ORDERED LIBERTY

A loosely used term, diversely applied in scholarly literature and judicial opinions, "ordered liberty" suggests that fundamental constitutional rights are not absolute but are determined by a balancing of the public (societal) welfare against individual (personal) rights. In this dialectical perspective, the thesis is "order," its antithesis "liberty"; the synthesis, "ordered liberty," describes a polity that has reconciled the conflicting demands of public order and personal freedom.

Justice BENJAMIN N. CARDOZO'S majority opinion for the Court in PALKO V. CONNECTICUT (1937) provided what was probably the first judicial recognition of "ordered liberty." Acknowledging the difficulty of achieving "proper order and coherence," Cardozo identified some constitutionally enumerated rights that were not of the essence of a scheme of "ordered liberty," and thus not incorporated in the FOURTEENTH AMENDMENT and applied to the states: "to abolish [these rights] is not to violate a principle of justice so rooted in the traditions and conscience of our people as to be ranked fundamental." On the other hand, rights such as "freedom of thought and speech" were "of the very essence of a scheme of ordered liberty" because they constituted "the matrix, the indispensable condition, of nearly every other form of freedom."