In his Stop the Beach opinion, Justice Scalia writes, “The first problem with using Substantive Due Process to do the work of the Takings Clause is that we have held it cannot be done.”
But hold on! The Takings Clause does not apply to the states. The Fourteenth Amendment’s Due Process Clause applies to the states. The Supreme Court has held that the rights protected by the Clause include the rights delineated by the Fifth Amendment via “incorporation.”
You can see where this is going. Enforcing the Fifth Amendment’s Takings Clause against the states via the Due Process Clause is literally an exercise in protecting a substantive right through that clause, and therefore is “substantive due process.”
I understand, of course, that in modern constitutional discourse we distinguish between “substantive due process” and the “incorporation doctrine.” But I think this distinction is incoherent, an illogical historical artifact.
Basically, the post-New Deal Justices who wanted to protect some or all of the rights contained in the Bill of Rights against the states needed to blunt criticism that they were emulating their discredited pre-New Deal predecessors. The pre-New Deal Justices had also protected some of those rights–freedom of speech speech, Takings, etc.–via the Due Process Clause, often with no reference to the Bill of Rights. So the post-New Deal Justices and their defenders asserted that the liberty of contract cases and other unenumerated rights cases involved illegitimate “substantive due process,” while cases “incorporating” the rights found in the Bill of Rights against the states did not.
Grounding the Due Process Clause’s substantive protections in the Bill of Rights and avoiding unenumerated rights may constrain judicial activism, but it’s still a quite literal exercise in “substantive due process.” And given precedent going back to the 1870s implicitly acknowledging that the rights protected by the Due Process are not constrained by the Bill of Rights but apply to all arbitrary deprivations of important rights, and precedents from the 1880s holding that the criminal procedure protections of the Bill or Rights are unprotected by the Fourteenth Amendment, it’s not clear why one kind of substantive due process is inherently more legitimate than the other, or why conservatives should privilege nonsense made up by the liberal Vinson and Warren Courts.
Octavius says:
You’re really just quibbling with the different ways you and Scalia are using the term.
It’s clear Scalia is referring to rights “created” by the substantive due process clause, as opposed to a distinct right that is applied via the 14th Amendment.
June 17, 2010, 2:25 pmJ. Aldridge says:
Interesting Bingham attempted to add the Takings Clause at the last minute but it failed a Reconstruction Committee vote.
Remember also the 14A only protects against state denial, not against the administration of due process.
June 17, 2010, 2:53 pmJay says:
If only there were some other provision of the Fourteenth Amendment that could provide a more textually and historically grounded means of incorporating the Bill of Rights and give us greater nuance in distinguishing between incorporation and substantive due process… It’s really too bad that the only provisions of the Fourteenth Amendment are the Citizenship, Due Process, and Equal Protection Clauses — otherwise, things might make a lot more sense.
June 17, 2010, 3:14 pmA Non-E Mous says:
Yeah! This is a great idea. Maybe a clause that protects citizen’s privileges and immunities…
June 17, 2010, 3:38 pmanon says:
Heck, I’d settle for one that protected privileges or immunities.
June 17, 2010, 4:08 pmDilan Esper says:
I don’t get to say it very often, but Professor Bernstein is absolutely, unambiguously, completely correct.
June 17, 2010, 4:15 pmGuy says:
I’ve never heard anyone argue that incorporation isn’t SDP before, I didn’t even realize that idea was out there, I have heard people talk about SDP to mean “free-standing” SDP unmoored from any specific right, such as the “shocks the conscience” standard, but I always assumed that was a point of terminology, not theory, like when people talk about a violation of “the First Amendment” by a state so they clearly mean the 14th Amendment, it seems quite a bizarre claim to me. If you throw out the doctrine of substantive due process and say that “liberty” is to be construed narrowly to mean “not being in jail” then incorporation (at least through the Due Process Clause) becomes completely illogical.
June 17, 2010, 4:15 pmNelson Lund says:
Here is what Scalia said during the oral argument in McDonald, mocking the respondent’s lawyer for arguing that the right to keep and bear arms is protected by the Privileges or Immunities Clause:
June 17, 2010, 4:39 pmhow do these memory card readers work? HELP!? says:
[...] The Volokh Conspiracy » A Funny Thing About “Substantive Due Process” [...]
June 17, 2010, 4:42 pmJosh Blackman says:
Professor Lund,
June 17, 2010, 5:00 pmI know that you are no fan of substantive due process. Do you accept the distinction between “substantive due process” and the “incorporation doctrine”? If so, how do you explain it?
CJColucci says:
How do you keep judges from just Making Shit Up without leaving unprotected a bunch of rights we want to think we have? I don’t know, but it has been clear to me for decades now that arguing over constitutional theory, methods of interpretation and construction, and so forth isn’t the way.Total Incorporation and nothing else is theoretically tidy, but because we won’t accept it because we don’t want to saddle the states with grand juries, which the founders seemed to think an important protection for liberty but lots of experience has shown to be just another annoying procedure we cling to because we’re used to it, and full-blown jury trials for three-figure civil cases. Old-school substantive due process leaves judges too free to Make Shit Up for most people’s tastes. Selective incorporation is incoherent.
June 17, 2010, 5:11 pmIt’s an unfortunate fact of legal education that we get a large dose of law office history. I suppose it’s natural that someone will work up revisionist law office history in response, but I’ve never been convinced that anyone took the old law office history seriously enough to make it worth anyone’s while to gin up a new version.
Steve says:
Scalia’s mockery wouldn’t be so infuriating if he wasn’t basically right. The only thing is, P&I is the darling not only of the professoriate, but also of the commentariat…
June 17, 2010, 5:41 pmDJ says:
I think Professor Berstein’s missing Scalia’s point. Here’s the full quote (with my emphasis): “The first problem with using Substantive Due Process to do the work of the Takings Clause is that we have held it cannot be done. ‘Where a particular Amendment “pro-vides an explicit textual source of constitutional protection” against a particular sort of government behavior, “that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.”‘ Albright v. Oliver, 510 U. S. 266, 273 (1994) (four-Justice plurality opinion) (quoting Graham v. Connor, 490 U. S. 386, 395 (1989)).”
So Scalia’s not contending here that the the Takings Clause itself isn’t an exercise in substantive due process (or, put another way, that it wasn’t incorporated against the states through substantive duer process). He’s simply pointing out that there needn’t be any recourse to generalized notions of “liberty” or “property” when a specific constitutional provision will suffice. Whether the right created by that provision should be applied jot-for-jot through the 14th Amendment or whether some other form applies to the States is another question.
June 17, 2010, 5:51 pmAndrew says:
Exactly DJ. Scalia wasn’t making a distinction between SDP and incorporation at all. As for Scalia railing against the P or I Clause during oral arguments, we’ll soon see if he was doing anything more than throwing a hardball at Gura.
June 17, 2010, 6:39 pmNelson Lund says:
Josh–
Incorporation doctrine is a subset of substantive due process doctrine.
Andrew–
Scalia wasn’t “railing against the P or I Clause.” He was ridiculing Gura for asking the Court to rely on an original meaning argument rather than on precedents in which Scalia has “acquiesced.”
June 17, 2010, 8:17 pmSuperSkeptic says:
I dunno, maybe we could put those rights we think we have in the Constitution, via Amendment.
June 17, 2010, 8:27 pmStan says:
It already explicitly says there are rights it does not list, which are protected.
June 17, 2010, 9:42 pmSteve says:
I dunno, maybe we could put those rights we think we have in the Constitution, via Amendment.
Oh, good idea, a majoritarian process to ensure minority rights are protected. Fortunately, the Ninth Amendment destroys this argument that the rights enumerated in the Constitution are the only ones which exist.
June 17, 2010, 9:43 pmAndrew says:
Well, Justice Scalia would be doing a lot more than “acquiescing” in SDP if he affirmatively uses it to strike down the Chicago ordinance. That would be a real strategy, especially given that the original meaning of the P or I Clause supports incorporation. Any predictions, Nelson?
June 17, 2010, 10:42 pmAndrew says:
Meant “tragedy” not “strategy”. Will learn to spell someday.
June 17, 2010, 10:45 pmJay says:
Professor Lund, I’m curious — when you say that incorporation is part of SDP, are you saying that as a matter of textual and historical analysis, that’s the correct legal answer, or just that, descriptively, that’s the way we’ve done it and there’s no point going back on that now? Either way, I’d be curious to know if you think the Privileges or Immunities Clause means anything, and if so, what it means.
Also, whether or not we think it’s worth raising P or I more than a century after Slaughterhouse, it seems pretty silly to ridicule Gura for making an argument on the exact question on which the Court granted cert. That’s what still perplexes me about the McDonald oral arguments — if no Justices were even willing to take P or I seriously, why did they grant cert on it?
June 17, 2010, 10:52 pmAndrew says:
A minor detail: only part of incorporation is a subset of SDP. The incorporation of procedural Bill of Rights guarantees is a subset of Procedural Due Process rather than SDP.
June 17, 2010, 11:05 pmgooston says:
Mr. Bernstein,
Do you believe it should be legal for a private restaurant owner to refuse to serve black people because they’re black?
June 17, 2010, 11:45 pmJeff Walden says:
It does seem to me that as the terms are construed these days, they are distinct. SDP subsumes incorporation, but it also includes emanations and penumbras, too.
Scalia’s contention seems to be for a somewhat shorthand form of argument. I suppose that’s basically acceptable, but were it me, I’d explicate it more precisely. Opinions aren’t just hastily-spoken office discussions, after all. Their words and phrasing have long-term importance that should place a premium on precision and clarity.
June 17, 2010, 11:53 pmJeff Walden says:
Nice try at threadjacking, hope nobody falls for it.
June 17, 2010, 11:56 pmSteve says:
You already did.
June 18, 2010, 1:20 amOrganic Essential Oil Production | Natural State of Beauty says:
[...] The Volokh Conspiracy » A Funny Thing About “Substantive Due Process” [...]
June 18, 2010, 8:23 amSuperSkeptic says:
True, but the Court has already shown its disdain for the 9th Amendment, and it only recognizes the rights that are explicit (with the exception of the specific few it has made up)- and even then, not to their fullest extent. The only “solution” that has been worked out thus far is to have judges make up rights as we go. I was responding to a comment that questioned whether or not there was a better way (and my response was in the vein of pis aller):
And Steve, by your logic, we wouldn’t have any constitutional rights. My point was more: that it is up to the people – we cannot just sit back, delegate and trust the judges to pick and choose rights and to get it right. They’ve already proven incompetent.
Perhaps I’ll be jumped on for the fallacy of bifurcation, but it seems to me we have two alternatives, (1) use the methods we have to lawfully give ourselves and each other rights, or (2) allow the 9 philosopher-kings/queens to dictate our rights to us – then bitch about their inconsistency, illogic, and intellectual dishonesty when they recognize some rights we personally want and others that we personally do not want.
And if someone responds that the Amendment process is dead, then so is the Constitution, and this argument is moot.
June 18, 2010, 1:00 pmNelson Lund says:
Andrew–
I predict that there will be at least 5 votes for incorporation under substantive due process, and nowhere close to 5 votes for protecting the right to keep and bear arms under the Privileges or Immunities Clause.
I’m not so sure that incorporation of double jeopardy, right to counsel, etc. is correctly characterized as an application of so-called procedural due process. That would make their inclusion in the Bill of Rights redundant, which would be somewhat odd, though not impossible.
Jay–
I referred to incorporation “doctrine” and substantive due process “doctrine,” by which I meant to indicate that I was referring to doctrines promulgated by the Supreme Court, without commenting on the correctness of the doctrines as a matter of original meaning.
I agree that the Court ought to write a majority opinion in which it seriously considers the original meaning of the Privileges or Immunities Clause. I doubt the Court will do that, in part because there are so many colorable interpretations of the Clause that can be constructed by selectively quoting the legislative history. That’s why I always thought that Alan Gura’s effort to get Slaughter House overruled was quixotic, though I also agree that it was inappropriate for Scalia to ridicule him at the oral argument.
June 18, 2010, 1:11 pmSuperSkeptic says:
Let me add one more thing, quoting A.W., from the previous thread:
June 18, 2010, 1:14 pmAndrew says:
Incorporation of right to counsel (and the like) was done using procedural due process. With Justice Black, I think that was wrong, and the correct vehicle would have been the P or I Clause.
The Due Process Clause merely requires compliance with the “law of the land” (instead of imposing other procedural or substantive requirements). It’s clear from the structure of the Bill of Rights that Congress in 1789 believed that ratification of the Due Process Clause would have been fully consistent with rejection of the other nine amendments.
June 18, 2010, 6:44 pmAndrew says:
I’ll take this opportunity to blab so
e more, since it’s free…,
The word “process” in the Due Process Clause does not mean “procedure”. It means “course”, as in “due course of law”. We could redefine it to mean “procedure” or “histrionics” or “Internet” or whatever we like, but that would not be the definition used by the people who wrote and adopted the Bill of Eights.
June 18, 2010, 7:14 pmAndrew says:
It sure is difficult to spell correctly using an iPhone. “Bill of Eights” should be “Bill of Rights”.
June 18, 2010, 7:17 pmOrenWithAnE says:
Every four years we have this big shindig we call a Presidential election that decides who will be nominate the next 1-2 Justices. If you chose the one with a ‘D’ next to his name, you get a particular jurisprudence that supports SDP/Roe/Casey/Lawrence and if you chose one with an ‘R’ next to his name, you are 80% to get one that opposes it and 20% to get AMK (who is really neither here nor there).
June 18, 2010, 7:41 pmAndrew says:
OrenWithAnE, if Nelson Lund is right, then the upcoming McDonald decision will show that we get an SDP misinterpretation no matter who we note for.
June 18, 2010, 7:50 pmAndrew says:
note >> vote
June 18, 2010, 7:52 pmOrenWithAnE says:
Replace Kennedy with Bork and we’d be singing a different tune.
The dynamic of SDP now is not so simple because the conservatives on the court, having accepted SDP as decided, will not let the liberal wing selectively write the 2A out of it even if a principled interpretation would mean ruling against McDonald.
IMO, a minority on the court should accept and faithfully apply such doctrine that they disagree with and don’t have 5 votes to overturn. If they have 5 votes, they can throw the whole line of cases out the window, failing that, they ought to treat it as good law.
June 18, 2010, 11:14 pmAndrew says:
If Kennedy is conditioning his vote for incorporation on the acceptance of SDP by the other justices, then I could understand the other justices grudgingly using SDP. But I cannot imagine Kennedy making such a demand, so there is no compelling reason why the conservative justices should use SDP instead of the much more principled route of the P or I Clause.
June 18, 2010, 11:39 pmAndrew says:
And they wouldn’t have to overturn Slaughter-House, which involved no enumerated right, and involved no right that already applied nationwide against the federal government.
June 18, 2010, 11:42 pmGuy says:
Maybe people have a substantive right to the process, or did I just blow your mind?
June 19, 2010, 12:58 amGuy says:
Why should judges create uncertainty in the law just to fix a mostly cosmetic error about what Clause is used? Besides, if the PorI Clause were read in congruence with the P&I Clause, that would mean that Congress has the power to decide what the unenumerated rights of U.S. citizens are, which would dramatically alter our federal structure, the Court had an opportunity to read the clause faithfully in Slaughter-House but I think it’s too late to go back and fundamentally restructure our system of government without popular consent now.
Plus there’s the awkward implication that the Constitution would no longer protect such things as inalienable human rights, endowed by their creator. Instead we’d have special rights for citizens and either we’d have to read the Equal Protection Clause to extend those privileges and immunities to non-citizens or just say that resident aliens et al. are SOL.
June 19, 2010, 1:07 amAndrew says:
Guy, you can’t have it both ways. Either it’s a cosmetic error, or the Constitution would no longer protect whatever five judges deem to be inalienable rights.
In any event, the Court should simply say what the law is, not what it should be, and let the chips fall where they may. The Constitution is amendable, after all.
June 19, 2010, 1:36 amAndrew says:
And Guy, regarding aliens, I think the Court could plausibly use the EP Clause to extend the privileges and immunities of US citizenship to aliens, but only to the extent that the federal government is already restrained from violating the rights of aliens (i.e. some provisions in the Bill of Rights are applicable to citizens rather than aliens).
June 19, 2010, 1:42 amGuy says:
Yeah, I was slightly glib. I get the impression that most people who push for P&I are fine with basic idea (if not always the contours) of SDP except they think it’s using the wrong clause, this kind of change is cosmetic, I also get the feeling some of these people just want to “reboot” SDP in the hope that we’ll go through it’s whole evolution again, only this time they’ll have a hand in shaping which substantive rights get the most protection. The rest of my post is addressing the fact that that reading is not necessarily the most correct reading of the Clause.
June 19, 2010, 1:52 amGuy says:
I’m not sure how you reach that conclusion as a textual matter, but I suppose there’s some potential clever gloss on the Clause out there that could achieve that result.
June 19, 2010, 1:55 amGuy says:
Also, I’m not sure which provisions in the Bill of Rights you refer to. It’s true that the Fourth Amendment, for example, has been held inapplicable to aliens outside the United States, but these sorts of decisions seem to rely on extraterritoriality as much or more than the status of the person. I’m not aware that a provision of the Bill of Rights has ever been held inapplicable to a resident alien, for example.
June 19, 2010, 3:49 amAndrew says:
Some provisions of the Bill of Rights may restrain the federal government with regad to both citizens and non-citizens, and yet do so in different ways, to different degrees. All I meant is that the EP Clause should not be used to equalize those differences once the rights are incorporated for citizens.
June 19, 2010, 1:17 pmDilan Esper says:
Some provisions of the Bill of Rights may restrain the federal government with regad to both citizens and non-citizens, and yet do so in different ways, to different degrees. All I meant is that the EP Clause should not be used to equalize those differences once the rights are incorporated for citizens.
If you are right about this, this is a really important reason why we should NEVER move from SDP to P&I incorporation. As of right now, aliens’ constitutional rights are basically fully protected (except when it comes to specific immigration issues). Since that is actually a very good thing, and moving to P&I might lessen constitutional protections for aliens, let’s keep things the way they are, thanks.
June 19, 2010, 4:50 pmAndrew says:
That’s incorrect, Dilan. Currently, whenever the courts allow the federal government to treat aliens differently from citizens under the Bill of Rights, the courts do likewise for states. I’m not aware of any case that has applied the Bill of Rights differently to the states than it is applied to the federal government, vis a vis aliens.
As far as keeping SDP, I would think it might be slightly relevant that the Constitution was written to forbid it. It was written so that judicial power would be finite rather than infinite. But, hey, whatever.
June 19, 2010, 5:30 pmGuy says:
A good way to forbid SDP would have been to not ratify the 9th Amendment, and say “these are your enumerated rights, and that’s that” and then to repeat that point in the 14th Amendment (maybe with more explicit incorporation or lack thereof as well). I think the Framers considered a judiciary limiting the power of government less dangerous to leave with relatively less restraint than, say, untrammelled executive power.
Part of the reason the Court has always left provisions intact through incorporation is that the text of the Due Process Clause permits complete incorporation, but the problem is P&I does not, so instead we would have to rely on some novel interpretation of Equal Protection to make incorporation complete. Additionally, we would be giving an argument to those who ignore the well-established rule that friendly aliens have most of the same rights as citizens so long as they are subject to our jurisdiction that the Bill of Rights was never intended to apply to such aliens. P&I works as a method to protect special rights of citizenship, such as the right to remain within and travel freely around the country, for example, but I really do think that SDP is the better suited vehicle for fundamental rights that all people enjoy.
June 19, 2010, 5:48 pmAndrew says:
Guy, when the Constitution created a federal government of limited and enumerated powers, that meant that Congress had no power to mess with most of the rights that states secured for their citizens. Those are the unenumerated rights that the Ninth Amendment was designed to protect, and that’s why it’s phrased the way it is; the enumeration of rights cannot be used to deny others, but the enumeration of powers can be used to deny others.
June 20, 2010, 12:32 amGuy says:
That’s somewhat true, except it’s difficult to see how the freedom of speech is any more threatened by that limited power than whatever unenumerated rights might exist. The interpretation you adopt is already expressed by the 10th Amendment, so it’s difficult to see what the 9th Amendment is for. At any rate, when the 14th Amendment was adopted, it placed certain rights (whether they be privileges or immunities or liberty interests) beyond the reach of the states, and within the power of Congress to protect. There’s no clear basis for saying those are limited to the Bill of Rights, since the right to sue, for example, was said to be privilege of citizenship in Dred Scott, the very case the 14th Amendment was intended to address, even though that right is not mentioned in the Bill of Rights.
I also don’t think it’s fair to characterize SDP as giving the judiciary unlimited power since it only operates to protect the rights of citizens by invalidating government action. You could argue that it excessively upsets separation of powers (though I’m skeptical), but I don’t think you can argue it is inconsistent with limited government; it actually furthers limited government. Whatever you might think of SDP, I think it’s clear that Lochner, for example, was not decided by fans of unlimited government.
June 20, 2010, 1:27 amGuy says:
The Ninth Amendment was ratified because some were worried that the list of rights would be construed to be exclusive, not just that the list of rights would cause the federal government’s powers to be construed as being otherwise unlimited.
June 20, 2010, 1:33 amAndrew says:
A standard rule of construction is that when things are listed, the unlisted things are excluded. The Ninth Amendment counteracted that rule of construction, whereas the Tenth Amendment did not.
Regarding the stuff covered by the Privoleges or Immunities Clause, I don’t think it’s strictly limited to the Bill of Rights, but it is limited to stuff that already restrains the federal government, including the Bill of Rights but also other rights in the Constitution like habeas corpus.
As far as SDP giving ghe judiciary unlimited power, it does. SDP allows the courts to look at all the jailed people deprived of their liberty, and order some released, or order all of them released, regardless of the impact on the rest of society.
Lochner was written by judges who favored limitless judicial power to decide what laws are acceptable and shat laws aren’t. It’s an absolute veto over not just new legislation (which would be bad enough) but over every law on the books.
June 20, 2010, 1:46 amAndrew says:
shat >> what
June 20, 2010, 1:48 amGuy says:
Right, so the logical conclusion is that there are unlisted rights entitled to the same protections as the unlisted ones, there are a number of interpretive methods that can help to identify them when they are implicated in particular cases.
I think you are ignoring the internal and external restraints on the judiciary when you call SDP an absolute veto. These restraints include stare decisis, the fact that judges are appointed by the political branches, that the courts’ constitution, number of members, and jurisdiction is controlled by Congress, judicial restraint, internal divisions among judges of different ideologies, and the fact that going overboard can lead to an enormous loss of institutional “respect” capital.
In particular, it’s important to remember that the federal judiciary’s most significant power (and one of the primary reasons the federal judiciary was established) is the ability to bestow legitimacy on the actions of the federal executive and provide for uniform and faithful application, as well as the supremacy, of federal law. It only has as much power as its institutional respect and vital role in our system provides for it, and that is another important limitation on its power.
Furthermore, as far as state laws go (and SDP invalidates state law far more often than federal), it’s likely that the results of Lochner line of cases could easily have been achieved by rigorous and strict application of the Contract Clause, so although I disagree with it’s reasoning and also with the substantive results, it’s difficult for me to say that it achieved a result unintended by the Framers.
June 20, 2010, 2:42 amGuy says:
In particular, the judiciary has neither the power of the sword nor of the purse, it can only decide cases and controversies brought before it, and can only rely on the persuasiveness of its reasoning and respect for the rule of law to have its judgments enforced.
June 20, 2010, 2:55 amGuy says:
The fact of the matter is that the power of the federal judiciary is at its greatest and most dangerous zenith when it approves of the actions of the federal government, because it prevents a state court – or any part of a state government – from invalidating that action, and affirmatively bestows upon the government the authority of lawful action.
June 20, 2010, 3:07 amAndrew says:
Guy, I think it’s fair to say that we fundamentally disagree, and leave it at that. Your view is prevalent and will likely remain so, and people like me will continue to call it disenfranchisement, usurpation, and judicial dictatorship, Thanks for the discussion.
June 20, 2010, 3:26 amOrenWithAnE says:
You may have misunderstood my point.
Kennedy and the liberal wing were going to continue to use SDP in cases like Lawrence irrespective of what happens in McDonald. They have 5 votes for it, it’s good law. Scalia can consistently claim both (1) that if he had 5 votes he’d overturn it and (2) since he doesn’t have 5, he will respect it as binding precedent, which it is.
So Kennedy is not “demanding” anything. The only thing that has happened is that there is a long line of cases that aren’t going anywhere and Scalia acknowledges that basic reality (even, again, while holding on to the position that he thinks they are mistaken and would overturn them if he could).
And a few centuries into that experiment, we found that the States were the primary aggressors against those rights.
June 20, 2010, 8:16 amAndrew says:
Then the remedy is to amend the Constitution rather than rip it to shreds by being dishonest with ourselves about what it means.
June 20, 2010, 11:26 amOrenWithAnE says:
You have it backwards — it was the States that ripped the Constitution to shreds when they imposed de jure segregation, maintained absurdly disparate districts of their legislatures, restricted the free expression of controversial ideas, imposed loyalty oaths on their employees, abridged the rights of the citizens to bear arms, violated the security of their persons and property, ran roughshod over the rights of suspects in criminal trials, criminalized consensual sexual conduct by adults in their own homes …
The only dishonesty I see is the oft-repeated ahistorical pablum that the biggest threat to our liberty comes from Washington DC, instead of the Statehouse. Not that DC is innocent, of course, but the record is what it is.
June 20, 2010, 3:07 pmAndrew says:
Of course de jure segregation violated the Equal Protection Clause. I never suggested otherwise. I fail to see how that fact justifies a whole bunch of fictional constitutional requirements under completely different clauses, namely the Ninth Amendment and the Due Process Clause.
I am tired of the pablum that Brown v. Board of Educarion proves that SCOTUS should be our lord and master in all matters that people car e most about, and to hell with the nonfictional Constitution. That philosophy is currently prevalent, and I believe it is well on its way to destroying this country, if not the world.
June 20, 2010, 3:53 pmOrenWithAnE says:
And I never suggested that we appoint the SCOTUS as “lord and masters”. I want them only to accord us the due protection of our right from the State government that have engaged in a long and systematic train of abuses.
I regret listing de jure segregation among the crimes of the States, not because it is not preeminent among their many abuses (and among the most heinous) but because it gives the incorrect impression that it is all I’m talking about. The abuses of the various States transcend racial, religious (Pierce v. Society of Sister, WI v. Yoder), and ethnic lines (Meyer v. Nebraska) to the very heart of our basic right as citizens of a free country to be let alone in peace.
June 20, 2010, 5:22 pmGuy says:
Actually, I think the RKBA is one of the best examples of something that ought to be incorporated under SDP rather than PorI. Life, liberty, and property can only be taken by “due process of law” because that is a traditional punishment for crimes. RKBA has historically been denied to convicted felons, so a denial of the right is a traditionally punitive act, and not something that can be arbitrarily denied to anyone. I think it’s entirely plausible that it was thought to be a “libery” even under some of the more narrow interpretations of the Due Process Clause.
I realize this still relies on “procedural” due process, but it’s a relatively narrow interpretation compared to some other instances of SDP.
June 20, 2010, 5:37 pmGuy says:
And I still don’t understand why rooting the discussion in PorI will somehow tie down judges more than SDP, in either case you’re dealing with protection of rights that are not spelled out in the text of the Amendment. And some believe that the 14th Amendment is precisely the remedy you refer to above.
June 20, 2010, 5:39 pmAndrew says:
Guy, no reasonable person could read the phrase “privileges or immunities of citizens of the United States” and think it refers to rights that Congress is constitutionally allowed to infringe. Thus, the P or I Clause does not cover rights that Congress can infringe upon. If you want to use the P or I Clause against ghe states, then you can only do so if you can find so ething in the Constiyution that correspondingly limits the federal government. That is why Slaughter House was correctly decided: nothing n the Constititutoon prevents the federal government from setting up a butcher monopoly in Washibgton DC. Got it? That’s how the PorI Clause would tie down judges. In contrast, if judges want to twist the Due Process Clause to say that it guarantees a right to be free of monopolies, then there is no impediment, if you accept the completely bogus doctrine of SDP.
June 20, 2010, 5:58 pmAndrew H says:
I had some spelling difficulties due to my iPhone, but am now on a big-screen computer….
Guy, no reasonable person could read the phrase “privileges or immunities of citizens of the United States” and think it refers to rights that Congress is constitutionally allowed to infringe. Thus, the P or I Clause does not cover rights that Congress can infringe upon. If you want to use the P or I Clause against the states, then you can only do so if you can find something in the Constitution that correspondingly limits the federal government. That is why Slaughter House was correctly decided: nothing in the Constitution prevents the federal government from setting up a butcher monopoly in Washington DC. Got it? That’s how the PorI Clause would tie down judges. In contrast, if judges want to twist the Due Process Clause to say that it guarantees a right to be free of monopolies, then there is no impediment, if you accept the completely bogus doctrine of SDP.
OranWithAnE, it is likely that Pierce v. Society of Sister could have been decided on First Amendment grounds. Two justices dissented in Meyer v. Nebraska (see companion case of Bartels v. Iowa), and I’m not sure that case could have been decided on other grounds. And I’m not even sure who was right on policy grounds. Telling educators not to teach kids foreign languages until they learn English does not seem inherently unreasonable to me. But even if it’s a horrible idea, convince your state legislature, or get a constitutional amendment passed. Don’t get judges to do all your political work.
June 20, 2010, 6:09 pmGuy says:
Except, as I noted before, the Privileges and Immunities Clause has been interpreted only to generally protect those rights which the state governments chose to protect, so the clause can be reasonably read to allow Congress to define those Privileges and Immunities and impose them on the states.
But even if we read the Clause to be an absolute protection of certain rights, your reading is slightly question begging, as it assumes the 9th Amendment has no content in Washington D.C. The right to travel is not explicitly spelled out anywhere in the Constitution, but it was protected by the Articles of Confederation, and it’s inconceivable that the Framers did not intend for it to exist under the Constitution, it’s usually considered protected by the P&I Clause today, and so would presumably be covered by the PorI Clause as well, and possibly protected from Federal interference. It may have been considered a background right so fundamental that it did not need to be spelled out, much like the concept of how certain departments of the government have “inherent” powers which are so fundamental to their nature that it would be unnecessary and redundant for the Constitution to write them in explicitly.
Another concern I have with your approach is that it is unclear what would prevent Congress from segregating schools in Washington D.C. Do you believe that would be Constitutional?
June 20, 2010, 6:45 pmAndrew says:
Guy, you’re getting the Privileges or Immunities Clause mixed up with the Priveleges and Immunities Clause. They have some similar wording, but also some deliberately different wording. For example, the P and I Clause implies a right to travel: it says you are entitled to privileges on any state, which obviously means you can go to any state in order to enjoy the privileges there.
As for the 9th Amendment, you read it to say that neither the enumeration of rights nor the enumeration of powers can be construed to deny unenumerated rights. In actual fact, that amendment does not say anything about how the enumeration of powers is to be construed. In Wasongton DC, federal power is plenary, so the Ninth Amendment does not do anything for DC citizens.
June 20, 2010, 6:58 pmGuy says:
I’m not mixing them up, I’m using the P&I Clause as a model for interpreting the PorI Clause (which is what the Framers of the Amendment likely intended). The usual rule is that the P&I Clause protects rights which (1) are fundamental, and (2) are protected by the state in question. So the PorI Clause can most reasonably be read in one of four ways: (1) How Slaughter-House read it, (2) it protects rights which (a) are fundamental and (b) are defined as civil rights by Congress (and by the Constitution), (3) It only protects fundamental rights enumerated by the Constitution, or (4) It protects all fundamental rights, without exception. I don’t think (4) is as out of the question as you suggest, though if you want my opinion (2) is the most likely intended reading, the problem is that it’s too late to go back to (2) now, because its rejection has been ratified by the passage of time without a corrective Amendment, and the people who wanted reading (2) are now long dead. The advantage of (4) is that it achieves much the same results as (2) while being more respectful of federalism. This is because the judiciary is inherently conservative (in the sense of changing slowly) and generally won’t go out of its way to invent or redefine rights with no basis in careful reason and logic from first principles.
June 20, 2010, 7:11 pmGuy says:
Also, I’m still curious to know if you think segregated schools in Washington D.C. is Constitutional.
As for the existence of unenumerated rights in D.C. I don’t think the grant of plenary power of Congress over it can fairly be read to foreclose the possibility of unenumerated rights, it merely means that it has a general police power analogous the that of a state government, with whatever limitations may exist on that power, It certainly doesn’t foreclose the limitations imposed by enumerated rights.
June 20, 2010, 7:15 pmGuy says:
Reading (4) also places a check on Congress by allowing the judiciary to prevent Congress from using its power under Section 5 of the 14th Amendment as a general police power, which is a likely result of reading (2) since the judiciary’s deference on what constitutes a fundamental right would be committed to Congress, rather than to the states, leading to a much more lenient definition.
June 20, 2010, 7:21 pmOrenWithAnE says:
But the entire point of this American enterprise was to create a government to secure our liberty, not to have to beg the legislature not to violate them every time they come up with another cockamamie regulation of matters outside their competence.
The State governments were, are, and continue to be the largest threats to that liberty. The history is right there – it boggles the mind that in 1964 Lenny Bruce was arrested for a comedy routine. Literally — he was arrested for making dirty jokes. That wasn’t so long ago!
Again, it’s not just about Lenny Bruce or Meyer, Pierce, Brown, Mapp, Miranda, Lawrence, Skinner, Loving, Reynolds, Tinker, Wesberry, Memoirs, and the very long list of such distinct violations. It is about a pattern of continued and deliberate violations of our rights. The States have demonstrated clearly that they are not to be trusted under any circumstances to protect the liberty of their citizens.
[ I would have hoped, on purely theoretical grounds, that this were not the case. I have no philosophical objection to Federalism. I will not, however, overlook nearly a century of unconscionable violations. ]
June 20, 2010, 7:22 pmAndrew says:
No, the framers of the 14th Amendment did not want to mimic the P and I Clause. The framers of the 14th initially drafted language almost identical to the P and I Clause. Then they deliberately changed it.
Re. segregated schools on DC was unconstitutional because it was done without explicit congressional authorization. In other words, Congress sought to delegate that decision to the local government, and it violated the nondelegation principle.
But inevitably democratically elected governments will err. I don’t think that is a valid reason to give an absolute veto to the judiciary over all laws. The destruction of a valuable law can be just as horrendous as the creation of an awful law.
June 20, 2010, 7:25 pmAndrew says:
“Re. segregated schools on DC” >> “Segregated schools in DC”
June 20, 2010, 7:29 pmAndrew says:
OrenWithAnE, the judiciary has also done wrong. But that’s not the point—the point is comlyomg with the allocation of power in the Constitution. If a state wants to give their state Supreme Court am absolute veto over all new laws and all old laws, then fine. Such power has never been given to SCOTUS regarding federal law, much less state law, so I emphatically oppose SDP by which SCOTUS bestows that power on itself.
“Liberty” is a vague word. Every prisoner on every jail has been deprived of liberty, so shall we set all of them free? Oliver Ellsworth helped frame the Constitition and the Bill of Rights, and became the 2d Chief Justice. He once wrote (on November 19, 1787): “Liberty is a word which, according as it is used, comprehends the most good and the most evil of any in the world.”. The founders of this country were not so naive as to view liberty as a purely positive thing, nor so stupid as to allow 5 judges-for-life the unaccountable power to promote their own concepts of liberty.
June 20, 2010, 7:44 pmGuy says:
So I take it you, unlike Scalia, think that legislative history can be useful?
I don’t think the drafting history is completely irrelevant, but the end result still basically tracks the language of the P&I Clause. Are you referring to the draft that read “The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each state all privileges and immunities of citizens in the several states”? It seems to me that the result adopted: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” carries the same semantic meaning, the only real difference is that it says “citizens of the United States” rather than “citizens in the several states”. This is hardly an affirmative rejection of reading (2), if we reject Slaughter-House and say that the citizenship in the United States is essentially an identical institution to citizenship in a state as far as civil rights go. And if you do not adopt that reading, it’s unclear why the Bill of Rights should be read as privileges and immunities of U.S. citizens rather than restrictions preventing the feds from interfering with the privileges and immunities of citizens of the states, which is the tack taken by Cruikshank.
So your position is that it would have been Constitutional if mandated by Congress directly? Also, do you think that the entire system of local government for D.C. is unconstitutional, or only because segregation is a “significant” policy, that can’t be read as an implementation of Congressional law, while others might be?
Which is why I think the judiciary must be very careful with SDP, I think its current form is fairly unobjectionable. I really don’t think it’s a completely off-the-wall interpretation, the various provisions of the 14th Amendment are naturally read as somewhat overlapping, and it doesn’t seem to have been abused much. I still maintain that Lochner could have been achieved by revitalizing the Contract Clause, so I’m not sure SDP can take all the blame for that just because it happened to be the vehicle the Court chose. At best, SDP gave the Court a way to bypass precedent, not Constitutional text, in interpreting what the Constitution requires, which is a result switching to PorI from SDP would also create.
June 20, 2010, 8:09 pmGuy says:
Actually the most significant difference is the imposition of a requirement for state action, but SDP preserves that requirement.
June 20, 2010, 8:53 pmAndrew says:
Do I think that segregated schools in DC would have been constitutional if they had been directly mandated by Congress?
Do you think that striking down anti-infanticide statutes would be constitutional if directlly done by SCOTUS using SDP?
Yes to the first, and no to the second, in my opinion. When courts are skeptical about a local DC ordinance, it seems like courts have discretion whether to insist on explicit congressional approval; they don’t have to exercise that discretion except in very extreme cases.
As for legislative history, no I don’t especially care for it, but I thought you might. If you’re seriously suggesting that the phrase “privileges or immunities of citizens of the United States” includes rights that the federal government can violate, then I don’t believe your grasp of plain English is adequate; this phrase appears nowhere else in the Constitution so I see no justification for using any other part of the Constitution as an identical twin.
You say that SDP does not bypass constitutional text. That’s clearly wrong, and I reach that conclusion based not just on the well-known equivalence of “due process” with “law of the land” under centuries of British law, but also based on the plain structure of the Bill of Rights as a set of separate simultaneous amendments; Congress in 1789 obviously believed that adoption of due process was consisten with rejection of free speech and the enumerated rights in the other amendments.
June 20, 2010, 10:19 pmDilan Esper says:
That’s incorrect, Dilan. Currently, whenever the courts allow the federal government to treat aliens differently from citizens under the Bill of Rights, the courts do likewise for states.
Nope. In general, aliens only get treated differently with respect to immigration issues, and those are federal issues and are justified under Mathews v. Diaz and some special needs search doctrines.
June 20, 2010, 10:29 pmGuy says:
Considering that the phrase “Privileges and Immunities of Citizens in the several States.” has been construed to include rights that states can abolish across the board, I don’t think my reading shows illiteracy on my part, the grammatical structure of PorI closely tracks that of P&I and I don’t think it is realistic to think that the privileges and immunities of U.S. Citizens were conceived of by the framers of the amendment as being substantially different in kind from the privileges and immunities of the members of any other polity. It’s not an accident the two clauses are written with similar language.
I said that Lochner didn’t need to bypass Constitutional text, it had the Contract Clause right in front of it, the Court just wanted a way to get away from the jurisprudence that had limited that Clause’s scope.
The Constitution is primarily a structural document, it says how the government is constituted, hence the name, the scope of substantive protections are less important than who gets to apply them. I don’t think any incorrect decision of the Court is automatically “unconstitutional”, since the Constitution explicitly says that the judicial power of the United States extends to all cases and controversies arising under the Constitution, it is within the scope of authority of the Court to interpret that document. I don’t think it is entirely inconceivable that the word “liberty” is sufficiently vague to merit explicit fleshing out in other provisions of law. That the Amendments were proposed separately is also not conclusive, especially in light of the Ninth Amendment, which says you can’t find an absence of a right just because some rights were enumerated. The Due Process Clause itself, at least as you interpret it, is entirely redundant as the basic principle (even more so than the right to travel) is too fundamental to require mentioning. Had the Fifth Amendment been rejected, would that have authorized the President to act unlawfully? Would the Suspension Clause have existed to protect a mechanism designed to safeguard a nonexistent right to liberty? And if the principle of the Due Process Clause would have bound the government in its absence, isn’t it possible the other amendments would have too?
June 20, 2010, 10:51 pmGuy says:
That the government cannot deprive a person of the freedom of speech because it is a “liberty” protected by the Clause may be a slim purchase, but it does not exceed the Court’s Constitutional authority to use it, and I don’t believe the result is contrary to the intent of the framers of the 14th Amendment.
June 20, 2010, 11:08 pmAndrew says:
Dilan, for Bill of Rights purposes, I’m fairly certain that there are differences in coverage for citizens as compared to illegal aliens under current doctrine, and that these differences in coverage are the same for the Feds as for the states. All I meant was that it could be problematic to use the EP Clause to equalize all those differences.
June 20, 2010, 11:18 pmOrenWithAnE says:
Uh, we must inquire into the process by which the State has jailed the prisoner and see if it comports with the procedural and substantive guarantees required of it.
No, they did not. They were inserted as a matter of caution, since they believed that the Federal government was so structurally sound as to lack the power to violate those rights in the first instance (a woefully bad judgment, if there ever was one).
That is, the BoR was conceived as forbidding things that were already impossible (“Why declare that things shall not be done which there is no power to do?”) and the Ninth was conceived as ensuring that the enumeration of certain rights did not throw the great residuum of the people’s rights into the hands of the government.
June 21, 2010, 6:54 amAndrew says:
No, it is silly to quote an opponent of adopting the Bill of Rights (Hamilton) explain why supporters adopted it. Madison countered Hamilton’s argument on the House floor, explaining that the BofR was necessary because otherwise Congress could violate these rights by choosing lousy means to implement it’s enumerated powers. Madison explained that it would be the job of Congress to determine what was okay under the necessary and proper clause, and might screw up, hence the need for the specific prohibitions in the Bill of Rights.
But all of that is history. It pales in comparison to the plain language of the Bill of Rights. Congress specifically and obviously divided the free speech right and the due process right into separate simultaneous amendments, allowing the states to approve the second but reject the first. It therefore could not be more clear that they did not view the second as incorporating the first.
June 21, 2010, 11:04 amAndrew says:
By the way, the term “great residuum” that you use is from this line of Madison’s on the House floor, where he is describing some arguments
against the BofR:
“The Constitution is a bill of powers, the great residuum being the rights of the people.”
Madison ackowledged that there is some truth to this. In other words, in places like DC where Congress has plenary power instead of enumerated powers, there is no residuum. So, there is nothing for the 9th Amendment to protect in DC (and in 1789 the vast federal territories).
June 21, 2010, 11:16 amOrenWithAnE says:
My point is that the pre-BoR was considered (incorrectly, as it turns out) to protect the rights enumerated in the first eight amendments by virtue of its structure. That was Hamilton’s point — that there was no need to explicitly protect i.a. free speech because it was already protected even without the first amendment.
So your statement:
is historically incorrect. The Constitution as of 1789 protected both free speech and due process, the latter an enumerated right and the former an unenumerated right that was still beyond the power of the government to disturb.
The 1A was added not, as you assert, because the C1789 did not protect it but because Madison (et al) felt it would be better if it protected it explicitly rather than implicitly. Hence the 9A, to ensure that the great residuum of rights of which free speech was part, would not be disturbed by the enumeration of a few rights that, even prior to the BoR, were inviolate.
Again, both were protected before and both would have remained protected after irrespective of which were enumerated and which remained unenumerated. Note the draft 9A:
Hence reverse incorporation, in which restrictions on the Fed made applicable to the States are back-ported to the Feds.
June 21, 2010, 12:04 pmDilan Esper says:
Dilan, for Bill of Rights purposes, I’m fairly certain that there are differences in coverage for citizens as compared to illegal aliens under current doctrine, and that these differences in coverage are the same for the Feds as for the states.
You are completely wrong. Illegal immigrants have full constitutional rights. There are special needs searches at the border that only the federal government can do (because immigration enforcement is reserved for the federal government in Article I of the Constitution), but even those searches, even though they are looking for illegal immigrants and contraband, are constitutional even when performed on citizens. And deportation proceedings themselves, while subject to the Due Process Clause, are treated as quasi-civil and thus do not carry with them the standard rights of criminal procedure.
But illegal immigrants have: (1) full rights to speak, petition the government, assemble, and practice religion, (2) full rights against soldiers quartered in their home during peacetime, (3) full rights against unreasonable searches and seizures by the government (subject only to the special needs doctrine as stated above), (4) full rights to due process of law, against takings without just compensation, and against self-incrimination, (5) full rights to jury trials, to counsel in criminal proceedings, and to grand jury indictment, (6) full rights to jury trials in civil common law cases, and (7) full rights against cruel and unusual punishment, excessive bail, and excessive fines. We don’t know yet about the right to keep and bear arms.
This is current law, and it is correct. If a change to the P&I clause strips illegal immigrants of constitutional rights, it is an extremely bad idea.
June 21, 2010, 2:41 pmAndrew says:
Dilan, thanks, I’ll look into the rights of illegal aliens a bit further. I know that they have no right to vote, but I’m sure they have many other constitutional rights, as they should. In any event, I believe that a proper interpretation of the Constitution would hold that every constitutional right of an illegal alien that is enforceable against the federal government is also enforceable against the states, by virtue of the PorI Clause in combination with the EP Clause.
OrenWithAnE, you’re dimly mistaken that Madison believed free speech and ghe other enumerated rights were already protected by the Constitution in 1788. When Madison introdced the BofR in Congress, he gave the specific example of general warrants, which later were forbidden by adoption of the Fourth Amendment. Madison: “If there was reason for restraining the state governments from exercisng this power, there is like reason for restraining the federal government.”. Madison emphatically did not believe that the federal government was already restrained. But even if Madison was mistaken, and the federal government was already restrained from using general warrants throughout most of the country by the Necessary and Proper Clause, it is doubly certain that Madison did not think the federal government was already restrained from using general warrants where federal power is plenary (DC and federal territories).
June 21, 2010, 11:04 pmAndrew says:
Sorry, I honestly don’t know how the word “dimly” got in there. Please strike.
June 21, 2010, 11:07 pmMore on Property Rights (Plus Privileges, Immunities, Due Process) | Austrian Economics Blog says:
[...] Yesterday I blogged about the Florida property rights case, which I now consider the best unanimous opinion against my position I could ever imagine. Although the property owners lost, four justices stood for the idea that courts no less than legislatures or executive bodies are capable of violating the Takings Clause (Fifth Amendment), while two others endorsed remedying such violations via Substantive Due Process (Fourteenth Amendment), and the remaining two didn’t express an opinion one way or the other. For more on the case, see the blogposts of Cato adjunct scholars Tim Sandefur, Ilya Somin, and David Bernstein. [...]
June 22, 2010, 1:02 amOrenWithAnE says:
Well, there are two separate matters. He didn’t believe they were adequately protected as a matter of legal structure (unlike Hamilton) but he did still identified them (i.a.) as part of the ‘great residuum’ of rights retained by the people.
That much I don’t dispute. But plenary Federal power (as opposed to dual sovereignty) was never meant to be the normal situation and, at any rate, never encompassed any significant fraction of the population even if it included most of the land area.
June 22, 2010, 8:49 amAndrew says:
You’ve got to look at the term “great residuum” in context: “The Constitution is a bill of powers, the great residuum being the rights of the people.”
Madison explained that general warrants could be used pursuant to the enumerated power to collect revenue, and so he did not view Fourth Amendment rights as part of the “great residuum” protected by the original Constitution.
June 22, 2010, 1:40 pm