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Jefferson in Context
Andrew Hyman

As noted a few days ago at this blog, Devin Watkins of the Cato Institute is defending the notion of "substantive due process" by (e.g.) quoting Thomas Jefferson.  I want to focus on this Jefferson quote, because Watkins takes it out of context, and the quote actually supports the opposite of what Watkins argues.

Watkins says that, "A person’s liberty is the right to do those acts which do not harm others."  And then he quotes Jefferson, but leaves out the critical bolded words:

[O]f Liberty then I would say that, in the whole plenitude of it’s extent, it is unobstructed action according to our will: but rightful liberty is unobstructed action according to our will, within the limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’; because law is often but the tyrant’s will, and always so when it violates the right of an individual.

Jefferson was entirely correct, if the full quote is considered; the quote is from 1819, but it accurately describes an understanding of "liberty" that existed thirty years earlier when the Due Process Clause was approved.  That clause does not use the term "rightful liberty" but only the term "liberty."  Thus, according to Jefferson's definition of liberty, the clause forbids the government from obstructing anyone in any way, even if the equal rights of others are in jeopardy, except by "due process of law."

Given the meaning of the word "liberty" described by Jefferson, it would make no sense to  demand  "liberty" throughout the country (as judges are wont to do) because then the equal rights of others would be trampled.  Instead, judges are obliged to only strike down legislation under this clause if the legislation runs afoul of "due process of law."  

Even if Watkins' definition of "liberty" were correct, the clause would still obviously allow liberty to be taken away with "due process of law."  More problematically, presidents and governors would be free to stop any person who they think violates the rights of others, even without statutory authorization to stop them (i.e. without due process of law).

Would the Constitution be better if it said what Watkins asserts?  Maybe, maybe not, but currently it says what it says.

One more thing....This Jefferson quote mentions that "law is often but the tyrant’s will."  This was the predominant view of Jefferson's generation, contrary to the frequent refrain nowadays that unjust enactments are not really "law" at all.