COMMENTS MARCH 2023

Tell us what you think via @statebaroftexas, tbj@texasbar.com, or P.O. Box 12487, Austin, TX 78711-2487. Letters addressed to the Texas Bar Journal may be edited for clarity and length and become the property of the magazine, which owns all rights to their use.

“OPINION: THE DISORDERLY ORIGIN OF ‘ORDRED LIBERTY,’” JANUARY 2023, P. 30
In his article titled “The Disorderly Origin of ‘Ordered Liberty,’” Christopher Pace suggests the Supreme Court will replace or abandon the “ordered liberty” standard with a “more workable, predictable, comprehensible” norm with which it will assess substantive due process claims. Unfortunately, Pace never explains why the court might abandon the concept of “ordered liberty,” an explanation sorely needed since it does so much work in the majority’s jurisprudence. (Nor does he address the related highly relevant questions of what unenumerated rights will continue to be valid in light of the “ordered liberty” norm, or what justifications will be used to find there are any substantive due process norms at all.) One could be forgiven for thinking that the court uses that phrase as a stand-in for natural law, a development in Christian/Catholic theorizing beginning with Augustine. The question of how anyone can tell with democratic certainty there is a natural law against abortion is beside the point. Dobbs can be read as intentionally inscribing such a norm into our constitutional jurisprudence, and if that is the case, the mere assertion without explanation that the norm will just go away seems fanciful. Would that it were so.

The idea we might live under a juristocracy was unimaginable a few years ago, but here we are. If that continues to be the case, and all signs indicate for the foreseeable future it will be, such phrases as “ordered liberty” will continue to be more valuable than ever, as they are empty forms the juristocracy can fill with its preferred content.

John Lunstroth
Houston