Page:Kerry v. Din.pdf/7

RhOpinion of the subjects have of the gift of the king"; "exiled"; or "fore­ judged of life, or limbe, disherited, or put to torture, or death." 1 Coke, supra, at 46–48. Blackstone’s description of the rights protected by Magna Carta is similar, al­ though he discusses them in terms much closer to the "life, liberty, or property" terminology used in the Fifth Amendment. He described first an interest in "personal security," "consist[ing] in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation." 1 W. Blackstone, Commentaries on the Laws of England 125 (1769). Second, the "personal liberty of individuals" "consist[ed] in the power of loco­motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; with­ out imprisonment or restraint." Id., at 130. And finally, a person’s right to property included "the free use, enjoy­ment, and disposal of all his acquisitions." Id., at 134.

Din, of course, could not conceivably claim that the denial of Berashk’s visa application deprived her—or for that matter even Berashk—of life or property; and under the above described historical understanding, a claim that it deprived her of liberty is equally absurd. The Govern­ment has not “taken or imprisoned” Din, nor has it "con­fine[d]" her, either by "keeping [her] against h[er] will in a private house, putting h[er] in the stocks, arresting or forcibly detaining h[er] in the street." Id., at 132. Indeed, not even Berashk has suffered a deprivation of liberty so understood.

Despite this historical evidence, this Court has seen fit on several occasions to expand the meaning of "liberty" under the Due Process Clause to include certain implied "fundamental rights." (The reasoning presumably goes like this: If you have a right to do something, you are free to do it, and deprivation of freedom is a deprivation of