare students for his lesson, have them read the Background Essay.
  2. Lead students to consider Document B, from the Declaration of Independence, to clarify differences between the Founders’ understanding of “happiness,” and the common usage of that term today.
  3. Direct students to read Document A, from John Locke’s Second Treatise of Civil Government, to clarify that Locke understood the term, “property” to include “Lives, Liberties, and Estates.” That is, to Locke, property included not only one’s physical possessions, but also one’s liberty itself.
  4. Use Document D, excerpts from Madison’s essay “On Property” to show similarities between Locke’s view and Madison’s view. Students should understand that, to the Founding generation, the definition of “property” was much deeper and richer than just one’s physical possessions. Emphasize Madison’s point that “Government is instituted to protect property of every sort…”
  5. Use Documents E and F, the Fourteenth Amendment and the Slaughterhouse Cases decision, to help students analyze these three clauses of the Fourteenth Amendment: Privileges or Immunities Clause, Due Process Clause, and Equal Protection Clause.
  6. Use Document G, “This is One of a Hundred Murdered,” to help students understand the Triangle Factory Fire and its effects.
  7. Assign appropriate documents for students to examine independently or in small groups. If it is necessary to abbreviate the lesson, it is recommended that students at least discuss in depth Documents H, I, J, K, L, and M because these Supreme Court cases illustrate a turning point in the Court’s interpretation of property rights relative to other civil rights.
  8. You may wish to use one or both of these graphic organizers to help students understand the changes over time in the Supreme Court’s handling of property rights: Classifying Liberty and Liberty Timeline and Scorecard.
  9. Use key question, “Evaluate the Supreme Court’s interpretation of the constitutional principle of liberty over time” for class discussion or writing assignment.

See RESOURCES for additional Graphic Organizers.

Materials

  1. John Locke, Second Treatise of Civil Government (1690)
  2. Declaration of Independence (1776)
  3. The United States Constitution and Amendments (1789-1791)
  4. James Madison, On Property (1792)
  5. The Fourteenth Amendment (1868)
  6. Slaughterhouse Cases (1873)
  7. This is One of a Hundred Murdered (1911)
  8. Meyer v. State of Nebraska (1922), Majority Opinion
  9. Pierce v. Society of Sisters (1924), Unanimous Opinion
  10. Schechter Poultry Corp. v. U.S. (1935), Unanimous Opinion
  11. Palko v. Connecticut (1937), Majority Opinion
  12. West Coast Hotel Co. v. Parrish (1937), Majority Opinion
  13. U.S. v. Carolene Products, Footnote 4 (1938)
  14. Griswold v. Connecticut (1964), Majority Opinion
  15. Lawrence v. Texas (2002), Majority Opinion

Background Information

Documents E and F
The Fourteenth Amendment, Document E, includes three clauses that prohibit the states from making laws that infringe on individual liberty: the Privileges or Immunities Clause, the Due Process Clause, and the Equal Protection Clause. Just five years after this amendment was ratified, the Supreme Court took the opportunity to interpret it, and effectively gutted the Privileges or Immunities Clause in the Slaughterhouse cases, Document F. Just upstream from New Orleans, butchers processed thousands of animals each year, often dumping their waste into backwaters of the Mississippi River. This resulted in many problems for the city, including repeated outbreaks of cholera. In 1869 the Louisiana legislature required the city to create a corporation that centralized all slaughterhouse operations downstream of the city, resulting in a monopoly. The Butchers’ Benevolent Association sued to stop this takeover of the slaughterhouse business, referring to all three clauses of the Fourteenth Amendment. They argued that they had been deprived of their right to exercise their trade and earn an honest living. In a 5-4 decision, the U.S. Supreme Court majority focused its ruling in this case on only the Privileges or Immunities Clause, and read it narrowly. Justice Samuel Freeman Miller wrote in the majority opinion that the Fourteenth Amendment did not restrict the police powers of the state. The right to earn a living in one’s chosen trade was not included in the Fourteenth Amendment’s protections.

Document G: This is One of a Hundred Murdered (1911)
The Triangle Waist Company’s owners, Max Blanck and Isaac Harris, were indicted and tried on charges of manslaughter, but they were acquitted. Their attorney had argued that the prosecution failed to prove that Blanck and Harris knew the exits were locked during work hours. The tragedy led to reform movements focusing on worker rights to unionize and on workplace safety. The New York legislature created the Factory Investigating Commission, whose investigation revealed that many businesses maintained dangerous facilities where workers were often in jeopardy of fire, illness, injury, or death. The Commission recommended a variety of new laws to protect workers, ranging from fire safety to more sanitary conditions and limits on the number of hours that women and children could work. Almost all of the recommended laws were enacted in New York, and a similar movement swept other states, as well.

Document H: Meyer v. State of Nebraska (1922), Majority Opinion (7-2)
In 1919, Nebraska’s legislature passed a law severely restricting foreign-language instruction. Justice McReynolds wrote for the majority that the law violated the Due Process Clause of the Fourteenth Amendment, arbitrarily depriving teachers and parents of liberty.

Document I: Pierce v. Society of Sisters (1924), Unanimous Opinion
In 1922, Oregon voters passed an initiative amending Oregon’s Compulsory Education Act seeking to eliminate parochial schools. Justice McReynolds wrote for a unanimous court that parents’ choice to send their children to private schools was part of the liberty protected by the Fourteenth Amendment. The Court ruled that the amended law unjustly interfered with freedom of both schools and families.

Document J: Schechter Poultry Corp. v. U.S. (1935), Unanimous Opinion
During the Great Depression, the U.S. government acted to control the economy in many ways. One of the most important of the New Deal laws, the National Industrial Recovery Act, created codes of fair competition and attempted to keep wages and prices up by imposing many very specific regulations on businesses across the country. The Schechter brothers, who were Jewish immigrants, ran two butcher shops in Brooklyn according to the laws of Kashrut, which include strict adherence to safe and ethical practices. During the summer of 1934, NRA (National Recovery Administration) inspectors repeatedly visited the Schechters’ shops, charging them with many violations of NRA rules, including the selling of “sick chickens.” Chief Justice Charles Evans Hughes wrote for a unanimous court that the NRA regulations violated the separation of powers doctrine, and that these regulations exceeded Congress’s power under the Commerce Clause.

Document K: Palko v. Connecticut (1937), Majority Opinion (7-1)
Frank Palka, whose name was misspelled in the Court’s official records, killed two police officers in the course of a robbery. He was convicted of second degree murder and sentenced to life in prison. Prosecutors, however, wanted him to receive the death penalty, and moved to retry him according to Connecticut law. In this second trial, Palka was found guilty of first-degree murder and sentenced to be executed. Palka’s lawyer argued that the Fifth Amendment’s protection against double jeopardy should be applied to the state through the Fourteenth Amendment’s Due Process Clause. Justice Cardozo wrote for the majority that the Fifth Amendment’s protection against double jeopardy is not included in the Fourteenth Amendment’s Due Process Clause. Only those rights “essential to a fundamental scheme of ordered liberty” are incorporated. Palka was executed in 1938. The Court reversed the Palko decision in the 1969 case, Benton v. Maryland, ruling that protection against double jeopardy is applied to the states through the Due Process Clause.

Document L: West Coast Hotel Co. v. Parrish (1937), Majority Opinion (5-4)
From 1897 to 1937 the Court interpreted the Due Process Clause of the Fourteenth Amendment as protecting economic rights to the same degree as other personal rights. The Supreme Court’s majority opinion, authored by Chief Justice Hughes, upheld the constitutionality of Washington state’s minimum wage law, taking a new approach to the concept of liberty of contract.

Document M: U.S. v. Carolene Products, Footnote 4 (1938)
In this footnote in a case involving the production of “filled milk” (skimmed milk with vegetable oil added to give it the consistency of cream) the Court gave the presumption of constitutionality to economic regulation, with no requirement under the “rational basis” test for the government to prove the law is necessary and proper. It established a hierarchy of rights that gave a higher level of protection to expressive rights than to property rights.

Document N: Griswold v. Connecticut (1964), Majority Opinion (7-2)
Justice William O. Douglas authored the majority opinion in this case. The Court invalidated a Connecticut law that had prohibited doctors from providing married couples with contraception. The Court found a right to privacy by taking together the First, Third, Fourth, and Ninth Amendments.

Document O: Lawrence v. Texas (2003), Majority Opinion (6-3)
Justice Kennedy wrote the majority opinion in this case, in which the Court overturned a Texas law prohibiting same-sex sexual activity. The Court ruled that such intimate conduct between consenting adults is included in the liberty protected under the Fourteenth Amendment.

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