Federal Liberties and Diversity Among the States

Nagy, Csongor István (2025) Federal Liberties and Diversity Among the States. SUFFOLK UNIVERSITY LAW REVIEW, 58 (3). pp. 257-306. ISSN 0039-4696

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Abstract

This Paper argues that the application of fundamental liberties to the federal government and the states, let them be enumerated or not, is based on different rationales and these divergent rationales should affect their application. The Paper’s argument is presented in six steps. Part II lays down the conceptual and terminological groundwork. Part III discusses how the Constitution’s creation story does or does not affect the question of inquiry. Part IV presents how federal liberties were made applicable to the states through the doctrines of incorporation and substantive due process. Part V explores the relationship between federal liberties and the structural matrix of federalism, and demonstrates that— aside from procedural due process and equal protection—diversity should be factored into the application of federal rights to the states. Part VI presents how this should be done. Part VII demonstrates that the proposed approach does not lead to lesser constitutional protection.

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