The Tipsy Teetotaler ن:
One of the battles in many if not most Supreme Court cases is the “level of generality” of the “question presented.” The higher the level of generality, the more the court can just make up answers.
In the article linked in this reply, for instance, the discussion is about the court in Obergefell (the same-sex marriage case) deciding that the case was about a very-high-generality “fundamental right to marry,” concluding that there was such a right and that the meaning of marriage had expanded to include spouses of the same sex. But It could have asked, at lower level of generality, “is there a fundamental constitutional right to marry a person of the same sex?” That would have tended to throw it back into how marriage was understood at the founding and the adoption of relevant constitutional amendments, with a likely opposite holding.
That “the prime directive of the Constitution is liberty” feels like the ne plus ultra of high generality – so high a level as to be useless or to moot the whole text of the Constitution in favor of WWLD – what would Liberty do?