"Liberty" is a Big Word, and That’s OK

“Life,” “liberty” and “happiness” are big words. So big they cover a lot of the human experience, not just special slices of it. A recent North Dakota Supreme Court ruling on a challenge to the state’s abortion ban demonstrates how that linguistic reality is unfolding, both to originalist judges and progressive advocates.

Last month, in Access Independent Health Services v. Wrigley, three of the five North Dakota justices concluded the state ban was unconstitutionally vague. That wasn’t enough to declare the law unconstitutional, though, under the state’s supermajority rule. Thus, the two-vote dissent carried the day.

In addition to rejecting the vagueness claim, the dissent considered a challenge under Article I, Section 1 of the state constitution, a “Lockean natural rights guarantee.” Natural rights guarantees have big language textually protecting almost any exercise of individual liberty. North Dakota’s protects, among other things, “certain inalienable rights, among which are those of enjoying and defending life and liberty; acquiring, possessing and protecting property and reputation; [and] pursuing and obtaining safety and happiness.”

Grounded in originalism, the dissent misinterpreted some of these big words — but understandably so, given how the case was argued. Across the country, judges and lawyers alike are trying to make sense of the distinction between “fundamental rights,” which some courts have said are protected by natural rights guarantees, and non-fundamental rights, which usually aren’t. The problem is any such distinction that once existed is dead. Most just don’t realize it yet.

Big words from 1889

In the dissent’s view, North Dakota’s natural rights protections couldn’t possibly reach as many individual liberties as the sweeping language suggests. That would “imply an extraordinarily broad judicial check on legislative power inconsistent with numerous prior cases,” Justice Jerod E. Tufte wrote for the dissent. If all “liberty” and “pursuing happiness” were constitutionally protected, after all, then everything would be protected. And yet, as Tufte implied, back in 1889 when the constitution was adopted, the government did all manner of things that curtained individual liberties via the police power.

Instead, the dissent moved to the opposite extreme, asking if the specific right at issue — abortion — was protected in 1889. Unfortunately, the dissent noted, the convention records provided no indication as to what the delegates thought about Article I, Section 1, let alone how it might apply to abortion. With nothing helpful to draw from the 1889 records, the dissent simply noted that other state courts had enforced their own Lockean guarantees before 1889 — citing the leading article on the subject — but without analyzing how those courts applied the big words like “liberty” and “happiness.” The dissent also failed to discuss other state conventions where delegates did discuss Lockean guarantees, even though (self-promotion alert) I recently summarized them in a handy compendium. Further, the dissent canvassed how other states courts have applied Lockean guarantees to abortion restrictions in recent years — with mixed results — but little of that experience was then applied to the case at hand.

Reasonable Liberty

Least excusably, the dissent failed to engage with North Dakota precedents outside the abortion context, even though it claimed a broad view of the Lockean guarantee would be “inconsistent with numerous past cases.” One, from 1943, is State v. Cromwell. There, the court declared a law requiring a license to work as a photographer unconstitutional. It said “liberty” includes “the right to buy and sell, to select freely such tradesmen as the citizen himself may desire to patronize, to manufacture, to acquire property, to live in a community, to have a free and open market, the right of free speech, of self-defense against unlawful violence, and, in general, the opportunity to do those things which are ordinarily done by free men.”

But wait, you might say, that’s an old case from the tail-end of the Lochner era, in which federal and state courts often found restrictions on economic liberties to be unconstitutional. Indeed, in 1978 the court distinguished Cromwell, substantially narrowing its application. Yet that tension between the sweeping language of the Lockean guarantee and government’s demand to regulate all areas of life — economic and personal — remains. The Wrigley dissent could have profited from Cromwell, concluding that its approach was closer to the original meaning of 1889 than later case law.

But wait once more. Wasn’t Cromwell (and Lochner v. New York itself) from a time during which laissez-faire economics was essentially the law? No! If you believe that, you fall prey to the long-debunked modern myths about Lochner and its era — myths that continue to distort our law today.

Like many Lochner-era decisions, Cromwell said liberty and happiness stand for a wide range of human action which the constitution protects but that the state can nevertheless regulate. Cromwell even said the legislature must be given “a large discretion.” Cromwell’s standard for whether a law regulates too much is whether it is reasonable. Not reasonable under the modern rational-basis test but real reasonableness: “Its real purpose must be to protect the public health, morals or general welfare,” based on actual facts.

This is an eminently — dare I say — reasonable way to square the grand language of Article I, Section 1 with the reality that the people of 1889 North Dakota were accepting of the police power. Liberty is generally protected, yet government can nevertheless regulate if its actions are justified with facts and reason.

Under this approach the question is not whether “abortion” specifically was considered a protected right in 1889. It is whether a restriction on liberty is an unreasonable use of the police power given the facts and the public interest. Some cases will be easier than others, of course. Licensing the occupation of taking people’s photos sounds like a silly idea and I doubt it would stand. For abortion the issue is, unsurprisingly, more complicated: The woman’s right to her own body on the one side and the question of the life — or potential life — on the other.

Fundamental Changes

To give the dissent a break, there’s a reason this view doesn’t arise in this case or, indeed, in other recent abortion cases in state supreme courts: No party advocated for it. The analysis in Cromwell does not recognize the “fundamental rights” v. “non-fundamental rights” dichotomy of modern constitutional law, spawned from footnote four of the U.S. Supreme Court’s 1938 decision in United States v. Carolene Products. Under the modern approach, if a right is “fundamental” it gets strict scrutiny and the government will almost always lose. If not, rational basis applies and the government almost always wins. I can see why an advocate would stack chips on “fundamental rights.” But it’s not going to work much longer, especially if judges take a pre-1938 originalist outlook.

The full implications for state constitutional litigation of the jurisprudential evolution from Carolene Products through today’s originalism is far too big a topic to do justice to here. (I talk a bit about it in my book.) To summarize my two cents: State constitutions, particularly Lockean guarantees, aren’t built for a “fundamental rights” dichotomy. The text protects all liberties, not just the few cherry-picked, privacy-grounded rights the Supreme Court anointed as fundamental in the years after its 1965 case barring states from preventing married couples from accessing contraception, Griswold v. Connecticut. Economic liberties are protected just as much as personal liberties. But you can’t have strict scrutiny across the board. Instead, embrace real reasonableness.

Make Lochner Your Friend

This means that both judges and advocates should reacquaint themselves with cases like Cromwell and — yes — Lochner. Many champions of modern fundamental rights have for decades shoved Lochner and economic liberties to the anti-canon while making increasingly epicyclic excuses for that distinction. That paradigm is over. Constitutions use big words. It’s time to enforce them. With reason.

Anthony Sanders is the director of the Center for Judicial Engagement at the Institute for Justice.

Suggested Citation: Anthony Sanders, “Liberty” is a Big Word, and That’s OK, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Dec. 5, 2025), https://statecourtreport.org/our-work/analysis-opinion/liberty-big-word-and-thats-ok