| Article 3: |
| Everyone has the right to life, liberty and security of person. |
Concepts and IdeasThe Right to LifeThe US Constitution does not address a right to life as such. However, the Fifth Amendment provides that no person shall be deprived of life without "due process of law," and the Fourteenth Amendment protects life similarly against deprivation by the States. In its original conception, the due process clause protected life against deprivation except pursuant to law and with due process of law. With the birth of substantive due process, the Constitution came to protect against official deprivation of life pursuant to laws that were irrational or unreasonable. References See further Henkin, Human Rights at 886. The Right to Liberty and Security of the Person -- "Habeas Corpus"In the common law tradition (that is, the legal tradition of the Commonwealth countries which originated in England, as opposed to the civil law tradition which has its roots in Roman law) the protection of the right to liberty is guaranteed essentially by the writ of Habeas Corpus. This remedy provides an effective means of immediate release from unlawful or unjustifiable detention. According to S A De Smith, quoted by Duker, the writ was first referred to as a "prerogative writ" in 1620 by Chief Justice Montague in Richard Bourn's Case.3 At its inception, habeas corpus was a "high prerogative writ" by which the Crown sought to compel the appearance of a subject before its judicial organ. As it developed into a beneficient remedy, its continued association with the king's personal solicitude for the welfare of its subjects was simply sound politics. The Crown was said to have the right to inquire into the cause for which any of its subjects were deprived of their liberty. By the writ of habeas corpus, the high Court and the judges of that court, at the instance of a subject aggrieved, commanded the production of that subject, and inquired into the cause of its imprisonment. If there were no legal justifications for the detention, the party was ordered released, thus it was often said that habeas corpus is in the nature of a writ of error. In a strict legal sense, "prerogative writ" had become a descriptive term that indicated the writ's extraordinary character; that is to say, habeas corpus issued where the ordinary legal remedies were unavailable or inadequate.4 Although the structure of government and the nature of the US constitutional system have necessitated changes in the scope and function of the writ, its general form and basic purpose have remained unchanged. Before its introduction into the American legal system, habeas corpus had been "esteemed the best and only sufficient defense of personal liberty".5 Sir William Blackstone called it "another Magna Carta."6 In the United States the writ continues as the "symbol and guardian of personal liberty."7 References See Duker at 3-11. US ConstitutionThe interpretation of "liberty" in the Due Process clause of the Fourteenth Amendment as meaning essential individual autonomy was suggested by Justice Field in the dissent in Munn v. Illinois, 94 U.S. 113 (1876), and was not disowned there by the majority of the Court in Munn. An expansive definition of "liberty" was restated twenty years later by Justice Peckham in Allgeyer v. Louisiana, 165 U.S. 502 (1934), and was confirmed and applied in Lochner v. New York, 198 U.S. 45 (1905). Although Lochner was later overruled, the Allgeyer definition has remained the established definition of "liberty" in the Due Process Clauses in both the Fifth and Fourteenth Amendments. The importance of interpreting "liberty" as "autonomy" was much enhanced by the interpretation of the requirement of "due process of law" as providing substantive protection for life, for liberty (autonomy), and for property, against arbitrary action by government. Important "liberty" areas were the fields of economic regulation (the (in)famous Lochner era) and "new privacy." In the first field the US Supreme Court was at first reluctant towards the intrusive New Deal regulation of the economic field but approved it later. The last field only found its protection as "liberty" since the 1960s. In Roe v. Wade, 410 U.S. 113, 152 (1973), the Court concluded "that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation." References See further Henkin, Human Rights, at 176-177. Endnotes
3. S A De Smith, "The Prerogative Writs", 11 Cambridge L.J. 40, 52-53 (1951).
Peter Danchin, Columbia University |