Faculty Journal Articles and Book Chapters
ORCID (Links to author’s additional scholarship at ORCID.org)
Abstract
In recent decades, some Justices of the U.S. Supreme Court have questioned the broad definition of liberty that is the basis for the doctrine of substantive due process. In his dissenting opinion in Obergefell v. Hodges, for example, Justice Thomas argued that liberty in the common-law tradition “has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement.” This Article will argue that such a narrow definition excludes many instances in which the common law used “liberty” as a synonym for “privilege” or “entitlement.” Treatises that were well-known to the Framers of the Fifth Amendment discussed various entitlements as examples of liberties. The rights to hold a fair or market were considered liberties, as were the rights to hold court in certain disputes and to select local officials. In addition, statutes from the American colonies used the term “liberties” in a similar way. This broad common-law understanding of liberty must factor into any consideration of the “original” meaning of the term.
Publication Title
San Diego Law Review
Document Type
Article
Keywords
Liberty, substantive due process, common law, constitutional interpretation, originalism, Fifth Amendment, historical entitlements, privileges, English legal history, colonial American law, Obergefell v. Hodges
Recommended Citation
Joshua C. Tate, Liberty as Entitlement in the Common Law, 63 San Diego L. Rev. 283 (2026).
