Gay Marriage LIBERTY v LIBERTY INTEREST
Supreme Court of the
OBERGEFELL ET AL. v. HODGES, ET AL 14-556, 576 U.S. ___ (2015)
(Page 78) Justice Thomas, with whom Justice Scalia joins, dissenting.
(Pg 80) State decisions interpreting these provisions between the founding and the ratification of the Fourteenth Amendment almost uniformly construed the word “liberty” to refer only to freedom from physical restraint. See Warren, The New “Liberty” Under the Fourteenth Amendment, 39 Harv. L. Rev. 431, 441–445 (1926). Even one case that has been identified as a possible exception to that view merely used broad language about liberty in the context of a habeas corpus proceeding—a proceeding classically associated with obtaining freedom from physical restraint. Cf. id., at 444–445.
(P. 83) When read in light of the history of that formulation, it is hard to see how the “liberty” protected by the Clause could be interpreted to include anything broader than freedom from physical restraint.
And this Court’s earliest Fourteenth Amendment decisions appear to interpret the Clause as using “liberty” to mean freedom from physical restraint. In Munn v. Illinois, 94 U. S. 113 (1877) ,
The Constitution does not secure to any one liberty to conduct his business in such fashion as to inflict injury upon the public at large, or upon any substantial group of the people. …. any other form of regulation, is unconstitutional only if arbitrary, discriminatory, or demonstrably irrelevant to the policy the Legislature is free to adopt, and hence an unnecessary and unwarranted interference with individual liberty. Nebbia v. New York, 291 U.S. 502, 538-39 (1934).
But it is equally true that in every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand. Jacobson v. Massachusetts, 197 U.S. 11, 27 (1905).
“ ‘Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is, then, liberty regulated by law.’” Jacobson v. Massachusetts, 197 U.S. 11, 26 -27 (1905) Crowley v. Christensen 137 U.S. 86, 89, 90
Liberty is freedom from bodily restraint. Liberty is the freedom from unreasonable searches and seizures. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 848 (1992).
Liberty is freedom from all restraints but such as…. are justly imposed by law. Slaughter-House Cases, 83 U.S. 36, 127 (1873).
By the term "liberty," …..freedom from physical restraint or the bounds of a prison. Munn v. Illinois, 94 U.S. 113, 142 (1876)
"liberty"……freedom from bodily restraint. Bolling v. Sharpe 347 U.S. 497, 499 (1954)
"No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." Terry v. Ohio 392 U.S. 1, 9 (1968).
It must be recognized that, whenever a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person. Terry v. Ohio, 392 U.S. 1, 13 (1968).
A "seizure" triggering the Fourth Amendment's protections occurs only when government actors have, by “means of physical force or show of authority, . . . in some way restrained the liberty of a citizen.” Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968).
An arrest is the initial stage of a criminal prosecution. It is intended to vindicate society's interest in having its laws obeyed, and it is inevitably accompanied by future interference with the individual's freedom of movement, whether or not trial or conviction ultimately follows.Terry v. Ohio 392 U.S. 1 at 26.
A full custodial arrest is …a severe intrusion on an individual's liberty, its reasonableness hinges on "the degree to which it is needed for the promotion of legitimate governmental interests.” Wyoming v. Houghton, 526 U.S. 295, 300 (1999).
“ ‘Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling.’” Griswold v. Connecticut, 381 U.S. 479, 497, 85 S. Ct. 1678 (1965); Bates v. Little Rock, 361 U.S. 516, 524, 80 S. Ct. 412,417 (1960); Roe v Wade, 410 U.S. 113, 155, 93 S.Ct 705, 35 (1973); Ravin v. State of Alaska, 537 P. 2d 494, 497 (1975).
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