Preserving Life by Ranking Rights

82 Pages Posted: 13 Dec 2018 Last revised: 9 Jan 2019

Date Written: December 1, 2018


Border walls, abortion, and the death penalty are the current battlegrounds of the right to life. We will visit each topic and more in this paper, as we consider ranking groups of constitutional rights.

The enumerated rights of the Due Process Clauses of the Fifth and Fourteenth Amendments—life, liberty, and property—merit special treatment. They have a deeper and richer history that involves ranking. Ranking life in lexical priority over liberty and property rights protects life first and maximizes safe liberty and property rights in the absence of a significant risk to life. This is not new law; aspects of it have long appeared in common law and statute. Federal implementation of ranking due process rights, an ordered substantive due process, would protect our most basic and fundamental right and make our entire legal system more humane. By using a conceptual partition between life and other rights, we can create channels of cooperation to solve problems of incommensurability and to provide a more just legal system.

Keywords: Constitutional law, due process clauses, legal philosophy, public health law, right to life, law & economics, statistical life, substantive due process, significant risk, law & politics, administrative law, feasible risk reduction, safe level of risk imposition, hierarchical interests & rights

JEL Classification: A13, D63, D81, K10, K32, P17

Suggested Citation

Draper, John William, Preserving Life by Ranking Rights (December 1, 2018). Albany Law Review, Vol. 82, Pg. 157, 2018/2019, U of Penn Law School, Public Law Research Paper No. 18-39, Available at SSRN:

John William Draper (Contact Author)

University of Pennsylvania ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

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