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date: 24 June 2019

Abstract and Keywords

This chapter distinguishes three principal strategies through which the U.S. Constitution is said to protect liberty: the design of the Constitution as a whole; the Constitution’s structural arrangements, particularly separation of powers and federalism; and the protection of individual rights. In focusing on the third strategy, the chapter observes that the Fourteenth Amendment includes three clauses that might serve as textual bases for protecting fundamental rights or liberties: the privileges or immunities clause, the due process clause, and the equal protection clause. It examines protection of liberty through the due process clauses of the Fifth and Fourteenth Amendments. The chapter considers two conceptions of liberty, positive and negative, as well as two components of liberty: the Fourteenth Amendment doctrine of “incorporation” and the Fifth and Fourteenth Amendment doctrine of “substantive due process” It then discusses many issues surrounding “substantive due process.”

Keywords: liberty, Constitution, Fourteenth Amendment, Fifth Amendment, incorporation, substantive liberties, substantive due process, privileges or immunities, due process clause, equal protection clause

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