Degree Year


Document Type


Degree Name

Bachelor of Arts




Harry Hirsch


Jurisprudence, Supreme Court, Michael H. v. Gerald D., DeShaney v. Winnebago County, Roe v. Wade, Lawrence v. Texas


My goal is to look at four Supreme Court cases- DeShaney v. Winnebago County (1989), Michael H. v. Gerald D. (1989), Roe v. Wade (1973), and Lawrence v. Texas (2003)- to see how the differences in the levels of generality between liberal and conservative justices actually manifest themselves in their respective opinions. I focus on methodological patterns in the liberal opinions in search of a more coherent liberal jurisprudence. This stems from establishing more definitive guidelines for how best find the level of generality that will maximize the ability to legally justify rights expansion. I end my discussion by applying my conjecture of the most appropriate level of generality in liberal jurisprudence to the future of same-sex marriage. This practical application of how to further the liberal jurisprudential agenda is put to the test when viewed in light of one of the most timely rights-based issues today.

After a basic introduction in Part I, Part IIA begins by grounding my analysis within a theoretical discussion of the respective liberal and conservative assumptions behind their methodologies in due process cases involving substantive individual rights. I provide a basic overview of the fundamental constitutional theories that define liberal and conservative jurisprudence. These theories include originalism, textualism, history and tradition, and the moral reading. Since the justices use these theories in different ways to derive both narrow and broad interpretations of the Constitution's authority, it is necessary to understand what they entail at their cores. Part IIB narrows the discussion to understanding these theories in relation to the Due Process Clause of the Fourteenth Amendment, as it is drawn upon in individual rights cases. I provide an overview of how the Court's interpretation of the Due Process Clause is unique in nature with regard to its high level of ambiguity. As such, the conservatives are able to defend their overly narrow methodologies, and the liberals are able to defend their more general methodologies, both based upon the same brief fragment of language.

Part III places this theoretical framework within a case-based context to show how the aforementioned methods of interpretation are practically employed in liberal and conservative opinions. Part IIIA focuses on family rights in DeShaney v. Winnebago County (1989) and Michael H. v. Gerald D. (1989). Part IIIB focuses on abortion rights in Roe v. Wade (1973). Part IIIC focuses on gay rights in Lawrence v. Texas (2003). Through this case-based analysis, an image emerges of how the Court has (or has not) protected privacy rights in the context of family institutions, procreation choice, and sexual autonomy. The justices argue about how these rights can be derived from the text itself, and from its guidelines on how to interpret history and tradition. Through dissecting the language of the opinions in these cases, I evaluate when and where the liberal justices draw upon the same problematic methodologies as the conservative justices, and where they deviate and subsequently work towards establishing a more coherent liberal methodology.

Part IV looks at the methodological patterns in liberal jurisprudence in these rights cases to discover a solution as to what level of generality should be employed. The goal is not to focus on a solution that does justice to my in-depth look at the problem. Rather, it is simply to briefly discuss the avenues that should be explored to potentially resolve some of the issues of the inconsistencies of liberal jurisprudence.

Part V concludes with a study of the future of liberal jurisprudence, focusing on the future of same-sex marriage. The ultimate focus is on same-sex marriage because it is an issue still being battled within the courts. This conclusion looks at the practical effects that will arise in upcoming cases from the liberals' inconsistent approaches.