As always, you can find the Dobbs v. Jackson decision here.

So far I’ve looked at all of the sentences in Part II section A 1 & 2 and quickly assessed whether the claims in those sentences can be determined true. I came up with many true claims and even more undetermined claims (with one of those likely false). One of the factors preventing me from making determinations about some of the sentences is a lack of clarity in terminology. The language used might be understood in a particular way throughout the American legal community, but I’m not part of that. I’m just a guy reading words in English and determining if they make sense in that context, so I need to do more work to understand the terms the Court uses. That’s where this section comes in.

The phrase “ordered liberty” appears four times in what I’ve looked at so far—all in Part II A 2—and for the most part I didn’t have any trouble with it. I can understand it (I think) through context. Not much is being asked of the phrase—until the fourth instance. That sentence highlighted some ambiguity that I hadn’t picked up on previously, and now I feel the need to clarify the idea before I move on.

I’ll start with each use of the phrase and whether there is any attempt to define the concept in that use. Then I’ll trace through whatever citations and references are attached to that use. If all that fails to define “ordered liberty” I’ll look elsewhere for definitions.

The first time the phrase “ordered liberty” appears in Part II A 2 is on page 12 of the decision:

“In deciding whether a right falls into either of these categories, the Court has long asked whether the right is ‘deeply rooted in [our] history and tradition’ and whether it is essential to our Nation’s ‘scheme of ordered liberty.’ Timbs v. Indiana, 586 U. S. ___, ___ (2019) (slip op., at 3) (internal quotation marks omitted); McDonald, 561 U. S., at 764, 767 (internal quotation marks omitted); Glucksberg, 521 U. S., at 721 (internal quotation marks omitted).19

This paragraph isn’t an explanation of what “ordered liberty” means to this Court or how it is justified as a relevant question. Rather, it describes how “ordered liberty” fits into the process of determining the validity of rights. Three sentences in the preceding paragraph help set up this paragraph:

1. “But our decisions have held that the Due Process Clause protects two categories of substantive rights.”
2. “The first consists of rights guaranteed by the first eight Amendments.”
3. “The second category—which is the one in question here—comprises a select list of fundamental rights that are not mentioned anywhere in the Constitution.”

This paragraph goes on to claim that for a long time, the Court has used the “history and tradition” question and the “ordered liberty” question to determine whether a right fits in the second category indicated in the previous paragraph. Are these the only questions asked, or are they two of many? If many, are these the most important questions, or is there no ranking? Do both questions have to be satisfied? Do either of them have to be satisfied? So many questions. Maybe Timbs will help us sort this out. Here is the cited passage on Timbs page 3:

“When ratified in 1791, the Bill of Rights applied only to the Federal Government. Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243 (1833). ‘The constitutional Amendments adopted in the aftermath of the Civil War,’ however, ‘fundamentally altered our country’s federal system.’ McDonald, 561 U. S., at 754. With only ‘a handful’ of exceptions, this Court has held that the Fourteenth Amendment’s Due Process Clause incorporates the protections contained in the Bill of Rights, rendering them applicable to the States. Id., at 764–765, and nn. 12–13. A Bill of Rights protection is incorporated, we have explained, if it is ‘fundamental to our scheme of ordered liberty,’ or ‘deeply rooted in this Nation’s history and tradition.’ Id., at 767 (internal quotation marks omitted; emphasis deleted).

Most significantly, this explains what the function of “ordered liberty” is in determining the application of the 14th Amendment, but doesn’t explain what “ordered liberty” is and it doesn’t try to justify that use. It’s really just a reiteration that “ordered liberty” is a factor, but there is some helpful information. We have a disjunct here. A right expressed in the Bill of Rights is “incorporated [. . .] if it is ‘fundamental to our scheme of ordered liberty,’ or ‘deeply rooted in this Nation’s history and tradition.’

That “or” suggests that the two don’t have to both be answered in the affirmative to validate a Bill of Rights protection– just one. Of course, we haven’t yet seen a reason why we should accept this paradigm at all, so there’s a lot more to figure out.

These statements are useful:

1. “But our decisions have held that the Due Process Clause protects two categories of substantive rights.”
2. “The first consists of rights guaranteed by the first eight Amendments.”
3. “The second category—which is the one in question here—comprises a select list of fundamental rights that are not mentioned anywhere in the Constitution.”
4. A right expressed in the Bill of Rights is “incorporated [. . .] if it is ‘fundamental to our scheme of ordered liberty,’ or ‘deeply rooted in this Nation’s history and tradition.’