There seems to be a distinction in the way liberty sentences are forumulated: some are gradient; some are simple. Simple liberty sentences are those that are not qualified by vague adjectives or clauses. For example, the right to speech is not limited by words such as important, reasonable, due, equal, fair, etc. Other examples of rights in the Constitution that translate into a simple articulation include:
• Provide defendants with counsel.
• Provide defendants with witness confrontation.
• Provide defendants with trials where the crime occurred.
• Do not impose “double-jeopardy” for the same offense.
• Provide defendants with subpoena power.
Now, compare these sentences to the command: “No unreasonable searches.” Here, the noun “searches” is preceded by a qualifier (“unreasonable”) that forces its reader to value-judge the activity in question before one can say whether rule-conformity occurs. The same is true for, “No excessive fines.” Because some of the activities described by the noun, fines, are acceptable under the sentence’s own terms while others are not – and because this determination requires “judgment” – the right is said to be “gradient.” Other examples of gradient rights in the Constitution include:
• Provide just compensation for takings.
• Provide due (meaning fair) process when taking life/liberty/property.
• Provide speedy criminal trials.
• Do not impose cruel punishment.
• Use indictments for infamous crimes.
I refer to these rights as gradient because their articulation is ultimately conceptualized as being a matter of degree. That is, words like “substantial,” “significant,” “excessive,” “cruel,” “unfair” or “undue” are simply more sophisticated ways of saying “too much.” They are words, therefore, that purport to draw gradients not too unlike the measuring lines one might find on rulers, test tubes or cooking cups. The difference is that instead of measuring liquids or solids, you are asked to “measure” an activity across some moral criteria. Hence, the word “gradient” is used.
What is important about gradient versus simple rights is not what you might expect. It is not that simple rights grant more liberty or are more stern than gradient rights. The command, “provide defendants with counsel,” for example, is not more generous than the command, “provide defendants with good counsel.” What is relevant is that one is easier to affix meaning. The former command is more rigid because it designates more clearly what is required for rule conformity, whereas the latter requires more effort to see if the rule is violated.
(However, one can imagine a situation where gradiency is sufficiently clear. Compare the command “No excessive bail,” with the command, “Do not bail at a rate greater than five times the maximum fine allowed for each crime charged.” Both examples involves a right whose articulation is conceptualized as being a matter of degree. But the difference is that the latter has an agreed upon metric (dollars) as well as a demonstrable point at which a rule violation occurs. If you do not have a universal metric and precise indication of when a line is crossed, then “gradiency” becomes a problem for those wanting clarity. When I use the term “gradiency” in this entry, therefore, I am refering to spectrums that are metaphorical. Perhaps I should have said “abstract gradiency.”)