A right to be free from unreasonable searches and seizures should mean the same thing in Chicago as it does in Cheboygan. The Second Amendment should receive the same treatment.
So … how does Blackman feel about local standards for obscenity?
Continuing the sci-fi theme from a few posts down, Blackman sees (at least in his first, and presumably most important, point) a form of Zeroth Law analysis. There are some laws which are viewed as bedrock principles (Asimov’s Three Laws of Robotics), but there is a more fundamental, survival-based Law which over-rides those laws (the unwritten Zeroth Law). As illustrated by the recent I, Robot movie (which was nothing like the book, but looked at separately was not really that bad), this analysis is usually invoked to protect the many by denying liberty of the few, and is usually defeated in the name of individual liberty and freedom. Powerful message, especially when inverted, as in the Star Trek movies: “No, Spock, the needs of the one outweighed the needs of the many.”
And it is, in fact, the right way to write a Supreme Court brief. As I try to teach young brief-writers, the Supreme Court does not care about your client, nor really about the specific case you bring. Instead the Supremes care, as Rex Lee once told me, about “protecting the harbor.” They look for the consequences, not of your clients’ actions, but of their own. Is there something in this decision which will cascade through the myriad channels of the law, wrenching cracks in bedrock principles? Is there a Zeroth Law at work here, and which one? That is what you try to write. To mix my sci-fi metaphors (and movies): “I know. If I see them, I’ll do this [cupping his hand to his mouth]: ‘Caw, caw.’” “What are you, an infant? We have these!” [holding up a communicator].
This brief does not really do that. It is a defensive brief, which looks essentially at just this one situation. Compare the extensive discussion of what the law “is” (or more precisely “was”) on pages 23-30, with the one-paragraph analysis of what it means on pp 30-31. If there is a Zeroth Law analysis in this brief, it is that both the legislative and executive branches through history have made a particular interpretation. Nice, but hardly powerful to a Court which includes RBG and now SS (e.g., in CitzUnited, let’s raise the idea that corporations don’t have rights).
Thus, if Blackman were right, this would be a more powerful brief. But it’s a series of sound bites, not a call to action.
They’re still arguing collectivism, i.e. against the legitimacy of _Heller_ itself. It is well past time they be confronted with the body of Militia Clause caselaw that makes state militia law subject to federal preemption. Rather than defend the RKBA, attack the collectivist on its own ground: miltia law. “The best way to keep the enemy out of your country, is to go into his.”
If the Second Amendment is read in structural terms, vice “rights” terms (not that I disagree with the rights arguments, but it is first and foremost a structural document) — we should have we have structural limitation as we do with the dormant commerce clause preclusion. Consider the structural argument against States’ banning or limiting possession or adequate use of proper militia arms (Heller instructs us in that, I think). I have not seen this argument made, though I may have missed it.
If the Federal government has a structural need to have an effective militia to call out, then, as with dormant commerce clause issues, the interest of the Federal government in uniformity displaces state’s regulatory authority. In areas that by necessity would impede a coherent and general Federal power, for which uniformity is a key element — the States may not make law. Since the United States could not rely on a militia who was, as a matter of state public policy, disarmed by law, then there is structural “dormant militia clause” (Art. 1, Section 8, Cl. 16) that should preclude State disarmament of the people because this would cause plainly adverse impact to the uniformity, availability and effectiveness of the militia. The States are NOT given the power “of organizing, arming and disciplining, the Militia”, — Congress is; the States have only the power of appointment of officers and training them –(and woefully deficient in that regard also, IMO).
This is no longer an academic question in light of the earlier post observing that militia action occurred on Flight 93, and a recent repetition, to happier result in the Christmas Day airline bombing attempt.
At the very least, this supports the concept that a “well-regulated” militia (i.e. — well trained and well-ordered in its historical meaning) has a continuing role in the structural concerns of the nation’s security domestically. The structure of a “well-regulated militia” being available for BOTH the “security of a free State” and for the President to call out “into the actual Service of the United States” would be severly limited were a state to ban possession of arms wihtin its borders — or in any significant geographic portion thereof.
If Katrina taught us nothing else it should teach us that the possiblity of large scale and civil disorder in urban complexes is a very real possibility in both the acts of war we should be anticipating and in the wake of disasters, “man-caused” or otherwise. If say, Detroit, were in insurrection, the President would be severely limited in his ability to call out the loyal militia to assist in putting it down — if the militia were not already armed where they were.
Two points – first the argument of whether the 2nd protects the right of the militia vs right of the people. Going back to my days of diagramming sentences in the 9th grade, the most reasonable interpretation is that there are two rights the 2nd protects 1) the right of the militia not to be infringed and 2) the right of the “people” to keep and bear arms.
The second point is a conceptional issue on incorporation – Aren’t all the amendments meaningless without incorporation. By the original ratification of the constitution by each state, did each state adopting and ratifying the constitution not agree to be bound by the entire constitution including the bill of rights – and therefore essentially incorporating the bill of rights. Could Virginia ratify the constitution and then immediately confiscate all private property and then not be in violation of the 5th ad?
Do we have a whole body of case law on incorporation which is based on a faulty premise that the states were free to ignore the bill of rights.
I would have more respect for the respondents brief if they had simply said…
Slaughterhouse should be reversed.
There are grounds for incorporation via both routes.
We still do not want it incorporated… justices… please make an exception in this case.
It disturbs me that the respondents are willing to throw a whole host of rights under the bus just because they don’t happen to like the 2nd Amendment.
I agree that without incorporation, the amendments still restrain the federal government – but continuing with my example if you are a resident of Virginia (my apologies to the people of Virginia in this example) and assuming that Virginia doesn’t have the equivilant of the 5th ad in their state constitution or in their statutes, would Virginia be free to confiscate any or all real property without just compensation. The 5th amendment would be meaningless.
Slaughterhouse should be reversed. There are grounds for incorporation via both routes. We still do not want it incorporated… justices… please make an exception in this case.
That might have flown. Claiming that Heller was deficient wasn’t a good way to start, however.
It disturbs me that the respondents are willing to throw a whole host of rights under the bus just because they don’t happen to like the 2nd Amendment.
There are echoes of the rather disturbing NAACP brief [pdf] at work here. The NAACP brief went so far as to say,
It would be ironic, to say the least, if this Court decides to reexamine the Privileges or Immunities Clause in this case—which involves firearms regulations in a city where, each year, many times more African Americans are murdered by assailants wielding guns than were killed during the Colfax massacre by white insurgents who escaped federal prosecution in Cruikshank. pp. 5-6
Counsel for Chicago/Oak Park are claiming that Slaughterhouse should stand because it allows them to keep a social policy that has failed to make citizens safer.
Lastly, there’s this weirdness:
But even if the Court were to recognize not merely the existence of a constitutional right to self-defense but also an ancillary right to tools necessary for its effectuation, and even if that ancillary right included a right to some kind of firearm, it would not provide support for incorporating the Second Amendment. So long as the States permitted the use of reasonable tools (including perhaps some kind of firearm) for self-defense, any constitutional right to self-defense would surely be adequately protected. pp. 47-48
Are they arguing for a 9th Amendment “emanation” protecting self-defense?
Joe – Dallas: Ruuffles :I agree that without incorporation, the amendments still restrain the federal government — but continuing with my example if you are a resident of Virginia (my apologies to the people of Virginia in this example) and assuming that Virginia doesn’t have the equivilant of the 5th ad in their state constitution or in their statutes, would Virginia be free to confiscate any or all real property without just compensation. The 5th amendment would be meaningless.
I don’t think it’s widely disputed that, prior to the passage of the 14th Amendment, that was indeed the case. With a few exceptions (like guaranteeing to states a “republican form of government”), the federal constitution was only intended to limit the federal government’s power, not to protect citizens from curtailment of their rights by their own state governments— that was the job of state constitutions.
ruuffles: A right to be free from unreasonable searches and seizures should mean the same thing in Chicago as it does in Cheboygan. The Second Amendment should receive the same treatment.
So … how does Blackman feel about local standards for obscenity?
The First Amendment obscenity standards always troubled me. How can the Constitution mean different things in different states? And why is the first (and perhaps the Second) Amendment subject to that treatment, but the other amendments aren’t. Surely the needs of the police to investigate crimes is different in Manhattan than Montana.
G.R. Mead: There *is* a “dormant militia clause”. I wrote about it here, and blogged using that very term here.
Contra the collectivist theory of the 2nd Amendment, the states have no legal remedy if Congress dismantles the militia by ill regulation, or by limiting membership, or by conscripting all militiamen into the regular service and breaking up the local units. Caselaw is pretty clear on all the above.
The states cannot enroll (and thus arm as militia) citizens, in contravention of Congress. Presumably, as you point out neither could the states *disarm* the militia members in contravention of Congress.
The catch is that in the latter case, the state gun law would presumably be preempted only if it trod upon a federal militia prerogative of arming the militia (presumption going with the state police power, I think). I don’t think a dormant federal power would in this case be sufficient to preempt the state law, and if sufficient I suspect only the federal government would have standing to litigate.
SCOTUS in Houston v. Moore 18 U.S. 1 (1820):
“Upon the subject of the militia, Congress has exercised the powers conferred on that body by the constitution, as fully as was thought right, and has thus excluded the power of legislation by the States on these subjects, except so far as it has been permitted by Congress; although it should be conceded, that important provisions have been omitted, or that others which have been made might have been more extended, or more wisely devised.”
A. Dawson: I would have more respect for the respondents brief if they had simply said…Slaughterhouse should be reversed.
There are grounds for incorporation via both routes.
We still do not want it incorporated… justices… please make an exception in this case.It disturbs me that the respondents are willing to throw a whole host of rights under the bus just because they don’t happen to like the 2nd Amendment.They are going to lose, they just don’t know how.Let’s hope the justices don’t botch this opinion.Die Slaughterhouse… die.
As I have already pointed out numerous times, there are no rights that could be protected by P or I that can’t be protected just as well by SDP, reviving P or I would weaken the basis for SDP’s existence, which is why many people are skeptical of overturning Slaughterhouse.
Guy: there are no rights that could be protected by P or I that can’t be protected just as well by SDP….
There are also no rights that could be protected by P or I that can’t be protected just as well by the Third Amendment (if we are willing to completely misconstrue the Third Amendment).
James Madison proposed the rights to arms and due process in a single unitary bill, but the Congress split it up into separate amendments. Congress did this so that the states could vote up or down on each one separately; e.g. Congress thought it would be acceptable for the states to ratify the right to due process, but reject the right to keep and bear arms. And the framers of the Fourteenth Amendment’s Due Process Clause meant to copy the meaning in the Fifth.
Andrew:
There are also no rights that could be protected by P or I that can’t be protected just as well by the Third Amendment (if we are willing to completely misconstrue the Third Amendment).James Madison proposed the rights to arms and due process in a single unitary bill, but the Congress split it up into separate amendments. Congress did this so that the states could vote up or down on each one separately; e.g. Congress thought it would be acceptable for the states to ratify the right to due process, but reject the right to keep and bear arms.And the framers of the Fourteenth Amendment’s Due Process Clause meant to copy the meaning in the Fifth.
But what of stare decisis? It seems to me there must be a compelling reason to revive PoI. The fact that the existing caselaw does not need to be upset to incorporate the Second Amendment, and that reviving PoI would have relatively minor changes to the substantive protections of the Fourteenth Amendment, and that those changes are irrelevant to the outcome of this case, there is no good case for overturning Slaughterhouse here.
If you want to overturn Slaughterhouse, wait for a case where the distinction between PoI and SDP makes a legal difference.
Also SDP does not completely misconstrue the Due Process Clause, I’ll admit the argument does not comport extremely well with originalism, but it’s not as if there is no textual foundation whatsoever: a law infringing the freedom of speech undoubtedly deprives a person (indeed, all people subject to the law) of liberty without first subjecting them to the due process of law.
Also this argument doesn’t help to assuage my concerns that the real goal here is to destroy substantive due process, and Second Amendment incorporation is only of secondary importance.
Andrew: Congress thought it would be acceptable for the states to ratify the right to due process, but reject the right to keep and bear arms.
Plus, the Federalists thought the entire Bill of Rights was complete surplusage, so the argument that the Due Process Clause can’t possibly be construed to render the substantive protections in the Bill of Rights surplusage is not as compelling as you think.
Guy — unlikely that the Second Amendment is a secondary goal in this case, and undermining due process the primary goal. McDonald is a successor to _Heller_, and is being handled by the same people. They could hardly have invested so much in an improbable Second Amendment case in speculation that they would reach SCOTUS, prevail, then use the first case as a basis to undermine due process in a subsequent case. It would be like starting a rock band in expectation of using success as a launch pad for your real goal of becoming an astronaut.
JNHeath: Guy — unlikely that the Second Amendment is a secondary goal in this case, and undermining due process the primary goal. McDonald is a successor to _Heller_, and is being handled by the same people. They could hardly have invested so much in an improbable Second Amendment case in speculation that they would reach SCOTUS, prevail, then use the first case as a basis to undermine due process in a subsequent case. It would be like starting a rock band in expectation of using success as a launch pad for your real goal of becoming an astronaut.
Well, ok, “secondary” overstates my case. But I don’t think I’m being paranoid when I suspect that this tactic is borne out of spite for SDP, and that undermining the currently understood extent of the Due Process Clause is a goal here.
Guy: the argument that the Due Process Clause can’t possibly be construed to render the substantive protections in the Bill of Rights surplusage is not as compelling as you think.
I didn’t mention any argument about surplusage. If the Due Process Clause encompasses the specific substantive protections in the Bill of Rights, then those specific substantive protections could be characterized as surplusage regardless of whether they are in separate amendments or not. In contrast, the separateness of the amendments clearly and unequivocally proves that Congress believed that adoption of the Due Process Clause would be compatible with rejection of the right to keep and bear arms; that fact has nothing to do with any surplusage argument.
Also, Guy, I’m not trying to assuage your concerns that a goal here is to destroy the doctrine of substantive due process. That doctrine is a huge, insidious error that should be destroyed. Revival of the moribund Privileges or Immunities Clause is another worthy goal here, seeing as how it has been treated like a dead letter for so long. And such a revival does not require overturning Slaughter-House (see the amicus brief of the American Civil Rights Union).
All of these are appropriate arguments to make in the context of the present case.
JNHeath: G.R. Mead: There *is* a “dormant militia clause”. I wrote about it here, and blogged using that very term here.The states cannot enroll (and thus arm as militia) citizens, in contravention of Congress. Presumably, as you point out neither could the states *disarm* the militia members in contravention of Congress. The catch is that in the latter case, the state gun law would presumably be preempted only if it trod upon a federal militia prerogative of arming the militia (presumption going with the state police power, I think). I don’t think a dormant federal power would in this case be sufficient to preempt the state law, and if sufficient I suspect only the federal government would have standing to litigate.
SCOTUS in Houston v. Moore 18 U.S. 1 (1820):
“Upon the subject of the militia, Congress has exercised the powers conferred on that body by the constitution, as fully as was thought right, and has thus excluded the power of legislation by the States on these subjects, except so far as it has been permitted by Congress; although it should be conceded, that important provisions have been omitted, or that others which have been made might have been more extended, or more wisely devised.”
I am glad for the point. I feel strongly that rights and duties must correlate in a sound social structure. I think the Founders agreed with that general premise — and we have strayed from it.
On the point of standing — it seems to me that a member of the militia is invested with a legal duty and public office — at a minimum in the “dormant” condition of maintaining an effective readiness to serve — subject to the power of Congress to order the discipline of that duty in various particulars (a power mostly unexercised, FWIW). But one particular of militia service is to be armed with the ordinary weapons of the day ( pace Heller) and prepared to use arms to good effect when that duty is properly invoked.
If someone by color of office or law impedes or usurps the duty of the office of the militia (readiness and arming himself in the “dormant state”) — the writ quo warranto ought to be available to determine the authority for the attempted imposition or limitations upon the public office of the militia. It seems a fairly straightforward standing issue — once we translate the private rights arguments into the correlative tersm of public duties …
Andrew:
I didn’t mention any argument about surplusage.If the Due Process Clause encompasses the specific substantive protections in the Bill of Rights, then those specific substantive protections could be characterized as surplusage regardless of whether they are in separate amendments or not.In contrast, the separateness of the amendments clearly and unequivocally proves that Congress believed that adoption of the Due Process Clause would be compatible with rejection of the right to keep and bear arms; that fact has nothing to do with any surplusage argument.Also, Guy, I’m not trying to assuage your concerns that a goal here is to destroy the doctrine of substantive due process.That doctrine is a huge, insidious error that should be destroyed.Revival of the moribund Privileges or Immunities Clause is another worthy goal here, seeing as how it has been treated like a dead letter for so long.And such a revival does not require overturning Slaughter-House (see the amicus brief of the American Civil Rights Union).All of these are appropriate arguments to make in the context of the present case.
It proves that Congress did not think that the Due Process Clause did not clearly and unequivocally imply the Second Amendment, it shows that at least many of them did not understand the Due Process Clause in such broad terms, it does not show that they would have rejected the broad understanding of due process that exists today. I’ll admit that there was “misconstruction” in the sense of “re”-construing the meaning of the Due Process Clause when “liberty” was reconstrued to include substantive rights, and not just freedom from detention, but that’s it.
You say that substantive due process is a “huge, insidious error”, please tell me one practical effect that it has had, that privileges and immunities could not have, that you think were bad. If you can give me such an example, wait until that example surfaces before you try to bring this case, that’s basic rules of stare decisis and Constitutional avoidance. If you can’t think of such an example, then what’s the problem? Do you dislike substantive due process solely because you think it is aesthetically distasteful in an intellectual way?
I suspect that you envision the PoI Clause as being somehow different from SDP, but that’s ridiculous. PoI differs from SDP in only three respects:
(1) PoI protects rights that can’t be characterized as relating to life, liberty, or property. (If any such rights exist)
(2) PoI doesn’t protect noncitizens (the freedom to strip rights from noncitizens hardly seems like a goal important enough to overturn precedent that is more than a century old.)
(3) It’s possible that some of the rights protected by PoI can be revoked or regulated by the Federal Government, either at will, or under certain conditions (such as the writ of habeus corpus being suspended in times of invasion or insurrection), but the Fifth Amendment only allows such abrogations by the federal government when they are inherent in the form of the right (as with the writ)
That’s it, that’s all, there can be no further distinctions between the two ideas. Now explain to me why you think bringing back PoI is vital, because you need one or more of these distinctions to exist.
Andrew: If the Due Process Clause encompasses the specific substantive protections in the Bill of Rights, then those specific substantive protections could be characterized as surplusage regardless of whether they are in separate amendments or not. In contrast, the separateness of the amendments clearly and unequivocally proves that Congress believed that adoption of the Due Process Clause would be compatible with rejection of the right to keep and bear arms; that fact has nothing to do with any surplusage argument.
And the fact that Congress proposed the Bill of Rights in the first place clearly and unequivocally proves that Congress believed that adoption of the Constitution would be compatible with rejection of the Bill of Rights.
Except it didn’t, or at least not all of its members did, because the Federalists certainly thought that the Bill of Rights had no meaningful legal effect in light of the body of the Constitution, this is why the Ninth and Tenth Amendments were added at the end, to basically say “of course, none of the previous eight amendments do anything anyway, so who really cares?”
Guy: You say that substantive due process is a “huge, insidious error”, please tell me one practical effect that it has had, that privileges and immunities could not have, that you think were bad. If you can give me such an example, wait until that example surfaces before you try to bring this case, that’s basic rules of stare decisis and Constitutional avoidance. If you can’t think of such an example, then what’s the problem? Do you dislike substantive due process solely because you think it is aesthetically distasteful in an intellectual way?
I’ll answer those questions very briefly.
First, an example of misuse of SDP is the decision limiting visitation by grandparents in Troxel v. Granville; that decision may have been wise as a policy matter (or not), but it involved no right that was already enforceable nationwide against the federal government, and thus did not involve one of the “privileges or immunities of citizens of the United States.”
Second, I dislike substantive due process not because it is aesthetically distasteful in an intellectual way, but rather because it has nothing to do with the original meaning of the clause, thus tending to destroy constitutional governance; I also dislike SDP because it confers unlimited legislative power upon unaccountable judges, thus tending to destroy democracy.
Guy: the Ninth and Tenth Amendments were added at the end, to basically say “of course, none of the previous eight amendments do anything anyway, so who really cares?”
That’s an unusual interpretation, and I don’t agree with it. The Ninth Amendment was written to protect what Madison called the “great residuum” of rights that flow from having a government of limited and enumerated powers, such as the right protected by SCOTUS in United States v. Lopez; the Ninth Amendment does not render all natural rights enforceable against the federal government. See United Public Workes v. Mitchell (“If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail”).
Think about it: the Ninth Amendment says that the enumeration of rights shall not be construed in a particular way, but it does not say that the enumeration of powers shall be construed that way too.
Andrew:
I’ll answer those questions very briefly. First, an example of misuse of SDP is the decision limiting visitation by grandparents in Troxel v. Granville; that decision may have been wise as a policy matter (or not), but it involved no right that was already enforceable nationwide against the federal government, and thus did not involve one of the “privileges or immunities of citizens of the United States.”Second, I dislike substantive due process not because it is aesthetically distasteful in an intellectual way, but rather because it has nothing to do with the original meaning of the clause, thus tending to destroy constitutional governance; I also dislike SDP because it confers unlimited legislative power upon unaccountable judges, thus tending to destroy democracy.
It was not enforceable nationwide against the government because it never occured to anyone that the government might have power to infringe on it. If you don’t think the Justices would have incorporated that “privilege” into PoI from the Ninth Amendment, you are sorely mistaken, hence the lack of difference between PoI and SDP.
SDP does little more than what PoI can do (the person-citizen distinction is the most significant), so I see no serious dilution of Constitutional governance.
The Justices learned their lesson about abuse of SDP in the Lochner era. Anyway, PoI can be abused as readily, so no significant difference exists.
Any clause in the Constitution can be readily abused, which merely proves that our system of government is imperfect. A correct interpretation of the PorI Clause only applies enumerated rights against the states, not unenumerated rights.
Ignoring the comments from the extremely young (and I can’t take seriously anyone as young as the children I nursed and diapered), the reality is that Chicago put out a good brief. Most of us here surely disagree with it. We may hope to heavens that it does not carry the day. But the brief is good enough that — if the Court wants to uphold the 7th Circuit opinion — Chicago gave them the ammo to do so.
Folks, it canNOT be assumed that the “good guys” have the ball over the line yet. The ball is still very much in play.
Andrew: Any clause in the Constitution can be readily abused, which merely proves that our system of government is imperfect.A correct interpretation of the PorI Clause only applies enumerated rights against the states, not unenumerated rights.
Yes, but why does it matter which clause is used? Textually, both clauses lend themselves to either interpretation (with the proviso that “liberty” in the Due Process Clause is broadly understood), it seems like you’re trying to switch clauses because it just gives you a chance to reboot the system, hope you get lucky, and try to get a result closer to the one you like.
Andrew:
That’s an unusual interpretation, and I don’t agree with it.The Ninth Amendment was written to protect what Madison called the “great residuum” of rights that flow from having a government of limited and enumerated powers, such as the right protected by SCOTUS in United States v. Lopez; the Ninth Amendment does not render all natural rights enforceable against the federal government.See United Public Workes v. Mitchell (“If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail”).Think about it: the Ninth Amendment says that the enumeration of rights shall not be construed in a particular way, but it does not say that the enumeration of powers shall be construed that way too.
That’s the same thing I said, the Federalists opposed adoption of a Bill of Rights because they didn’t believe the enumerated powers of Congress made it possible for Congress to violate, say, the freedom of speech. Others were more skeptical of that interpretation, but disagreement about whether some rights should be singled out as “special” certainly did exist. This is a strong argument in favor of finding that if the Bill of Rights is to be incorporated against the states, there may very well be other freedoms incorporated against the states as well.
Of course, every law impinges on freedoms to some extent, this is the reason for the creation of the rational basis test and strict scrutiny to allow the proper balancing of competing interests to occur.
Guy, you’ve agreed that Congress in 1789 thought that the Due Process Clause did not clearly and unequivocally imply the Second Amendment. This is clear from the text of the Constitution. So, shouldn’t we ask why Congress had this view, given that the right to keep and bear arms was already deeply entrenched in 1789?
The reason is clear. The phrase “due process of law” had a meaning that was already fixed by English common law. The King’s Bench stated in 1704 that, “the words due process of law [mean] … that all commitments must be by a legal authority.” William Holdsworth’s great treatise on English law confirms that due process of law was “in substance a demand that no violence be offered to person or property without legal warrant.”
Once you depart from this original meaning, there are no limits. A modern textual reading of the Due Process Clause suggests that it only involves procedure. But, historically in England, this clause did impose substantive limitations, although only to the extent that it forbade extra-legal deprivations of life, liberty, and property.
If you discard the modern textual reading, and also discard the original meaning borrowed from English law, then you are left with a Supreme Court that has unlimited power to deprive anyone it pleases of life or liberty, in order to grant life and liberty to whomever else the justices feel empathy toward.
In this case, victims of accidental shootings, and unarmed victims of homicide, will lose their lives in greater numbers if the City of Chicago loses this case. On the other hand, if the City of Chicago wins this case, then the lives and liberty of disarmed crime victims will be lost in greater numbers. In other words, there are life and liberty interests on both sides. That is often true of controversies in this country, and I do not accept that five Supreme Court justices have carte blanche to dictatorially impose their preferred solutions on the rest of us, with respect to an unlimited range of issues ranging from grandparental visitation to abortion to assisted suicide, to whatever else the five justices feel strongly about. This was obviously not the intended meaning of thre Due Process Clause.
By the way, even if you dispute that the right to keep and bear arms was already deeply entrenched in 1789, surely it’s beyond dispute that other substantive rights in the Bill of Rights were already deeply entrenched by 1789 (e.g. the right to be free from cruel and unusual punishment). Congress did not believe that ANY of those other rights followed from the Due Process Clause, which is why Congress allowed the states to ratify the due process right while rejecting the others.
What do you make of the argument that the word “liberty” is best understood to encompass all the substantive rights that the Framer’s considered vital, and in determining what those rights are, the provisions in the Bill of Rights are important indicators, signposts, if you will.
The word “liberty” can be given as expansive a meaning as possible, but nevertheless the DP clause lets that liberty be taken away with “due process of law.” This same principle can be expressed slightly differently: liberty may be taken away by the “law of the land,” and otherwise may not be taken away. Unfortunately, the Court has wanted the DP clause to say more than that, so they’ve cooked up all these supplemental meanings and rationales.
The “law of the land” includes statutes that are otherwise constitutional. If a statute violates some other provision in the Bill of Rights, then it is no basis for depriving anyone of life, liberty, or property. If a statute does not violate any other provision of the Constitution, then the statute can be a basis for depriving someone of life, liberty, or property. It’s not rocket science.
If the states had in 1790 ratified all of the Bill of Rights except the right to be free of cruel and unusual punishment, I don’t think SCOTUS could subsequently infer that latter right into the Constitution. So how can SCOTUS plausibly infer a right to keep grandparents away from grandchildren into the Constitution? C’est impossible.
Guy: Well, ok, “secondary” overstates my case. But I don’t think I’m being paranoid when I suspect that this tactic is borne out of spite for SDP, and that undermining the currently understood extent of the Due Process Clause is a goal here.
I suspect you’re right. They’re killing two birds with one case, and for those that jumped on the wagon only after _Heller_, the SDP is the fatter bird.
The problem I have with Andrew’s argument (assuming originalism is the proper interpretive theory, which I don’t think it is), is that SDP gets its Constitutional force not so much from the 5th A but more from the 14th. This means, to my understanding of originalism, that the phrase should be interpreted as understood in 1868, not 1791. By 1868, “due process” had acquired a substantive meaning under US law. See Orth, Due Process of Law.
First of all, be careful construing Andrew’s points with the McDonald team. Andrew’s brief is considered hostile to McDonald by his team.
Second, you asked that “there must be a compelling reason to revive PoI.” I’ll give you three. Slaughterhouse was wrong on the original intent, the original public understanding, and the text of the Constitution and the stare decisis at the time. The court knew full well that the Fourteenth amendment applied the individual rights in the constitution to the states. That’s why it went far beyond what was needed to dispose of the economic rights case in front of it to narrowly construe the 14th when it could have remained silent. Judicial activism for the ages.
As you to your purported concern that this is some sneak attack on SDP I have two points. Lawrence would be better textually supported by P or I. Second, the people who would have such aims actually seem to hold common cause with you in not wanting the constitution read on its text and original public meaning. The McDonald team is the one out claiming correctly that the emperor has no clothes and it’s not because the folks involved don’t like civil rights. On the contrary you can see an example of that here: http://www.abajournal.com/magazine/article/first_amendment_footloose/
Alice: Ignoring the comments from the extremely young (and I can’t take seriously anyone as young as the children I nursed and diapered), the reality is that Chicago put out a good brief.Most of us here surely disagree with it.We may hope to heavens that it does not carry the day.But the brief is good enough that — if the Court wants to uphold the 7th Circuit opinion — Chicago gave them the ammo to do so.Folks, it canNOT be assumed that the “good guys” have the ball over the line yet.The ball is still very much in play.
Alice, I expect your comments on Heller at an equivalent time were about the same. Counting to 5, it seems quite hard to imagine 7/4/2010 with a Chicago Handgun Ban still in place. Now, we may have to count 3-2-4 or somesuch, but it’s still pretty obvious how one gets to 5 (or more.)
Andrew: The word “liberty” can be given as expansive a meaning as possible, but nevertheless the DP clause lets that liberty be taken away with “due process of law.” This same principle can be expressed slightly differently: liberty may be taken away by the “law of the land,” and otherwise may not be taken away.Unfortunately, the Court has wanted the DP clause to say more than that, so they’ve cooked up all these supplemental meanings and rationales.The “law of the land” includes statutes that are otherwise constitutional.If a statute violates some other provision in the Bill of Rights, then it is no basis for depriving anyone of life, liberty, or property.If a statute does not violate any other provision of the Constitution, then the statute can be a basis for depriving someone of life, liberty, or property.It’s not rocket science.If the states had in 1790 ratified all of the Bill of Rights except the right to be free of cruel and unusual punishment, I don’t think SCOTUS could subsequently infer that latter right into the Constitution.So how can SCOTUS plausibly infer a right to keep grandparents away from grandchildren into the Constitution?C’est impossible.
I think you have this one entirely backwards. When did grandparents ever have a ‘right’ in the US to access to grandchildren? Such access has always been at the whim of the intervening parents.
You think that a couple in the colonies pre-revolution with minor children would be legally obligated to let the grandparents visit if they sailed over from England? I would find that result entirely perplexing and much at odds with the view that parents have a great deal of latitude over who their children interact with.
Guy: Well, ok, “secondary” overstates my case. But I don’t think I’m being paranoid when I suspect that this tactic is borne out of spite for SDP, and that undermining the currently understood extent of the Due Process Clause is a goal here.
You sound very paranoid. Gura is not arguing to undo any of the current SDP rulings.
Mark Field mentioned that by 1868, “due process” had acquired a substantive meaning under US law. The only pre-1868 federal case I’m aware of on this point was Dred Scott, which the Fourteenth Amendment overturned. I don’t think the framers of the 14th Amendment were trying to emulate anything in the Dred Scott opinion, but rather were trying to emulate the original meaning of the same clause in the Fifth Amendment.
Soronel Haetir asks: “When did grandparents ever have a ‘right’ in the US to access to grandchildren?…You think that a couple in the colonies pre-revolution with minor children would be legally obligated to let the grandparents visit if they sailed over from England?” There’s a difference between a statutory right and a constitutional right; parents may (or may not) have always had a statutory right to keep the grandparents away, but that does not mean that parents have always had a constitutional right to keep the grandparents away, nor does it mean that states no longer have a constitutional right to make this kind of determination by statute.
Mark Field mentioned that by 1868, “due process” had acquired a substantive meaning under US law. The only pre-1868 federal case I’m aware of on this point was Dred Scott
Orth’s book discusses quite a few of them, but my recollection is that they were mostly state cases. Which makes sense.
Andrew: The word “liberty” can be given as expansive a meaning as possible, but nevertheless the DP clause lets that liberty be taken away with “due process of law.”
What you fail to understand is that if, for example, the freedom of speech, and not just freedom from detention, is understood to be liberty, then the freedom of speech belongs to everyone until they have been found guilty of a crime by due process of law. Thus a law that infringes the freedom of speech of noncriminals (even by criminalizing speech) is as presumptively invalid as a law allowing for executive detention in peacetime without trial.
If liberty is understood this way, then saying a law that treads on the substantive right of free speech follows due process is as ridiculous as saying criminalizing not being in jail allows for due process.
Guy: What you fail to understand is that if, for example, the freedom of speech, and not just freedom from detention, is understood to be liberty, then the freedom of speech belongs to everyone until they have been found guilty of a crime by due process of law. Thus a law that infringes the freedom of speech of noncriminals (even by criminalizing speech) is as presumptively invalid as a law allowing for executive detention in peacetime without trial.
One of us fails to understand. Suppose a law impacts a person’s freedom to shoot up with cocaine, or to go streaking at football games. Such law would impact the “liberty” protected by the DP Clause, but that doesn’t mean the DP Clause gives people that liberty until they have been found guilty. Same with a law impacting freedom of speech.
Mark Field: Orth’s book discusses quite a few of them, but my recollection is that they were mostly state cases. Which makes sense
Question for Guy: would you agree that playing baseball (and skipping on the sidewalk, and wearing a hat, and a million other things) are within the term “liberty” in the DP Clause? Otherwise, executive branch officials could stop you from doing any of those things even though they have no law to back them up; the original meaning of the DP Clause was that the King needed a law to back up any action against his subjects. This doesn’t mean that the law has to protect your right to play baseball…only that the cops cannot stop you from playing baseball unless they have legal authority.
Andrew: Question for Guy: would you agree that playing baseball (and skipping on the sidewalk, and wearing a hat, and a million other things) are within the term “liberty” in the DP Clause?Otherwise, executive branch officials could stop you from doing any of those things even though they have no law to back them up; the original meaning of the DP Clause was that the King needed a law to back up any action against his subjects.This doesn’t mean that the law has to protect your right to play baseball…only that the cops cannot stop you from playing baseball unless they have legal authority.
This is the reason for the balancing tests the Court uses, and the need for deference when fundamental rights are not at stake, laws are all about balancing conflicting interests, but liberty should not be deprived without cause.
I return a few questions: Do you think Congress can, absent an emergency, authorize the Executive to detain a person at will? Perhaps they can be given a trial just to ensure that they have been properly designated to be detained (think Guantanamo, with Citizens). It’s not a coincidence that two Justices found that the detention of Hamdi was illegal under the non-detention act. That Act codifies the core of due process that you identify, and the claim of the President to be able to detain Hamdi without trial made a mockery of the very idea of due process. All of the Justices but Thomas agreed the detention was illegal if no trial for specific charges was afforded.
If you agree specific charges are necessary, do you concede that a criminal statute can be void for vagueness? Do you think the right to know the charges against you is not substantive?
Can Congress Criminalize more procedural rights? Like the Sixth Amendment right to an attorney? Make it a crime to higher a lawyer to defend oneself in a criminal trial? The Sixth Amendment had a separate up or down vote from the Fifth, so perhaps the right to counsel ought not be considered incorporated.
Can Congress criminalize not being in prison, consistent with the Due Process Clause? That destroys the right to “liberty” in the sense of freedom from detention. If they can’t, then why is the freedom from detention to be treated any differently than the freedom of speech, for example?
I assume you’re familiar with the Court’s precedents, you must be aware that the freedom to play baseball is protected as a “liberty” under the Due Process Clause according to the case law. That liberty can only be infringed by a law if the law is rationally related to a legitimate government interest.
If you think that the no-cause detention law is Constitutional, I would point out that I’m positive that the Framer’s understood the Due Process Clause to be broader than that.
If you think it is unconstitutional, I would point out that the people are being detained for the “crime” of having been selected for detention, if the people in question have no express substantive right to be free from detention absent some wrongdoing or the posing of a threat (and the Constitution expresses no such substantive right- unless you accept that “liberty” encompasses that right, in which case you have accepted the principle of substantive due process), how can that not be a validly defined crime?
Guy asks: Do you think Congress can, absent an emergency, authorize the Executive to detain a person at will?
Me: Nope, the 4th Amendment generally requires probable cause, absent an emergency, at least if the person being detained is a US citizen. It’s odd that no justice mentioned the 4th Amendment in the Hamdi case. Maybe that’s because counsel didn’t do so. Anyway, this seems like a 4th Amendment issue, rather than a Fifth Amendment issue.
Guy: If you agree specific charges are necessary, do you concede that a criminal statute can be void for vagueness? Do you think the right to know the charges against you is not substantive?
Me: Specific charges aren’t needed to detain someone. For example, a material witness can be detained, even though a material witness is not charged with wrongdoing. But still probable cause should generally exist that the person can provide useful evidence. Regarding criminal statutes, or any other statute, if its meaning is unclear then judges can say that it is without effect. Again, this is not a Fifth Amendment issue, but rather is simply a matter of statutory interpretation. The right to know the charges against you is in the Sixth Amendment, so again this is not a Fifth Amendment issue (I’d classify it as a procedural right rather than a substantive right, though I don’t see why the classification matters).
Guy: Can Congress Criminalize more procedural rights? Like the Sixth Amendment right to an attorney? Make it a crime to hire a lawyer to defend oneself in a criminal trial? The Sixth Amendment had a separate up or down vote from the Fifth, so perhaps the right to counsel ought not be considered incorporated.
Me: Not sure what you mean. Congress cannot criminalize the exercise of any constitutional right.
Guy: Can Congress criminalize not being in prison, consistent with the Due Process Clause? That destroys the right to “liberty” in the sense of freedom from detention. If they can’t, then why is the freedom from detention to be treated any differently than the freedom of speech, for example?
Me: SCOTUS held in Robinson v. California that imprisoning someone based on their mere status, rather than based on anything the person has done, is cruel or unusual punishment. So, it’s an Eighth Amendment issue, rather than a Fifth Amendment issue. Likewise, a person cannot be imprisoned for engaging in free speech, but that’s a First Amendment issue, rather than a Fifth Amendment issue. The Due Process Clause of the Fifth Amendment was not meant to encompass the other amendments, and the other amendments (First, Fourth, Sixth, and Eighth) adequately take care of all of the situations you’ve mentioned, so there’s no need to inflate the Fifth Amendment (inflating any provision of the Constitution is generally a very bad idea under any circumstances).
Andrew: Me: Nope, the 4th Amendment generally requires probable cause, absent an emergency, at least if the person being detained is a US citizen. It’s odd that no justice mentioned the 4th Amendment in the Hamdi case. Maybe that’s because counsel didn’t do so. Anyway, this seems like a 4th Amendment issue, rather than a Fifth Amendment issue.
If, being selected for detention is all it takes under the statute, probable cause undoubtedly exists, but combining the Eighth Amendment as Robinson v. California interprets it perhaps solves the problem. Though I think that misconstrues the Eighth Amendment more than saying “no-cause detention is a denial of due process” somehow “miscontrues” the purpose of the Due Process Clause. Not that I think it’s a significant misconstruction of the Eighth Amendment, but I don’t see any misconstruction of the Due Process Clause at all.
I think the rights against self-incrimination, to trial by jury, to be represented by counsel, etc. are all included in due process, and I think most would agree, surely “due process of law” includes some kind of “process” not (at least explicitly expressed) by the Magna Carta’s “by the law of the land”. It’s not much further to say the other provisions provide either procedural rights to be encompassed in the word “process”, or substantive rights encompassed in the words “life, liberty, or property”
Do you believe the federal government can Constitutionally deny people the equal protection of the law? Without substantive due process, it seems the answer must be yes.
Have you ever heard of Nathan Dane? He’s one of the most overlooked figures in American history. Dane wrote the Northwest Ordinance in 1787 that subsequently governed a vast amount of territory that would later be divided up into states. One of Dane’s greatest achievements in the Northwest Ordinance was to ban slavery in the territories governed by the ordinance. I don’t think that it’s any exaggeration to say that, if it were not for Nathan Dane, there still might well be slavery in the United States.
Anyway, something else Dane did was insert the following clause into the Northwest Ordinance: “No man shall be deprived of his liberty or property, but by the judgment of his peers or the law of the land.” The Northwest Ordinance was adopted by the Confederation Congress in 1787, and re-adopted by the U.S. Congress in 1789.
Years later, Dane wrote a treatise in which he explained this clause borrowed from Magna Carta: “an arrest according to the law of the land means any arrest authorized by the common law, or by statute….” That’s it. That’s what Magna Carta meant, and that’s what the Due Process Clause meant. The Court has gradually given itself vast powers by altering that original meaning, to the point where the Court’s powers presently have no limit. This is a very sad outcome. This country has not been able to preserve the centerpiece of Magna Carta that had been faithfully preserved for half a millennium before this country even existed. This failure is all the more regrettable since it is 100% obvious from the text of the Bill of Rights that Congress believed adoption of the Due Process Clause was entirely compatible with rejection of any other amendment in the Bill of Rights.
Guy: Do you believe the federal government can Constitutionally deny people the equal protection of the law?
Me: Congress does that all the time. Recently, Congress voted to give Nebraska massive financial benefits (under Medicare) that no other state will receive. I believe that violates the General Welfare Clause in Article I, Section 8. So, there are provisions in the Constitution that do apply equal protection principles against the federal government. Another such provision is the Necessary and Proper Clause; when Congress acts pursuant to that Clause, I don’t think that unequal treatment of citizens is necessary or proper. But there may be instances where Congress technically has power that is not constrained by any equality principle in the Constitution; but that merely means that we are trusting Congress to decide what treatment is unacceptably disparate, rather than trusting the courts to make that decision.
Keep in mind that the British parliament has been bound by no constitutional equality provision for a millennium, but that fact hasn’t barred parliament from respecting the principle of equality. Nor has it prevented the people of England from kicking out elected officials who attempt to deprive the people of equal protection.
Andrew: Have you ever heard of Nathan Dane?He’s one of the most overlooked figures in American history.Dane wrote the Northwest Ordinance in 1787 that subsequently governed a vast amount of territory that would later be divided up into states.One of Dane’s greatest achievements in the Northwest Ordinance was to ban slavery in the territories governed by the ordinance.I don’t think that it’s any exaggeration to say that, if it were not for Nathan Dane, there still might well be slavery in the United States.Anyway, something else Dane did was insert the following clause into the Northwest Ordinance: “No man shall be deprived of his liberty or property, but by the judgment of his peers or the law of the land.”The Northwest Ordinance was adopted by the Confederation Congress in 1787, and re-adopted by the U.S. Congress in 1789.Years later, Dane wrote a treatise in which he explained this clause borrowed from Magna Carta: “an arrest according to the law of the land means any arrest authorized by the common law, or by statute….”That’s it.That’s what Magna Carta meant, and that’s what the Due Process Clause meant.The Court has gradually given itself vast powers by altering that original meaning, to the point where the Court’s powers presently have no limit.This is a very sad outcome.This country has not been able to preserve the centerpiece of Magna Carta that had been faithfully preserved for half a millennium before this country even existed.This failure is all the more regrettable since it is 100% obvious from the text of the Bill of Rights that Congress believed adoption of the Due Process Clause was entirely compatible with rejection of any other amendment in the Bill of Rights.
So why the word “process”? Do you interpret this to mean whatever process Congress chooses, above the minimums it must? Do you realize that this interpretation means that the 14th Amendment’s Due Process Clause gives the federal judiciary authority to interpret state laws and state constitutions through habeus corpus proceedings and direct appeals? (Certainly the 14th Amendment creates a federal question, giving them jurisdiction, and how are they to decide the case if they can’t give binding interpretations?) This interpretation destroys federalism entirely… perhaps that was the intent, but neither conservatives nor liberals would be pleased by such an outcome.
Setting aside legal theory and speaking policy and wisdom. I do not see how the Magna Carta’s central guarantee is not “preserved” when it is still the centerpiece of the rule of law today, and is, for the most part, simply interpreted broadly. I am also of the opinion that, with the exception of the Lochner era, the attempts by the political branches to abuse their powers were appropriately held in check by the judiciary, and no social harm was caused. In fact, the Supreme Court has, in the twentieth century, been the most reliable guardian of freedom and arbitrary exercises of power available under our Constitution, that’s due to substantive due process, and I have trouble finding that to be a bad thing.
And I still think Robinson v. California stretches the Eighth Amendment more than a prohibition on legislated no-cause detention stretches the Fifth. And don’t tell me it is Constitutional, else why the Bill of Attainder Clause? What a pointless clause if it can be so easily circumvented by delegating free detention power to the executive directly at any time. (if that only applies to executions, then change no-cause detention to no-cause execution).
Andrew: Another such provision is the Necessary and Proper Clause; when Congress acts pursuant to that Clause, I don’t think that unequal treatment of citizens is necessary or proper.
If the Necessary and Proper Clause prevents laws that are unjust, then you have merely shuttled the power of substantive due process into another Constitutional provision. And bizarrely, you have done it in such a way that gives the Court enormous power to strike down any federal law it considers unjust, but virtually no such power over state laws in spite of the Fourteenth Amendment, unless you consider the scope of the Necessary and Proper Clause to be a purely political question. Though even if you do, you could hardly accuse the Court of “misconstruing” the literal meaning of the Clause if they decided it wasn’t a political question.
Also, the idea that the Due Process Clause needed to be in the constitution for the limited meaning you give it to have effect makes little sense, why is the writ of habeas corpus mentioned in the original Constitution (sans Bill of Rights)? It’s primary purpose is to prevent unlawful detentions, right? Was it merely oversight by which the Due Process Clause did not make an appearance?
Me: The word “process” means “that which proceeds from.” When the term “process of law” was originally used in this clause, it was widely considered synonymous with “course of law” which in turn meant “consequences of law.”
Guy: Do you interpret this ["process"] to mean whatever process Congress chooses, above the minimums it must?
Me: As long as Congress respects the minimums that it must respect, then of course Congress can do whatever it wants. If you’re asking what restraint the Due Process Clause places on Congress, it prevents Congress from removing the restraint that this same clause places on the executive; i.e. it prevents Congress from giving the executive carte blanche to deprive people of life, liberty, and property.
Guy: Do you realize that this interpretation means that the 14th Amendment’s Due Process Clause gives the federal judiciary authority to interpret state laws and state constitutions through habeus corpus proceedings and direct appeals? (Certainly the 14th Amendment creates a federal question, giving them jurisdiction, and how are they to decide the case if they can’t give binding interpretations?) This interpretation destroys federalism entirely… perhaps that was the intent, but neither conservatives nor liberals would be pleased by such an outcome.
Me: In most cases, comity and respect for federalism require deference to the decisions of state courts on issues of state law, which are treated as definitive pronouncements of the will of the States as sovereigns. That still leaves much room for federal courts to enforce the Due Process Clause of the 14th Amendment. For example, suppose that a Governor of a state deprives someone of property without legal authority, and the state courts acknowledge that there was no legal authority for the deprivation but the state courts fail to invalidate the deprivation as a violation of the state constitution’s due process clause. In a situation like that, the federal courts should invalidate the deprivation. There are many other examples where federal courts can enforce the Due Process Clause of the 14th Amendment. For instance, suppose that a state jails someone who did not receive assistance of counsel, and the state court cuts the prison term in half because there was no assistance of counsel; in a situation like that, the federal courts can come in and say that that’s not an adequate remedy for the Sixth Amendment violation, because the Due Process Clause guarantees a person his liberty (n ot merely a reduced sentence) if he is deprived of due process.
Guy: I am also of the opinion that, with the exception of the Lochner era, the attempts by the political branches to abuse their powers were appropriately held in check by the judiciary, and no social harm was caused. In fact, the Supreme Court has, in the twentieth century, been the most reliable guardian of freedom and arbitrary exercises of power available under our Constitution, that’s due to substantive due process, and I have trouble finding that to be a bad thing.
Me: Dictators are sometimes benevolent. I agree that the Court’s jurisprudence under “substantive due process” has been well-intentioned, but I believe some of that jurisprudence has simultaneously been productive of great harm. Even if I agreed with you that all of the Court’s current policy choices under substantive due process were wise, surely those choices would still be unjustifiable if the Constitution assigns those choices to the political branches. The various other provisions in the Bill of Rights give the Court plenty of ammunition to guard against freedom and arbitrary exercises of power under our Constitution.
Guy: If the Necessary and Proper Clause prevents laws that are unjust, then you have merely shuttled the power of substantive due process into another Constitutional provision.
Me: No, it does not present all laws that are unjust. The NP Power is only one power of many, and so the NP Clause does not apply if Congress is acting pursuant to another power.
Guy: why is the writ of habeas corpus mentioned in the original Constitution (sans Bill of Rights)? It’s primary purpose is to prevent unlawful detentions, right? Was it merely oversight by which the Due Process Clause did not make an appearance?
For one thing, the Due Process Clause applies even if Congress suspends the writ of habeas corpus. Moreover, as mentioned above, the Due Process Clause affects the remedies available for violations of procedural constitutional provisions, such as the right to assistance of counsel (whereas the habeas corpus clause does not). Additionally, the habeas corpus clause applies to incarceration, but not to deprivations of property, or even deprivations of other forms of liberty.
ruuffles:
Without incorporation, the amendments still restrain the federal government. Federalism ftw.
The Federal government can compel the States to do pretty much whatever they want simply by ensuring that money the States needs pass through Federal hands. Without incorporation, fundamental rights are just procedural hurdles.
Andrew:
For one thing, the Due Process Clause applies even if Congress suspends the writ of habeas corpus.Moreover, as mentioned above, the Due Process Clause affects the remedies available for violations of procedural constitutional provisions, such as the right to assistance of counsel (whereas the habeas corpus clause does not).Additionally, the habeas corpus clause applies to incarceration, but not to deprivations of property, or even deprivations of other forms of liberty.
I don’t understand the reasoning here, if the Suspension Clause implicitly allows Courts to remedy unlawful detention, how does due process change whether the right to a jury matters? Either the detention is lawful or it isn’t, and if there was a criminal conviction with no jury, it isn’t. What am I missing?
In what way does due process apply during a suspension of the writ? A right that cannot be enforced is no right at all. That would only make sense if the Due Process Clause implicitly revoked Congress’ power to suspend the writ entirely, and I don’t think that’s what you’re saying.
Are you sure the Framers thought the Eighth Amendment was the essential protector from arbitrary detention? I still think it must have been the Fifth.
If the Bill of Attainder Clause prevents arbitrary legislative detention, and the Due Process Clause prevents only arbitrary executive detention, it seems to me odd that both these can be worked around by passing an enabling act for arbitrary detention unless the Eighth Amendment is construed to prevent it, the Eighth Amendment is not the obvious source of such protection to me.
David Schwartz: The Federal government can compel the States to do pretty much whatever they want simply by ensuring that money the States needs pass through Federal hands. Without incorporation, fundamental rights are just procedural hurdles.
. . . which especially interesting, since the National Guard (i.e. militia) operates on a funding mandate. Suppose a gay Guardsman in CA challenges his discharge under state anti-discrimination laws. Current *state* caselaw (or recent caselaw anyway) requires California to retain him in service despite federal eligibility requirements. The president could cut off 85% of CA’s National Guard funding for non-compliance with federal standards . . . unless there is a Second Amendment right/power for the state to enroll and arm militia under their own law. If the latter were true, then California could sue the feds for the funds, under the “unconstitutional conditions” doctrine.
This is *if* the Second Amendment protects a state power to enroll/arm militia men. I say it does not, and the collectivists are dead wrong on the militia law. But if they are right, it’s a set-up for 50 different militia enrollment standards, and a huge mess for the feds during emergencies, which is precisely what the first constitutional convention was supposed to fix in the wake of Shays’s Rebellion, when the Mass. militia refused to act and the other states got nervous about lack of federal power.
JNHeath, Congress’ power to regulate the National Guard is pursuant to an express enumerated power, this isn’t a spending power issue, and federal statutes trump state constitutions. The guardsman is out of luck unless he can lobby for a change in the law or successfully sue under the federal Constitution.
Guy: Either the detention is lawful or it isn’t, and if there was a criminal conviction with no jury, it isn’t. What am I missing?
If it’s a huge criminal penalty (i.e. a fine) without a jury, then I don’t think that habeas corpus applies at all.
Guy: In what way does due process apply during a suspension of the writ? A right that cannot be enforced is no right at all
My understanding is that a suspension of the writ does not relieve the Attorney General from good faith compliance with the Bill of Rights, and there may also be a cause of action once the Writ is no longer suspended, for what happened while it was suspended.
Guy: Are you sure the Framers thought the Eighth Amendment was the essential protector from arbitrary detention? I still think it must have been the Fifth.
What is “arbitrary” is often in the eye of the beholder. For example, a SCOTUS decision may be arbitrary in the view of Congress and a majority of voters. The Bill of Rights does not use the word “arbitrary” or any synonym of that word. To the extent that the Constitution and Bill of Rights do not limit detentions, the arbitrariness of detentions is a matter for the elected branches to decide (the elected branches being answerable to the people). If by the term “arbitrary detention” you mean detention without probable cause that any crime has been committed, then the Fourth Amendment is a stringent limitation, but the Fourth Amendment still allows detention of material witnesses as I already mentioned. In a Korematsu-type situation (imprisonment authorized by Congress because of status) then the Eighth Amendment may apply because of Robinson, or perhaps the Article IV right to travel might be relevant because you cannot go traveling if you’re locked up in an internment camp. On the other hand, if FDR hadn’t interned Japanese-Americans, and a few of them consequently enabled Japan to develop the A-bomb, then maybe our views about the whole thing would be different. In any event, the Due Process Clause by itself does not give the judiciary power to free people in a Korematsu situation, if Congress has given authorization. People are always looking to the Due Process Clause to impose their view of right and wrong against the majority’s view of right and wrong.
Mark Field: I think your agreement here substantially undercuts your opposition to SDP as applied to the 14th A DP clause.
I think your agreement here substantially undercuts your support of SDP as applied to the 14th A DP clause. The majority of state supreme courts had not yet specifically addressed whether SDP was a valid concept (i.e. they had not altered the English common law rule that SDP is baloney). Those state supreme courts that had specifically addressed SDP were split. The leading case for SDP was the Wynehamer case in New York State, and Wynehamer was later rejected by the U.S. Supreme Court in Mugler v. Kansas, 123 U.S. 623, 657, 669 (1887).
I think your agreement here substantially undercuts your support of SDP as applied to the 14th A DP clause.
From an originalist perspective, the only important question is what the ratifiers thought the clause meant. That’s hard to know, but if SDP was relatively common in state courts by 1868, they may very well have understood it that way. At the least, there’d have to be some evidence on that score.
As for Mugler, it’s odd that you’d cite that case since the Supreme Court was then in the process of creating SDP rights under the 14th A, and continued to do so for 50 years thereafter.
One other point that hasn’t been made so far, and since it’s unrelated to my other comments I’ll make it separately.
The due process clause serves a separation of powers function. What it does is allow the courts to prevent themselves from being used as instrumentalities of injustice as they typically were in Stuart England (murder by judiciary being a favorite tactic of the Stuarts and the Tudors before them).
Much of the time, this can be accomplished by procedural protections. But when the legislature attempts to enact a substantive wrong and to use the courts as the method for carrying out that injustice, the courts can, at least in extreme cases, decline to be used in that fashion.
Giving judges an absolute veto over all statutes old and new does not enhance separation of powers, but rather subordinates every elected official in the state and federal governments to the will of the federal judiciary. And the idea that the framers of the 14th Amendment possibly intended the DP Clause to have a meaning totally foreign to the original meaning of the same words in the 5th Amendment does not make sense.
Giving judges an absolute veto over all statutes old and new does not enhance separation of powers, but rather subordinates every elected official in the state and federal governments to the will of the federal judiciary.
The argument that power might be abused is not an argument at all. Power must be given if we’re to have government at all. In any case, the failure to give power to the judiciary would subordinate us all to the whims of majority tyranny.
And the idea that the framers of the 14th Amendment possibly intended the DP Clause to have a meaning totally foreign to the original meaning of the same words in the 5th Amendment does not make sense.
It doesn’t have to be logical, it just has to be true. People are illogical all the time. I know, for example, that I am not Spock.
In any case, there’s nothing inconsistent at all. The framers of the 14th A had good reason to be skeptical of the willingness of the states to protect basic rights (a skepticism more than borne out by the next 100 years). Adding more protection to individuals is fully consistent with the basic purpose of that Amendment.
Mark Field: In any case, the failure to give power to the judiciary would subordinate us all to the whims of majority tyranny.
No one is suggesting that the judiciary should have no power. That is a straw man. What is being suggested is that the judiciary should not have absolute power.
SDP does not have “any limit but the sky” as Oliver Wendell Holmes put it in Baldwin v. Missouri (with Brandeis concurring). Ending SDP would not end judicial review, and would not end the judiciary’s application of the rest of the Bill of Rights.
The Court unanimously acknowledged in 1985 that, “the substantive content of the [due process] clause is suggested neither by its language nor by preconstitutional history.” In other words, the SDP doctrine is BS.
Mark Field: Adding more protection to individuals is fully consistent with the basic purpose of that Amendment.
This mischaracterizes and oversimplifies the issue. In McDonald v. Chicago, for example, there are life and liberty interests on both sides of the case. Gun owners want to be able to protect themselves, but at the same time people who don’t own guns desire not to get shot accidentally or shot during commission of a crime. In other words, adding more protections for some individuals almost always strips away protections for other individuals.
Guy: JNHeath, Congress’ power to regulate the National Guard is pursuant to an express enumerated power, this isn’t a spending power issue, and federal statutes trump state constitutions. The guardsman is out of luck unless he can lobby for a change in the law or successfully sue under the federal Constitution.
Guy — I published an article about federal preemption of state militia law. Congress has an express power and can preempt state militia law, but under current statutes the National Guard is structured under a funding mandate and thus compliance with federal law is nominally “voluntary”. The guardsman in question was not hypothetical — his name was Andrew Holmes. Last I heard the California courts ruled in his case that homosexuals must be retained in *state* Guard service even though the President can withhold all federal funding due to the state’s non-compliance with enlistment standards.
If the 2nd Am collectivists were correct, the state would have a “right” to retain Holmes in state service (i.e. to designate and arm him as a militiaman) *and* keep their funding, because funding cannot (usually) be made conditional on waiving a constitutional right.
SDP does not have “any limit but the sky” as Oliver Wendell Holmes put it in Baldwin v. Missouri (with Brandeis concurring). Ending SDP would not end judicial review, and would not end the judiciary’s application of the rest of the Bill of Rights.
Lots of powers have no limit. The tax power, for example. And I doubt there are many restrictions on the war power either. We rely on other factors to restrain them, not “parchment barriers”.
In McDonald v. Chicago, for example, there are life and liberty interests on both sides of the case. Gun owners want to be able to protect themselves, but at the same time people who don’t own guns desire not to get shot accidentally or shot during commission of a crime. In other words, adding more protections for some individuals almost always strips away protections for other individuals.
Andrew: This mischaracterizes and oversimplifies the issue. In McDonald v. Chicago, for example, there are life and liberty interests on both sides of the case. Gun owners want to be able to protect themselves, but at the same time people who don’t own guns desire not to get shot accidentally or shot during commission of a crime. In other words, adding more protections for some individuals almost always strips away protections for other individuals.
The presence or absence of Chicago’s gun ban impacts a resident’s chances of being shot, accidently or on purpose, very little.
The taxing power has many limits. The amount of a person’s wealth that the feds can tax each year under the 16th Amendment is limited to the amount that the person earns each year, and there are other limitations on the taxing power in the original unamended Constitution. All of these taxing powers are further limited by the ability of voters to stop it.
ruuffles says:
A right to be free from unreasonable searches and seizures should mean the same thing in Chicago as it does in Cheboygan. The Second Amendment should receive the same treatment.
December 31, 2009, 9:19 amSo … how does Blackman feel about local standards for obscenity?
BZ says:
Continuing the sci-fi theme from a few posts down, Blackman sees (at least in his first, and presumably most important, point) a form of Zeroth Law analysis. There are some laws which are viewed as bedrock principles (Asimov’s Three Laws of Robotics), but there is a more fundamental, survival-based Law which over-rides those laws (the unwritten Zeroth Law). As illustrated by the recent I, Robot movie (which was nothing like the book, but looked at separately was not really that bad), this analysis is usually invoked to protect the many by denying liberty of the few, and is usually defeated in the name of individual liberty and freedom. Powerful message, especially when inverted, as in the Star Trek movies: “No, Spock, the needs of the one outweighed the needs of the many.”
And it is, in fact, the right way to write a Supreme Court brief. As I try to teach young brief-writers, the Supreme Court does not care about your client, nor really about the specific case you bring. Instead the Supremes care, as Rex Lee once told me, about “protecting the harbor.” They look for the consequences, not of your clients’ actions, but of their own. Is there something in this decision which will cascade through the myriad channels of the law, wrenching cracks in bedrock principles? Is there a Zeroth Law at work here, and which one? That is what you try to write. To mix my sci-fi metaphors (and movies): “I know. If I see them, I’ll do this [cupping his hand to his mouth]: ‘Caw, caw.’” “What are you, an infant? We have these!” [holding up a communicator].
This brief does not really do that. It is a defensive brief, which looks essentially at just this one situation. Compare the extensive discussion of what the law “is” (or more precisely “was”) on pages 23-30, with the one-paragraph analysis of what it means on pp 30-31. If there is a Zeroth Law analysis in this brief, it is that both the legislative and executive branches through history have made a particular interpretation. Nice, but hardly powerful to a Court which includes RBG and now SS (e.g., in CitzUnited, let’s raise the idea that corporations don’t have rights).
Thus, if Blackman were right, this would be a more powerful brief. But it’s a series of sound bites, not a call to action.
December 31, 2009, 9:40 amJNHeath says:
They’re still arguing collectivism, i.e. against the legitimacy of _Heller_ itself. It is well past time they be confronted with the body of Militia Clause caselaw that makes state militia law subject to federal preemption. Rather than defend the RKBA, attack the collectivist on its own ground: miltia law. “The best way to keep the enemy out of your country, is to go into his.”
December 31, 2009, 12:18 pmG.R. Mead says:
If the Second Amendment is read in structural terms, vice “rights” terms (not that I disagree with the rights arguments, but it is first and foremost a structural document) — we should have we have structural limitation as we do with the dormant commerce clause preclusion. Consider the structural argument against States’ banning or limiting possession or adequate use of proper militia arms (Heller instructs us in that, I think). I have not seen this argument made, though I may have missed it.
If the Federal government has a structural need to have an effective militia to call out, then, as with dormant commerce clause issues, the interest of the Federal government in uniformity displaces state’s regulatory authority. In areas that by necessity would impede a coherent and general Federal power, for which uniformity is a key element — the States may not make law. Since the United States could not rely on a militia who was, as a matter of state public policy, disarmed by law, then there is structural “dormant militia clause” (Art. 1, Section 8, Cl. 16) that should preclude State disarmament of the people because this would cause plainly adverse impact to the uniformity, availability and effectiveness of the militia. The States are NOT given the power “of organizing, arming and disciplining, the Militia”, — Congress is; the States have only the power of appointment of officers and training them –(and woefully deficient in that regard also, IMO).
This is no longer an academic question in light of the earlier post observing that militia action occurred on Flight 93, and a recent repetition, to happier result in the Christmas Day airline bombing attempt.
At the very least, this supports the concept that a “well-regulated” militia (i.e. — well trained and well-ordered in its historical meaning) has a continuing role in the structural concerns of the nation’s security domestically. The structure of a “well-regulated militia” being available for BOTH the “security of a free State” and for the President to call out “into the actual Service of the United States” would be severly limited were a state to ban possession of arms wihtin its borders — or in any significant geographic portion thereof.
If Katrina taught us nothing else it should teach us that the possiblity of large scale and civil disorder in urban complexes is a very real possibility in both the acts of war we should be anticipating and in the wake of disasters, “man-caused” or otherwise. If say, Detroit, were in insurrection, the President would be severely limited in his ability to call out the loyal militia to assist in putting it down — if the militia were not already armed where they were.
December 31, 2009, 12:28 pmJoe - Dallas says:
Two points – first the argument of whether the 2nd protects the right of the militia vs right of the people. Going back to my days of diagramming sentences in the 9th grade, the most reasonable interpretation is that there are two rights the 2nd protects 1) the right of the militia not to be infringed and 2) the right of the “people” to keep and bear arms.
The second point is a conceptional issue on incorporation – Aren’t all the amendments meaningless without incorporation. By the original ratification of the constitution by each state, did each state adopting and ratifying the constitution not agree to be bound by the entire constitution including the bill of rights – and therefore essentially incorporating the bill of rights. Could Virginia ratify the constitution and then immediately confiscate all private property and then not be in violation of the 5th ad?
Do we have a whole body of case law on incorporation which is based on a faulty premise that the states were free to ignore the bill of rights.
December 31, 2009, 12:39 pmruuffles says:
Without incorporation, the amendments still restrain the federal government. Federalism ftw.
December 31, 2009, 12:46 pmA. Dawson says:
I would have more respect for the respondents brief if they had simply said…
Slaughterhouse should be reversed.
There are grounds for incorporation via both routes.
We still do not want it incorporated… justices… please make an exception in this case.
It disturbs me that the respondents are willing to throw a whole host of rights under the bus just because they don’t happen to like the 2nd Amendment.
They are going to lose, they just don’t know how.
Let’s hope the justices don’t botch this opinion.
Die Slaughterhouse… die.
December 31, 2009, 12:52 pmJoe - Dallas says:
Ruuffles :
I agree that without incorporation, the amendments still restrain the federal government – but continuing with my example if you are a resident of Virginia (my apologies to the people of Virginia in this example) and assuming that Virginia doesn’t have the equivilant of the 5th ad in their state constitution or in their statutes, would Virginia be free to confiscate any or all real property without just compensation. The 5th amendment would be meaningless.
December 31, 2009, 12:58 pmErik says:
That might have flown. Claiming that Heller was deficient wasn’t a good way to start, however.
There are echoes of the rather disturbing NAACP brief [pdf] at work here. The NAACP brief went so far as to say,
Counsel for Chicago/Oak Park are claiming that Slaughterhouse should stand because it allows them to keep a social policy that has failed to make citizens safer.
Lastly, there’s this weirdness:
Are they arguing for a 9th Amendment “emanation” protecting self-defense?
December 31, 2009, 1:24 pmMark N. says:
I don’t think it’s widely disputed that, prior to the passage of the 14th Amendment, that was indeed the case. With a few exceptions (like guaranteeing to states a “republican form of government”), the federal constitution was only intended to limit the federal government’s power, not to protect citizens from curtailment of their rights by their own state governments— that was the job of state constitutions.
December 31, 2009, 1:30 pmJosh Blackman says:
The First Amendment obscenity standards always troubled me. How can the Constitution mean different things in different states? And why is the first (and perhaps the Second) Amendment subject to that treatment, but the other amendments aren’t. Surely the needs of the police to investigate crimes is different in Manhattan than Montana.
December 31, 2009, 1:59 pmJNHeath says:
G.R. Mead: There *is* a “dormant militia clause”. I wrote about it here, and blogged using that very term here.
Contra the collectivist theory of the 2nd Amendment, the states have no legal remedy if Congress dismantles the militia by ill regulation, or by limiting membership, or by conscripting all militiamen into the regular service and breaking up the local units. Caselaw is pretty clear on all the above.
The states cannot enroll (and thus arm as militia) citizens, in contravention of Congress. Presumably, as you point out neither could the states *disarm* the militia members in contravention of Congress.
The catch is that in the latter case, the state gun law would presumably be preempted only if it trod upon a federal militia prerogative of arming the militia (presumption going with the state police power, I think). I don’t think a dormant federal power would in this case be sufficient to preempt the state law, and if sufficient I suspect only the federal government would have standing to litigate.
SCOTUS in Houston v. Moore 18 U.S. 1 (1820):
December 31, 2009, 3:00 pm“Upon the subject of the militia, Congress has exercised the powers conferred on that body by the constitution, as fully as was thought right, and has thus excluded the power of legislation by the States on these subjects, except so far as it has been permitted by Congress; although it should be conceded, that important provisions have been omitted, or that others which have been made might have been more extended, or more wisely devised.”
Guy says:
As I have already pointed out numerous times, there are no rights that could be protected by P or I that can’t be protected just as well by SDP, reviving P or I would weaken the basis for SDP’s existence, which is why many people are skeptical of overturning Slaughterhouse.
December 31, 2009, 5:55 pmAndrew says:
There are also no rights that could be protected by P or I that can’t be protected just as well by the Third Amendment (if we are willing to completely misconstrue the Third Amendment).
James Madison proposed the rights to arms and due process in a single unitary bill, but the Congress split it up into separate amendments. Congress did this so that the states could vote up or down on each one separately; e.g. Congress thought it would be acceptable for the states to ratify the right to due process, but reject the right to keep and bear arms. And the framers of the Fourteenth Amendment’s Due Process Clause meant to copy the meaning in the Fifth.
December 31, 2009, 6:51 pmGuy says:
But what of stare decisis? It seems to me there must be a compelling reason to revive PoI. The fact that the existing caselaw does not need to be upset to incorporate the Second Amendment, and that reviving PoI would have relatively minor changes to the substantive protections of the Fourteenth Amendment, and that those changes are irrelevant to the outcome of this case, there is no good case for overturning Slaughterhouse here.
If you want to overturn Slaughterhouse, wait for a case where the distinction between PoI and SDP makes a legal difference.
Also SDP does not completely misconstrue the Due Process Clause, I’ll admit the argument does not comport extremely well with originalism, but it’s not as if there is no textual foundation whatsoever: a law infringing the freedom of speech undoubtedly deprives a person (indeed, all people subject to the law) of liberty without first subjecting them to the due process of law.
December 31, 2009, 8:27 pmGuy says:
Andrew,
Also this argument doesn’t help to assuage my concerns that the real goal here is to destroy substantive due process, and Second Amendment incorporation is only of secondary importance.
December 31, 2009, 8:36 pmGuy says:
Plus, the Federalists thought the entire Bill of Rights was complete surplusage, so the argument that the Due Process Clause can’t possibly be construed to render the substantive protections in the Bill of Rights surplusage is not as compelling as you think.
December 31, 2009, 8:45 pmJNHeath says:
Guy — unlikely that the Second Amendment is a secondary goal in this case, and undermining due process the primary goal. McDonald is a successor to _Heller_, and is being handled by the same people. They could hardly have invested so much in an improbable Second Amendment case in speculation that they would reach SCOTUS, prevail, then use the first case as a basis to undermine due process in a subsequent case. It would be like starting a rock band in expectation of using success as a launch pad for your real goal of becoming an astronaut.
December 31, 2009, 9:12 pmGuy says:
Well, ok, “secondary” overstates my case. But I don’t think I’m being paranoid when I suspect that this tactic is borne out of spite for SDP, and that undermining the currently understood extent of the Due Process Clause is a goal here.
December 31, 2009, 9:16 pmAndrew says:
I didn’t mention any argument about surplusage. If the Due Process Clause encompasses the specific substantive protections in the Bill of Rights, then those specific substantive protections could be characterized as surplusage regardless of whether they are in separate amendments or not. In contrast, the separateness of the amendments clearly and unequivocally proves that Congress believed that adoption of the Due Process Clause would be compatible with rejection of the right to keep and bear arms; that fact has nothing to do with any surplusage argument.
Also, Guy, I’m not trying to assuage your concerns that a goal here is to destroy the doctrine of substantive due process. That doctrine is a huge, insidious error that should be destroyed. Revival of the moribund Privileges or Immunities Clause is another worthy goal here, seeing as how it has been treated like a dead letter for so long. And such a revival does not require overturning Slaughter-House (see the amicus brief of the American Civil Rights Union).
All of these are appropriate arguments to make in the context of the present case.
December 31, 2009, 10:38 pmG.R. Mead says:
I am glad for the point. I feel strongly that rights and duties must correlate in a sound social structure. I think the Founders agreed with that general premise — and we have strayed from it.
On the point of standing — it seems to me that a member of the militia is invested with a legal duty and public office — at a minimum in the “dormant” condition of maintaining an effective readiness to serve — subject to the power of Congress to order the discipline of that duty in various particulars (a power mostly unexercised, FWIW). But one particular of militia service is to be armed with the ordinary weapons of the day ( pace Heller) and prepared to use arms to good effect when that duty is properly invoked.
If someone by color of office or law impedes or usurps the duty of the office of the militia (readiness and arming himself in the “dormant state”) — the writ quo warranto ought to be available to determine the authority for the attempted imposition or limitations upon the public office of the militia. It seems a fairly straightforward standing issue — once we translate the private rights arguments into the correlative tersm of public duties …
Just a thought.
December 31, 2009, 10:47 pmGuy says:
It proves that Congress did not think that the Due Process Clause did not clearly and unequivocally imply the Second Amendment, it shows that at least many of them did not understand the Due Process Clause in such broad terms, it does not show that they would have rejected the broad understanding of due process that exists today. I’ll admit that there was “misconstruction” in the sense of “re”-construing the meaning of the Due Process Clause when “liberty” was reconstrued to include substantive rights, and not just freedom from detention, but that’s it.
You say that substantive due process is a “huge, insidious error”, please tell me one practical effect that it has had, that privileges and immunities could not have, that you think were bad. If you can give me such an example, wait until that example surfaces before you try to bring this case, that’s basic rules of stare decisis and Constitutional avoidance. If you can’t think of such an example, then what’s the problem? Do you dislike substantive due process solely because you think it is aesthetically distasteful in an intellectual way?
I suspect that you envision the PoI Clause as being somehow different from SDP, but that’s ridiculous. PoI differs from SDP in only three respects:
December 31, 2009, 11:02 pm(1) PoI protects rights that can’t be characterized as relating to life, liberty, or property. (If any such rights exist)
(2) PoI doesn’t protect noncitizens (the freedom to strip rights from noncitizens hardly seems like a goal important enough to overturn precedent that is more than a century old.)
(3) It’s possible that some of the rights protected by PoI can be revoked or regulated by the Federal Government, either at will, or under certain conditions (such as the writ of habeus corpus being suspended in times of invasion or insurrection), but the Fifth Amendment only allows such abrogations by the federal government when they are inherent in the form of the right (as with the writ)
That’s it, that’s all, there can be no further distinctions between the two ideas. Now explain to me why you think bringing back PoI is vital, because you need one or more of these distinctions to exist.
Guy says:
And the fact that Congress proposed the Bill of Rights in the first place clearly and unequivocally proves that Congress believed that adoption of the Constitution would be compatible with rejection of the Bill of Rights.
Except it didn’t, or at least not all of its members did, because the Federalists certainly thought that the Bill of Rights had no meaningful legal effect in light of the body of the Constitution, this is why the Ninth and Tenth Amendments were added at the end, to basically say “of course, none of the previous eight amendments do anything anyway, so who really cares?”
December 31, 2009, 11:20 pmAndrew says:
I’ll answer those questions very briefly.
First, an example of misuse of SDP is the decision limiting visitation by grandparents in Troxel v. Granville; that decision may have been wise as a policy matter (or not), but it involved no right that was already enforceable nationwide against the federal government, and thus did not involve one of the “privileges or immunities of citizens of the United States.”
Second, I dislike substantive due process not because it is aesthetically distasteful in an intellectual way, but rather because it has nothing to do with the original meaning of the clause, thus tending to destroy constitutional governance; I also dislike SDP because it confers unlimited legislative power upon unaccountable judges, thus tending to destroy democracy.
December 31, 2009, 11:22 pmAndrew says:
That’s an unusual interpretation, and I don’t agree with it. The Ninth Amendment was written to protect what Madison called the “great residuum” of rights that flow from having a government of limited and enumerated powers, such as the right protected by SCOTUS in United States v. Lopez; the Ninth Amendment does not render all natural rights enforceable against the federal government. See United Public Workes v. Mitchell (“If granted power is found, necessarily the objection of invasion of those rights, reserved by the Ninth and Tenth Amendments, must fail”).
Think about it: the Ninth Amendment says that the enumeration of rights shall not be construed in a particular way, but it does not say that the enumeration of powers shall be construed that way too.
December 31, 2009, 11:31 pmGuy says:
It was not enforceable nationwide against the government because it never occured to anyone that the government might have power to infringe on it. If you don’t think the Justices would have incorporated that “privilege” into PoI from the Ninth Amendment, you are sorely mistaken, hence the lack of difference between PoI and SDP.
SDP does little more than what PoI can do (the person-citizen distinction is the most significant), so I see no serious dilution of Constitutional governance.
The Justices learned their lesson about abuse of SDP in the Lochner era. Anyway, PoI can be abused as readily, so no significant difference exists.
December 31, 2009, 11:34 pmAndrew says:
Any clause in the Constitution can be readily abused, which merely proves that our system of government is imperfect. A correct interpretation of the PorI Clause only applies enumerated rights against the states, not unenumerated rights.
December 31, 2009, 11:38 pmAlice says:
Ignoring the comments from the extremely young (and I can’t take seriously anyone as young as the children I nursed and diapered), the reality is that Chicago put out a good brief. Most of us here surely disagree with it. We may hope to heavens that it does not carry the day. But the brief is good enough that — if the Court wants to uphold the 7th Circuit opinion — Chicago gave them the ammo to do so.
Folks, it canNOT be assumed that the “good guys” have the ball over the line yet. The ball is still very much in play.
January 1, 2010, 12:00 amGuy says:
Yes, but why does it matter which clause is used? Textually, both clauses lend themselves to either interpretation (with the proviso that “liberty” in the Due Process Clause is broadly understood), it seems like you’re trying to switch clauses because it just gives you a chance to reboot the system, hope you get lucky, and try to get a result closer to the one you like.
January 1, 2010, 12:44 amGuy says:
That’s the same thing I said, the Federalists opposed adoption of a Bill of Rights because they didn’t believe the enumerated powers of Congress made it possible for Congress to violate, say, the freedom of speech. Others were more skeptical of that interpretation, but disagreement about whether some rights should be singled out as “special” certainly did exist. This is a strong argument in favor of finding that if the Bill of Rights is to be incorporated against the states, there may very well be other freedoms incorporated against the states as well.
Of course, every law impinges on freedoms to some extent, this is the reason for the creation of the rational basis test and strict scrutiny to allow the proper balancing of competing interests to occur.
January 1, 2010, 12:54 amAndrew says:
Guy, you’ve agreed that Congress in 1789 thought that the Due Process Clause did not clearly and unequivocally imply the Second Amendment. This is clear from the text of the Constitution. So, shouldn’t we ask why Congress had this view, given that the right to keep and bear arms was already deeply entrenched in 1789?
The reason is clear. The phrase “due process of law” had a meaning that was already fixed by English common law. The King’s Bench stated in 1704 that, “the words due process of law [mean] … that all commitments must be by a legal authority.” William Holdsworth’s great treatise on English law confirms that due process of law was “in substance a demand that no violence be offered to person or property without legal warrant.”
Once you depart from this original meaning, there are no limits. A modern textual reading of the Due Process Clause suggests that it only involves procedure. But, historically in England, this clause did impose substantive limitations, although only to the extent that it forbade extra-legal deprivations of life, liberty, and property.
If you discard the modern textual reading, and also discard the original meaning borrowed from English law, then you are left with a Supreme Court that has unlimited power to deprive anyone it pleases of life or liberty, in order to grant life and liberty to whomever else the justices feel empathy toward.
In this case, victims of accidental shootings, and unarmed victims of homicide, will lose their lives in greater numbers if the City of Chicago loses this case. On the other hand, if the City of Chicago wins this case, then the lives and liberty of disarmed crime victims will be lost in greater numbers. In other words, there are life and liberty interests on both sides. That is often true of controversies in this country, and I do not accept that five Supreme Court justices have carte blanche to dictatorially impose their preferred solutions on the rest of us, with respect to an unlimited range of issues ranging from grandparental visitation to abortion to assisted suicide, to whatever else the five justices feel strongly about. This was obviously not the intended meaning of thre Due Process Clause.
January 1, 2010, 1:09 amAndrew says:
By the way, even if you dispute that the right to keep and bear arms was already deeply entrenched in 1789, surely it’s beyond dispute that other substantive rights in the Bill of Rights were already deeply entrenched by 1789 (e.g. the right to be free from cruel and unusual punishment). Congress did not believe that ANY of those other rights followed from the Due Process Clause, which is why Congress allowed the states to ratify the due process right while rejecting the others.
January 1, 2010, 1:27 amGuy says:
What do you make of the argument that the word “liberty” is best understood to encompass all the substantive rights that the Framer’s considered vital, and in determining what those rights are, the provisions in the Bill of Rights are important indicators, signposts, if you will.
January 1, 2010, 3:43 amAndrew says:
The word “liberty” can be given as expansive a meaning as possible, but nevertheless the DP clause lets that liberty be taken away with “due process of law.” This same principle can be expressed slightly differently: liberty may be taken away by the “law of the land,” and otherwise may not be taken away. Unfortunately, the Court has wanted the DP clause to say more than that, so they’ve cooked up all these supplemental meanings and rationales.
The “law of the land” includes statutes that are otherwise constitutional. If a statute violates some other provision in the Bill of Rights, then it is no basis for depriving anyone of life, liberty, or property. If a statute does not violate any other provision of the Constitution, then the statute can be a basis for depriving someone of life, liberty, or property. It’s not rocket science.
If the states had in 1790 ratified all of the Bill of Rights except the right to be free of cruel and unusual punishment, I don’t think SCOTUS could subsequently infer that latter right into the Constitution. So how can SCOTUS plausibly infer a right to keep grandparents away from grandchildren into the Constitution? C’est impossible.
January 1, 2010, 4:20 amJNHeath says:
I suspect you’re right. They’re killing two birds with one case, and for those that jumped on the wagon only after _Heller_, the SDP is the fatter bird.
January 1, 2010, 10:24 amMark Field says:
The problem I have with Andrew’s argument (assuming originalism is the proper interpretive theory, which I don’t think it is), is that SDP gets its Constitutional force not so much from the 5th A but more from the 14th. This means, to my understanding of originalism, that the phrase should be interpreted as understood in 1868, not 1791. By 1868, “due process” had acquired a substantive meaning under US law. See Orth, Due Process of Law.
January 1, 2010, 11:11 amGene Hoffman says:
Guy,
First of all, be careful construing Andrew’s points with the McDonald team. Andrew’s brief is considered hostile to McDonald by his team.
Second, you asked that “there must be a compelling reason to revive PoI.” I’ll give you three. Slaughterhouse was wrong on the original intent, the original public understanding, and the text of the Constitution and the stare decisis at the time. The court knew full well that the Fourteenth amendment applied the individual rights in the constitution to the states. That’s why it went far beyond what was needed to dispose of the economic rights case in front of it to narrowly construe the 14th when it could have remained silent. Judicial activism for the ages.
As you to your purported concern that this is some sneak attack on SDP I have two points. Lawrence would be better textually supported by P or I. Second, the people who would have such aims actually seem to hold common cause with you in not wanting the constitution read on its text and original public meaning. The McDonald team is the one out claiming correctly that the emperor has no clothes and it’s not because the folks involved don’t like civil rights. On the contrary you can see an example of that here: http://www.abajournal.com/magazine/article/first_amendment_footloose/
-Gene
January 1, 2010, 2:31 pmGene Hoffman says:
Alice, I expect your comments on Heller at an equivalent time were about the same. Counting to 5, it seems quite hard to imagine 7/4/2010 with a Chicago Handgun Ban still in place. Now, we may have to count 3-2-4 or somesuch, but it’s still pretty obvious how one gets to 5 (or more.)
-Gene
January 1, 2010, 2:36 pmSoronel Haetir says:
I think you have this one entirely backwards. When did grandparents ever have a ‘right’ in the US to access to grandchildren? Such access has always been at the whim of the intervening parents.
You think that a couple in the colonies pre-revolution with minor children would be legally obligated to let the grandparents visit if they sailed over from England? I would find that result entirely perplexing and much at odds with the view that parents have a great deal of latitude over who their children interact with.
January 1, 2010, 3:59 pmFederal Farmer says:
You sound very paranoid. Gura is not arguing to undo any of the current SDP rulings.
January 1, 2010, 5:26 pmAndrew says:
Mark Field mentioned that by 1868, “due process” had acquired a substantive meaning under US law. The only pre-1868 federal case I’m aware of on this point was Dred Scott, which the Fourteenth Amendment overturned. I don’t think the framers of the 14th Amendment were trying to emulate anything in the Dred Scott opinion, but rather were trying to emulate the original meaning of the same clause in the Fifth Amendment.
Soronel Haetir asks: “When did grandparents ever have a ‘right’ in the US to access to grandchildren?…You think that a couple in the colonies pre-revolution with minor children would be legally obligated to let the grandparents visit if they sailed over from England?” There’s a difference between a statutory right and a constitutional right; parents may (or may not) have always had a statutory right to keep the grandparents away, but that does not mean that parents have always had a constitutional right to keep the grandparents away, nor does it mean that states no longer have a constitutional right to make this kind of determination by statute.
January 1, 2010, 6:34 pmMark Field says:
Orth’s book discusses quite a few of them, but my recollection is that they were mostly state cases. Which makes sense.
January 1, 2010, 8:19 pmGuy says:
What you fail to understand is that if, for example, the freedom of speech, and not just freedom from detention, is understood to be liberty, then the freedom of speech belongs to everyone until they have been found guilty of a crime by due process of law. Thus a law that infringes the freedom of speech of noncriminals (even by criminalizing speech) is as presumptively invalid as a law allowing for executive detention in peacetime without trial.
If liberty is understood this way, then saying a law that treads on the substantive right of free speech follows due process is as ridiculous as saying criminalizing not being in jail allows for due process.
January 1, 2010, 8:55 pmAndrew says:
One of us fails to understand. Suppose a law impacts a person’s freedom to shoot up with cocaine, or to go streaking at football games. Such law would impact the “liberty” protected by the DP Clause, but that doesn’t mean the DP Clause gives people that liberty until they have been found guilty. Same with a law impacting freedom of speech.
There were state cases going both ways.
January 2, 2010, 12:58 amAndrew says:
I meant to say “until they have been found guilty of some other crime” instead of “until they have been found guilty.”
January 2, 2010, 1:19 amAndrew says:
Question for Guy: would you agree that playing baseball (and skipping on the sidewalk, and wearing a hat, and a million other things) are within the term “liberty” in the DP Clause? Otherwise, executive branch officials could stop you from doing any of those things even though they have no law to back them up; the original meaning of the DP Clause was that the King needed a law to back up any action against his subjects. This doesn’t mean that the law has to protect your right to play baseball…only that the cops cannot stop you from playing baseball unless they have legal authority.
January 2, 2010, 1:51 amGuy says:
This is the reason for the balancing tests the Court uses, and the need for deference when fundamental rights are not at stake, laws are all about balancing conflicting interests, but liberty should not be deprived without cause.
I return a few questions: Do you think Congress can, absent an emergency, authorize the Executive to detain a person at will? Perhaps they can be given a trial just to ensure that they have been properly designated to be detained (think Guantanamo, with Citizens). It’s not a coincidence that two Justices found that the detention of Hamdi was illegal under the non-detention act. That Act codifies the core of due process that you identify, and the claim of the President to be able to detain Hamdi without trial made a mockery of the very idea of due process. All of the Justices but Thomas agreed the detention was illegal if no trial for specific charges was afforded.
If you agree specific charges are necessary, do you concede that a criminal statute can be void for vagueness? Do you think the right to know the charges against you is not substantive?
Can Congress Criminalize more procedural rights? Like the Sixth Amendment right to an attorney? Make it a crime to higher a lawyer to defend oneself in a criminal trial? The Sixth Amendment had a separate up or down vote from the Fifth, so perhaps the right to counsel ought not be considered incorporated.
Can Congress criminalize not being in prison, consistent with the Due Process Clause? That destroys the right to “liberty” in the sense of freedom from detention. If they can’t, then why is the freedom from detention to be treated any differently than the freedom of speech, for example?
January 2, 2010, 4:34 amGuy says:
hire a lawyer, not higher, d’oh.
January 2, 2010, 4:40 amGuy says:
I assume you’re familiar with the Court’s precedents, you must be aware that the freedom to play baseball is protected as a “liberty” under the Due Process Clause according to the case law. That liberty can only be infringed by a law if the law is rationally related to a legitimate government interest.
January 2, 2010, 4:46 amGuy says:
If you think that the no-cause detention law is Constitutional, I would point out that I’m positive that the Framer’s understood the Due Process Clause to be broader than that.
If you think it is unconstitutional, I would point out that the people are being detained for the “crime” of having been selected for detention, if the people in question have no express substantive right to be free from detention absent some wrongdoing or the posing of a threat (and the Constitution expresses no such substantive right- unless you accept that “liberty” encompasses that right, in which case you have accepted the principle of substantive due process), how can that not be a validly defined crime?
January 2, 2010, 5:02 amAndrew says:
Guy asks: Do you think Congress can, absent an emergency, authorize the Executive to detain a person at will?
Me: Nope, the 4th Amendment generally requires probable cause, absent an emergency, at least if the person being detained is a US citizen. It’s odd that no justice mentioned the 4th Amendment in the Hamdi case. Maybe that’s because counsel didn’t do so. Anyway, this seems like a 4th Amendment issue, rather than a Fifth Amendment issue.
Guy: If you agree specific charges are necessary, do you concede that a criminal statute can be void for vagueness? Do you think the right to know the charges against you is not substantive?
Me: Specific charges aren’t needed to detain someone. For example, a material witness can be detained, even though a material witness is not charged with wrongdoing. But still probable cause should generally exist that the person can provide useful evidence. Regarding criminal statutes, or any other statute, if its meaning is unclear then judges can say that it is without effect. Again, this is not a Fifth Amendment issue, but rather is simply a matter of statutory interpretation. The right to know the charges against you is in the Sixth Amendment, so again this is not a Fifth Amendment issue (I’d classify it as a procedural right rather than a substantive right, though I don’t see why the classification matters).
Guy: Can Congress Criminalize more procedural rights? Like the Sixth Amendment right to an attorney? Make it a crime to hire a lawyer to defend oneself in a criminal trial? The Sixth Amendment had a separate up or down vote from the Fifth, so perhaps the right to counsel ought not be considered incorporated.
Me: Not sure what you mean. Congress cannot criminalize the exercise of any constitutional right.
Guy: Can Congress criminalize not being in prison, consistent with the Due Process Clause? That destroys the right to “liberty” in the sense of freedom from detention. If they can’t, then why is the freedom from detention to be treated any differently than the freedom of speech, for example?
Me: SCOTUS held in Robinson v. California that imprisoning someone based on their mere status, rather than based on anything the person has done, is cruel or unusual punishment. So, it’s an Eighth Amendment issue, rather than a Fifth Amendment issue. Likewise, a person cannot be imprisoned for engaging in free speech, but that’s a First Amendment issue, rather than a Fifth Amendment issue. The Due Process Clause of the Fifth Amendment was not meant to encompass the other amendments, and the other amendments (First, Fourth, Sixth, and Eighth) adequately take care of all of the situations you’ve mentioned, so there’s no need to inflate the Fifth Amendment (inflating any provision of the Constitution is generally a very bad idea under any circumstances).
January 2, 2010, 5:07 amGuy says:
If, being selected for detention is all it takes under the statute, probable cause undoubtedly exists, but combining the Eighth Amendment as Robinson v. California interprets it perhaps solves the problem. Though I think that misconstrues the Eighth Amendment more than saying “no-cause detention is a denial of due process” somehow “miscontrues” the purpose of the Due Process Clause. Not that I think it’s a significant misconstruction of the Eighth Amendment, but I don’t see any misconstruction of the Due Process Clause at all.
I think the rights against self-incrimination, to trial by jury, to be represented by counsel, etc. are all included in due process, and I think most would agree, surely “due process of law” includes some kind of “process” not (at least explicitly expressed) by the Magna Carta’s “by the law of the land”. It’s not much further to say the other provisions provide either procedural rights to be encompassed in the word “process”, or substantive rights encompassed in the words “life, liberty, or property”
January 2, 2010, 5:38 amGuy says:
Do you believe the federal government can Constitutionally deny people the equal protection of the law? Without substantive due process, it seems the answer must be yes.
January 2, 2010, 5:50 amAndrew says:
Have you ever heard of Nathan Dane? He’s one of the most overlooked figures in American history. Dane wrote the Northwest Ordinance in 1787 that subsequently governed a vast amount of territory that would later be divided up into states. One of Dane’s greatest achievements in the Northwest Ordinance was to ban slavery in the territories governed by the ordinance. I don’t think that it’s any exaggeration to say that, if it were not for Nathan Dane, there still might well be slavery in the United States.
Anyway, something else Dane did was insert the following clause into the Northwest Ordinance: “No man shall be deprived of his liberty or property, but by the judgment of his peers or the law of the land.” The Northwest Ordinance was adopted by the Confederation Congress in 1787, and re-adopted by the U.S. Congress in 1789.
Years later, Dane wrote a treatise in which he explained this clause borrowed from Magna Carta: “an arrest according to the law of the land means any arrest authorized by the common law, or by statute….” That’s it. That’s what Magna Carta meant, and that’s what the Due Process Clause meant. The Court has gradually given itself vast powers by altering that original meaning, to the point where the Court’s powers presently have no limit. This is a very sad outcome. This country has not been able to preserve the centerpiece of Magna Carta that had been faithfully preserved for half a millennium before this country even existed. This failure is all the more regrettable since it is 100% obvious from the text of the Bill of Rights that Congress believed adoption of the Due Process Clause was entirely compatible with rejection of any other amendment in the Bill of Rights.
January 2, 2010, 5:55 amAndrew says:
Guy: Do you believe the federal government can Constitutionally deny people the equal protection of the law?
Me: Congress does that all the time. Recently, Congress voted to give Nebraska massive financial benefits (under Medicare) that no other state will receive. I believe that violates the General Welfare Clause in Article I, Section 8. So, there are provisions in the Constitution that do apply equal protection principles against the federal government. Another such provision is the Necessary and Proper Clause; when Congress acts pursuant to that Clause, I don’t think that unequal treatment of citizens is necessary or proper. But there may be instances where Congress technically has power that is not constrained by any equality principle in the Constitution; but that merely means that we are trusting Congress to decide what treatment is unacceptably disparate, rather than trusting the courts to make that decision.
Keep in mind that the British parliament has been bound by no constitutional equality provision for a millennium, but that fact hasn’t barred parliament from respecting the principle of equality. Nor has it prevented the people of England from kicking out elected officials who attempt to deprive the people of equal protection.
January 2, 2010, 6:12 amGuy says:
So why the word “process”? Do you interpret this to mean whatever process Congress chooses, above the minimums it must? Do you realize that this interpretation means that the 14th Amendment’s Due Process Clause gives the federal judiciary authority to interpret state laws and state constitutions through habeus corpus proceedings and direct appeals? (Certainly the 14th Amendment creates a federal question, giving them jurisdiction, and how are they to decide the case if they can’t give binding interpretations?) This interpretation destroys federalism entirely… perhaps that was the intent, but neither conservatives nor liberals would be pleased by such an outcome.
Setting aside legal theory and speaking policy and wisdom. I do not see how the Magna Carta’s central guarantee is not “preserved” when it is still the centerpiece of the rule of law today, and is, for the most part, simply interpreted broadly. I am also of the opinion that, with the exception of the Lochner era, the attempts by the political branches to abuse their powers were appropriately held in check by the judiciary, and no social harm was caused. In fact, the Supreme Court has, in the twentieth century, been the most reliable guardian of freedom and arbitrary exercises of power available under our Constitution, that’s due to substantive due process, and I have trouble finding that to be a bad thing.
And I still think Robinson v. California stretches the Eighth Amendment more than a prohibition on legislated no-cause detention stretches the Fifth. And don’t tell me it is Constitutional, else why the Bill of Attainder Clause? What a pointless clause if it can be so easily circumvented by delegating free detention power to the executive directly at any time. (if that only applies to executions, then change no-cause detention to no-cause execution).
January 2, 2010, 6:19 amGuy says:
If the Necessary and Proper Clause prevents laws that are unjust, then you have merely shuttled the power of substantive due process into another Constitutional provision. And bizarrely, you have done it in such a way that gives the Court enormous power to strike down any federal law it considers unjust, but virtually no such power over state laws in spite of the Fourteenth Amendment, unless you consider the scope of the Necessary and Proper Clause to be a purely political question. Though even if you do, you could hardly accuse the Court of “misconstruing” the literal meaning of the Clause if they decided it wasn’t a political question.
January 2, 2010, 6:27 amGuy says:
Also, the idea that the Due Process Clause needed to be in the constitution for the limited meaning you give it to have effect makes little sense, why is the writ of habeas corpus mentioned in the original Constitution (sans Bill of Rights)? It’s primary purpose is to prevent unlawful detentions, right? Was it merely oversight by which the Due Process Clause did not make an appearance?
January 2, 2010, 6:49 amAndrew says:
Guy: So why the word “process”?
Me: The word “process” means “that which proceeds from.” When the term “process of law” was originally used in this clause, it was widely considered synonymous with “course of law” which in turn meant “consequences of law.”
Guy: Do you interpret this ["process"] to mean whatever process Congress chooses, above the minimums it must?
Me: As long as Congress respects the minimums that it must respect, then of course Congress can do whatever it wants. If you’re asking what restraint the Due Process Clause places on Congress, it prevents Congress from removing the restraint that this same clause places on the executive; i.e. it prevents Congress from giving the executive carte blanche to deprive people of life, liberty, and property.
Guy: Do you realize that this interpretation means that the 14th Amendment’s Due Process Clause gives the federal judiciary authority to interpret state laws and state constitutions through habeus corpus proceedings and direct appeals? (Certainly the 14th Amendment creates a federal question, giving them jurisdiction, and how are they to decide the case if they can’t give binding interpretations?) This interpretation destroys federalism entirely… perhaps that was the intent, but neither conservatives nor liberals would be pleased by such an outcome.
Me: In most cases, comity and respect for federalism require deference to the decisions of state courts on issues of state law, which are treated as definitive pronouncements of the will of the States as sovereigns. That still leaves much room for federal courts to enforce the Due Process Clause of the 14th Amendment. For example, suppose that a Governor of a state deprives someone of property without legal authority, and the state courts acknowledge that there was no legal authority for the deprivation but the state courts fail to invalidate the deprivation as a violation of the state constitution’s due process clause. In a situation like that, the federal courts should invalidate the deprivation. There are many other examples where federal courts can enforce the Due Process Clause of the 14th Amendment. For instance, suppose that a state jails someone who did not receive assistance of counsel, and the state court cuts the prison term in half because there was no assistance of counsel; in a situation like that, the federal courts can come in and say that that’s not an adequate remedy for the Sixth Amendment violation, because the Due Process Clause guarantees a person his liberty (n ot merely a reduced sentence) if he is deprived of due process.
Guy: I am also of the opinion that, with the exception of the Lochner era, the attempts by the political branches to abuse their powers were appropriately held in check by the judiciary, and no social harm was caused. In fact, the Supreme Court has, in the twentieth century, been the most reliable guardian of freedom and arbitrary exercises of power available under our Constitution, that’s due to substantive due process, and I have trouble finding that to be a bad thing.
Me: Dictators are sometimes benevolent. I agree that the Court’s jurisprudence under “substantive due process” has been well-intentioned, but I believe some of that jurisprudence has simultaneously been productive of great harm. Even if I agreed with you that all of the Court’s current policy choices under substantive due process were wise, surely those choices would still be unjustifiable if the Constitution assigns those choices to the political branches. The various other provisions in the Bill of Rights give the Court plenty of ammunition to guard against freedom and arbitrary exercises of power under our Constitution.
Guy: If the Necessary and Proper Clause prevents laws that are unjust, then you have merely shuttled the power of substantive due process into another Constitutional provision.
Me: No, it does not present all laws that are unjust. The NP Power is only one power of many, and so the NP Clause does not apply if Congress is acting pursuant to another power.
January 2, 2010, 7:11 amAndrew says:
I meant “prevent” instead of “present” in the last paragraph.
January 2, 2010, 7:19 amAndrew says:
For one thing, the Due Process Clause applies even if Congress suspends the writ of habeas corpus. Moreover, as mentioned above, the Due Process Clause affects the remedies available for violations of procedural constitutional provisions, such as the right to assistance of counsel (whereas the habeas corpus clause does not). Additionally, the habeas corpus clause applies to incarceration, but not to deprivations of property, or even deprivations of other forms of liberty.
January 2, 2010, 7:31 amDavid Schwartz says:
The Federal government can compel the States to do pretty much whatever they want simply by ensuring that money the States needs pass through Federal hands. Without incorporation, fundamental rights are just procedural hurdles.
January 2, 2010, 8:43 amGuy says:
I don’t understand the reasoning here, if the Suspension Clause implicitly allows Courts to remedy unlawful detention, how does due process change whether the right to a jury matters? Either the detention is lawful or it isn’t, and if there was a criminal conviction with no jury, it isn’t. What am I missing?
In what way does due process apply during a suspension of the writ? A right that cannot be enforced is no right at all. That would only make sense if the Due Process Clause implicitly revoked Congress’ power to suspend the writ entirely, and I don’t think that’s what you’re saying.
Are you sure the Framers thought the Eighth Amendment was the essential protector from arbitrary detention? I still think it must have been the Fifth.
If the Bill of Attainder Clause prevents arbitrary legislative detention, and the Due Process Clause prevents only arbitrary executive detention, it seems to me odd that both these can be worked around by passing an enabling act for arbitrary detention unless the Eighth Amendment is construed to prevent it, the Eighth Amendment is not the obvious source of such protection to me.
January 2, 2010, 9:30 amJNHeath says:
. . . which especially interesting, since the National Guard (i.e. militia) operates on a funding mandate. Suppose a gay Guardsman in CA challenges his discharge under state anti-discrimination laws. Current *state* caselaw (or recent caselaw anyway) requires California to retain him in service despite federal eligibility requirements. The president could cut off 85% of CA’s National Guard funding for non-compliance with federal standards . . . unless there is a Second Amendment right/power for the state to enroll and arm militia under their own law. If the latter were true, then California could sue the feds for the funds, under the “unconstitutional conditions” doctrine.
This is *if* the Second Amendment protects a state power to enroll/arm militia men. I say it does not, and the collectivists are dead wrong on the militia law. But if they are right, it’s a set-up for 50 different militia enrollment standards, and a huge mess for the feds during emergencies, which is precisely what the first constitutional convention was supposed to fix in the wake of Shays’s Rebellion, when the Mass. militia refused to act and the other states got nervous about lack of federal power.
January 2, 2010, 9:56 amGuy says:
JNHeath, Congress’ power to regulate the National Guard is pursuant to an express enumerated power, this isn’t a spending power issue, and federal statutes trump state constitutions. The guardsman is out of luck unless he can lobby for a change in the law or successfully sue under the federal Constitution.
January 2, 2010, 10:08 amMark Field says:
No doubt there were, but I think your agreement here substantially undercuts your opposition to SDP as applied to the 14th A DP clause.
January 2, 2010, 11:25 amAndrew says:
If it’s a huge criminal penalty (i.e. a fine) without a jury, then I don’t think that habeas corpus applies at all.
My understanding is that a suspension of the writ does not relieve the Attorney General from good faith compliance with the Bill of Rights, and there may also be a cause of action once the Writ is no longer suspended, for what happened while it was suspended.
What is “arbitrary” is often in the eye of the beholder. For example, a SCOTUS decision may be arbitrary in the view of Congress and a majority of voters. The Bill of Rights does not use the word “arbitrary” or any synonym of that word. To the extent that the Constitution and Bill of Rights do not limit detentions, the arbitrariness of detentions is a matter for the elected branches to decide (the elected branches being answerable to the people). If by the term “arbitrary detention” you mean detention without probable cause that any crime has been committed, then the Fourth Amendment is a stringent limitation, but the Fourth Amendment still allows detention of material witnesses as I already mentioned. In a Korematsu-type situation (imprisonment authorized by Congress because of status) then the Eighth Amendment may apply because of Robinson, or perhaps the Article IV right to travel might be relevant because you cannot go traveling if you’re locked up in an internment camp. On the other hand, if FDR hadn’t interned Japanese-Americans, and a few of them consequently enabled Japan to develop the A-bomb, then maybe our views about the whole thing would be different. In any event, the Due Process Clause by itself does not give the judiciary power to free people in a Korematsu situation, if Congress has given authorization. People are always looking to the Due Process Clause to impose their view of right and wrong against the majority’s view of right and wrong.
January 2, 2010, 12:27 pmAndrew says:
I think your agreement here substantially undercuts your support of SDP as applied to the 14th A DP clause. The majority of state supreme courts had not yet specifically addressed whether SDP was a valid concept (i.e. they had not altered the English common law rule that SDP is baloney). Those state supreme courts that had specifically addressed SDP were split. The leading case for SDP was the Wynehamer case in New York State, and Wynehamer was later rejected by the U.S. Supreme Court in Mugler v. Kansas, 123 U.S. 623, 657, 669 (1887).
January 2, 2010, 12:39 pmMark Field says:
From an originalist perspective, the only important question is what the ratifiers thought the clause meant. That’s hard to know, but if SDP was relatively common in state courts by 1868, they may very well have understood it that way. At the least, there’d have to be some evidence on that score.
As for Mugler, it’s odd that you’d cite that case since the Supreme Court was then in the process of creating SDP rights under the 14th A, and continued to do so for 50 years thereafter.
January 2, 2010, 2:39 pmMark Field says:
One other point that hasn’t been made so far, and since it’s unrelated to my other comments I’ll make it separately.
The due process clause serves a separation of powers function. What it does is allow the courts to prevent themselves from being used as instrumentalities of injustice as they typically were in Stuart England (murder by judiciary being a favorite tactic of the Stuarts and the Tudors before them).
Much of the time, this can be accomplished by procedural protections. But when the legislature attempts to enact a substantive wrong and to use the courts as the method for carrying out that injustice, the courts can, at least in extreme cases, decline to be used in that fashion.
January 2, 2010, 2:43 pmAndrew says:
Giving judges an absolute veto over all statutes old and new does not enhance separation of powers, but rather subordinates every elected official in the state and federal governments to the will of the federal judiciary. And the idea that the framers of the 14th Amendment possibly intended the DP Clause to have a meaning totally foreign to the original meaning of the same words in the 5th Amendment does not make sense.
January 2, 2010, 3:53 pmMark Field says:
The argument that power might be abused is not an argument at all. Power must be given if we’re to have government at all. In any case, the failure to give power to the judiciary would subordinate us all to the whims of majority tyranny.
It doesn’t have to be logical, it just has to be true. People are illogical all the time. I know, for example, that I am not Spock.
In any case, there’s nothing inconsistent at all. The framers of the 14th A had good reason to be skeptical of the willingness of the states to protect basic rights (a skepticism more than borne out by the next 100 years). Adding more protection to individuals is fully consistent with the basic purpose of that Amendment.
January 2, 2010, 5:10 pmAndrew says:
No one is suggesting that the judiciary should have no power. That is a straw man. What is being suggested is that the judiciary should not have absolute power.
SDP does not have “any limit but the sky” as Oliver Wendell Holmes put it in Baldwin v. Missouri (with Brandeis concurring). Ending SDP would not end judicial review, and would not end the judiciary’s application of the rest of the Bill of Rights.
The Court unanimously acknowledged in 1985 that, “the substantive content of the [due process] clause is suggested neither by its language nor by preconstitutional history.” In other words, the SDP doctrine is BS.
January 2, 2010, 5:14 pmAndrew says:
This mischaracterizes and oversimplifies the issue. In McDonald v. Chicago, for example, there are life and liberty interests on both sides of the case. Gun owners want to be able to protect themselves, but at the same time people who don’t own guns desire not to get shot accidentally or shot during commission of a crime. In other words, adding more protections for some individuals almost always strips away protections for other individuals.
January 2, 2010, 5:30 pmJNHeath says:
Guy — I published an article about federal preemption of state militia law. Congress has an express power and can preempt state militia law, but under current statutes the National Guard is structured under a funding mandate and thus compliance with federal law is nominally “voluntary”. The guardsman in question was not hypothetical — his name was Andrew Holmes. Last I heard the California courts ruled in his case that homosexuals must be retained in *state* Guard service even though the President can withhold all federal funding due to the state’s non-compliance with enlistment standards.
If the 2nd Am collectivists were correct, the state would have a “right” to retain Holmes in state service (i.e. to designate and arm him as a militiaman) *and* keep their funding, because funding cannot (usually) be made conditional on waiving a constitutional right.
January 2, 2010, 6:06 pmMark Field says:
Lots of powers have no limit. The tax power, for example. And I doubt there are many restrictions on the war power either. We rely on other factors to restrain them, not “parchment barriers”.
Agreed.
January 2, 2010, 7:44 pmFederal Farmer says:
The presence or absence of Chicago’s gun ban impacts a resident’s chances of being shot, accidently or on purpose, very little.
January 2, 2010, 9:05 pmAndrew says:
The taxing power has many limits. The amount of a person’s wealth that the feds can tax each year under the 16th Amendment is limited to the amount that the person earns each year, and there are other limitations on the taxing power in the original unamended Constitution. All of these taxing powers are further limited by the ability of voters to stop it.
January 2, 2010, 10:12 pmayoo says:
righ, more, want more, haha ,no comments
January 2, 2010, 11:55 pm