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Minnesota Law Review


abortion, liberty, life, Roe v. Wade


The legal controversy over abortion has been a dispute about constitutional “liberty.” Constitutional debate has ranged far and wide over questions of natural law, interpretative method, and judicial function, yet liberty remains the focal point. It is widely believed that if abortion and privacy rights derive from anything in the Constitution, they derive from “liberty,” and that if anything in the Constitution tells us how to treat those rights, “liberty” does. Part I outlines the present day controversy over liberty and abortion, including the multiple, conflicting opinions in Casey. Part II examines the phrase “life, liberty, or property,” and the meaning of its component rights, in the era before the American Revolution. This history begins with the Magna Carta and reaches a crucial stage in seventeenth century England, when social contract theory appeared. Part III, which surveys the meaning of “life, liberty, or property” during the American revolutionary era, concludes that the Framers adopted the Lockean, social contract meaning of that phrase. Part IV describes the movement away from social contract conceptions during the Lochner era, when the Court defined “liberty” to mean “freedom from restraint.” Part V argues that each of modern liberty's three strands-incorporation of the Bill of Rights, rational review of social and economic legislation, and protection of fundamental rights-recreates earlier social contract conceptions, and that modern “privacy” recreates the social contract right of “life.” Finally, Part VI reexamines the abortion debate in light of the historic concepts of “life” and “liberty.” It argues that historic “life” provides an ample warrant for the right of abortion, that Roe's opponents employ a conception of liberty that the Framers rejected, and that strict scrutiny aptly implements our historic rights.