Frank Michelman has posted a new paper on SSRN:
The Priority of Liberty: Rawls and a 'Warren Court Model'
In the United States, exceptionally, an established judicial protocol for constitutional clearance of legislative incursions on freedom of action sets up a two-track scheme, prescribing searching review for a defined subset of such incursions and merely cursory review for the rest. The model further sets up a general standard of “fundamentality” by which to sort such incursions into the two classes, rather than relying on a name-by-name specification of protected liberties drawn directly from the text of the bill of rights. Political Liberalism, I argue, would be at home with both these features of the U.S. jurisprudence. The role assigned by that jurisprudence to fifth and fourteenth amendment “liberty” is matched by the role assigned to “liberty of conscience” in Rawlsian political philosophy; while the second principle of justice (and not, as might appear, any Rawlsian philosophical denial of value to freedom of action “as such”) points toward a refusal of strict-scrutiny protection for freedom of action across the board. In a Rawlsian well-ordered society, two-track scrutiny would be understandable as a device for holding the two principles of justice in equipoise.
This paper is under preparation for inclusion in a forthcoming collection: Thom Brooks & Martha Nussbaum (eds) - "Rawls’s Political Liberalism" (Columbia University Press, 2012).
Frank Michelman is Professor of Law at Harvard Law School, Harvard University.