I wish to apply Justice Thompson's discussion of the nature of liberty in a more general context in addressing fundamental questions of constitutional interpretation. Justice Thompson's essential inquiry is, "Should the enforcement of morals be the concern of the law?" I take the liberty of slightly rephrasing that question: "Is the enforcement of traditional moral norms per se constitutional?" I suggest that the answer to this question is "no." Courts and scholars have often confused our moral traditions with our traditions of liberty and equality. My central premise is that it is for the legislature to enact morality into law, and it is for the courts to determine when moral norms infringe upon constitutionally guaranteed liberty and equality. The difficult problem is to develop a coherent theory of liberty and equality.
Huhn, Wilson Ray
"Mill's Theory of Liberty in Constitutional Interpretation,"
Akron Law Review: Vol. 22
, Article 3.
Available at: http://ideaexchange.uakron.edu/akronlawreview/vol22/iss2/3