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The state of being free; enjoying various social, political, or economic rights and privileges The concept of liberty forms the core of all democratic principles. Yet, as a legal concept, it defies clear definition.

The modern conception of liberty as implying certain fundamental or basic rights dates back to the writings of seventeenth- and eighteenth-century theorists such as Francis Hutcheson and JOHN LOCKE. Hutcheson believed that all people are equal and that they possess certain basic rights that are conferred by NATURAL LAW. Locke postulated that humans are born with an innate tendency to be reasonable and tolerant. He also believed that all individuals are entitled to liberty under the natural law that governed them before they formed societies. Locke's concept of natural law required that no one should interfere with another's life, health, liberty, or possessions. According to Locke, governments are necessary only to protect those who live within the laws of nature from those who do not. For this reason, he believed that the power of government and the rule of the majority must be kept in check, and that they are best controlled by protecting and preserving individual liberties. Locke's philosophies gave rise to the SEPARATION OF POWERS and the system of checks and balances that are the basis of U.S. government.

Limitless freedom is untenable in a peaceful and orderly society. Yet, the founders of the United States were concerned that individual liberty interests be adequately protected. Echoing Locke's natural-law theory, the Declaration of Independence states that all people have inalienable rights, including the right to life, liberty, and the pursuit of happiness. Similarly, the Preamble to the Constitution outlines the Framers' intent to establish a government structure that ensures freedom from oppression. It reads, in part, "We the People … in Order to … secure the Blessings of Liberty to ourselves and our Posterity…." The BILL OF RIGHTS sets forth a number of specific protections of individual liberties.

Through these documents, U.S. citizens are guaranteed FREEDOM OF SPEECH, press, assembly, and religion; freedom from unreasonable SEARCHES AND SEIZURES; and freedom from SLAVERY or involuntary servitude. Criminal law and procedure require that a person may not be detained unlawfully and that a person who is accused of a crime is entitled to reasonable bail and a SPEEDY TRIAL. The right to be free from unlawful detention has been interpreted to mean not only that the government may not deprive a person of liberty without DUE PROCESS OF LAW, but also that a citizen has a right "to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his living by any lawful calling; and to pursue any livelihood or vocation" (Allgeyer v. Louisiana, 165 U.S. 578, 17 S. Ct. 427, 41 L. Ed. 832 [1897]). State governments may not regulate individual freedom except for a legitimate public purpose and only by means that are rationally designed to achieve that purpose (see Nebbia v. New York, 291 U.S. 502, 54 S. Ct. 505, 78 L. Ed. 940 [1934]).

The liberties guaranteed to individuals are not granted without restriction. Throughout U.S. history, the U.S. Supreme Court has held that individual freedom may be restricted when necessary to advance a compelling government interest, such as public safety, national security, or the protection of the rights of others. Countless cases have litigated the parameters of justifiable government restriction. In one such case, Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 103 S. Ct. 948, 74 L. Ed. 2d 794 (1983), the Court found that the content of a message delivered in a public forum may be restricted if the restriction serves a compelling state interest and is narrowly drawn to achieve that interest. Restrictions on speech in a public forum also may be upheld if the expressive activity being regulated is a of type that is not entitled to full FIRST AMENDMENT protection, such as OBSCENITY. If a restriction on speech deals only with the time, place, and manner of the activity, it need only serve a significant government interest and allow ample alternative channels of communication (see Perry). In such an instance, the law does not need to be the least restrictive alternative; it is necessary only that the government's interest would be achieved less effectively without it and that the means chosen are not substantially broader than necessary to achieve the interest (Ward v. Rock against Racism, 491 U.S. 781, 109 S. Ct. 2746, 105 L. Ed. 2d 661 [1989]).

The Court has held that the government may infringe on a person's FREEDOM OF ASSOCIATION by punishing membership in an organization that advocates illegal conduct if the defendant had knowledge of the group's illegal objectives and had the SPECIFIC INTENT to further them (see Scales v. United States, 367 U.S. 203, 81 S. Ct. 1469, 6 L. Ed. 2d 782 [1961]; Noto v. United States, 367 U.S. 290, 81 S. Ct. 1517, 6 L. Ed. 2d 836 [1961]).

The Court has also determined that when competing liberty interests clash, the majority may not necessarily impose its belief on the minority. In ABINGTON SCHOOL DISTRICT V. SCHEMPP, 374 U.S. 203, 83 S. Ct. 1560, 10 L. Ed. 2d 844 (1963), the Court held that the freedom to exercise one's religion does not extend to prayer sessions in public schools, even if the proposed prayer is nondenominational and favored by the majority. Justice TOM C. CLARK, writing for the majority, emphasized that the freedom to exercise one's religion ends when it infringes on another's right to be free from state-imposed religious practices. He wrote, "While the Free Exercise Clause clearly prohibits the use of STATE ACTION to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs." The Court reaffirmed its holding that the Free Exercise Clause does not allow the majority to impose its beliefs on the minority in WALLACE V. JAFFREE, 472 U.S. 38, 105 S. Ct. 2479, 86 L. Ed. 2d 29 (1985).

The Court has engendered bitter and sustained controversy with its defense of privacy rights in cases such as ROE V. WADE, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), which found the constitutional right to privacy to include the right to obtain an ABORTION. Critics of such decisions contend that such liberties are not enumerated in the Constitution and that the Court should uphold only rights found in the Constitution. But the Court has consistently held that the liberties enumerated in the Constitution are a continuum that, in the words of Justice JOHN MARSHALL HARLAN, "includes a freedom from all substantial ARBITRARY impositions and purposeless restraints … and which also recognizes … that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgement" (Poe v. Ullman, 367 U.S. 497, 81 S. Ct. 1752, 6 L. Ed. 2d 989 [1961]).

The Court justified its findings of liberty rights that are not enumerated in the Constitution by stating that some rights are basic and fundamental, and that the government has a duty to protect those rights. It has held that the Constitution outlines a "realm of personal liberty which the government may not enter." As an example, it noted that marriage is not mentioned in the Bill of Rights and that interracial marriage was illegal in many places during the nineteenth century, but that the Court has rightly found these activities to be within the liberty interests guaranteed by the Constitution.

The Court has repeatedly held that individual liberties must be protected no matter how repugnant some find the activity or individual involved. For example, in Planned Parenthood v. Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 28 674 (1992), the Court stated, "Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code." In West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943), the Court invalidated a law mandating that all students salute the flag, and in TEXAS V. JOHNSON, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 (1989), it invalidated a law prohibiting burning of the flag. In all of these cases, the Court emphasized that individuals may disagree about whether the activity is morally acceptable, but the liberty inherent in the activity may not be proscribed even if a majority of the populace thinks that it should be.

Justice LOUIS D. BRANDEIS summarized the Court's general wariness of government intrusion into liberty interests, in Whitney v. California, 274 U.S. 357, 47 S. Ct. 641, 71 L. Ed. 1095 (1927): "Those who won our independence believed that the final end of the state was to make men free." The Court will continue to grapple with the extent to which organized society may restrict individual liberty without violating that mandate.


Burris, Alan. 1983. A Liberty Primer. Rochester, N.Y.: Society for Individual Liberty.

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