Attorney Ryan Williams recently published an article in the Yale Law Journal called “The One and Only Substantive Due Process Clause.” It’s pathbreaking.
Essentially, Williams argues that in 1791, when the Fifth Amendment’s Due Process Clause was enacted, “due process of law” had only a procedural meaning, and only guaranteed proper judicial procedures. By 1868, however, when the Fourteenth Amendment’s Due Process Clause was enacted it was widely accepted that “due process of law” also had a substantive meaning, and prohibited certain types of legislation.
That, in itself, is not entirely new. Indeed, based on my own reading of the previously existing sources, it’s more or less what I say in Chapter 1 of Rehabilitating Lochner. What’s new is the depth of the research Williams has undertaken. Previously, attention had focused mainly on a few major state court cases, along with Dred Scott v. Sandford. Williams goes well beyond the usual suspects, which allows him to conclude that by 1868, “a recognizable form of substantive due process had been embraced by courts in at least twenty of the thirty-seven then-existing states as well as by the United States Supreme Court and the authors of the leading treatises on constitutional law.” (Few state courts, meanwhile, had rejected “substantive due process”, as opposed to simply not ruling on the issue one way or another).
Williams’s article poses a challenge to the minority of scholars who argue that the original meaning of the Fifth Amendment’s Due Process Clause was “substantive,” and even more so to the much larger group of scholars who claim that the substantive interpretation of the Fourteenth Amendment’s Due Process Clause was simply invented by activist judges in the Gilded age and “Lochner era.” Indeed, Williams’s research suggests that a sincere originalist may be required to accept a substantive interpretation of component to “due process of law.”
Aside: Kudos to the Yale Law Journal, which I’ve noticed has published some very interesting scholarship this year which has not emanating from the standard sources, i.e., well-known law professors at top 15 or so schools.
epluribus says:
Shows that it is possible to be a scholar while not at the same time an academic.
March 23, 2011, 7:54 pmardent says:
I understand the Yale Law Journal reads things blind. Not sure how many other law reviews do that.
March 23, 2011, 8:08 pmFormer YLJ AE says:
Terrific article, and following in the YLJ tradition of picking up stellar articles from non-household names that get overlooked by other top law reviews.
March 23, 2011, 8:38 pmPeter says:
The fact that courts began expanding the meaning of dp clauses before the Civil War has been well known at least since Edwin S. Corwin wrote those articles on pre-1861 interps of the dp c1auses in state constitutions in the Michigan Law Review and the Harvard Law Review around W.W.I. That fact does not add any legitimacy to the doctrine of subst due process because, as Ryan acknowledges, the clause was originally understood as a procedural limitation only and its expansion to subst matters was a strictly judicial phenomena. it is ok for cts to modify the common law; it is not ok for them to modify const provisions to expand their own powers.
March 23, 2011, 8:44 pmJoe says:
Some have argued that substantive due process existed in some form from the beginning, reflected by Justice Chase’s opinion in Calder v. Bull and other cases. A search does not show that article discussed or BANK OF COLUMBIA V. OKELY, a later case (1819) that references due process of law:
As to the words from Magna Charta, incorporated into the Constitution of Maryland after volumes spoken and written with a view to their exposition, the good sense of mankind has at length settled down to this: that they were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice.
But, I will read the article in full, and appreciate the citation.
[Contra Peter, the scholars who pushed for the SDP argument repeatedly cite general principles not reliant merely on judicial activism, judges not merely creating things from whole cloth but repeatedly inspired by principles arising outside the courts.]
March 23, 2011, 8:46 pmDavid Bernstein says:
It’s not a “judicial invention” if that’s the way DP was understood in 1868, when the 14th Amendment was enacted. If that was the accepted meaning of DP, and the Framers then used that language, than from an originalist point of view this judicial interpretation became part of the Constitution via the Amendment process.
March 23, 2011, 9:01 pmSteve says:
But the Constitution was in fact amended, in 1868, incorporating the understanding of due process in existence at that time. That’s the point.
March 23, 2011, 9:01 pmJoe says:
The argument that “due process” by the time of the 14A had a more expansive meaning and it was so understood when that amendment was ratified answers Peter in part; it is also true that even without the 14A, substantive due process was not merely something the courts thought up. See, e.g., Prof. Bernstein’s citation of Salmon Chase in this thread:
http://volokh.com/2010/10/13/the-first-u-s-supreme-court-case/
March 23, 2011, 9:01 pmRob Natelson says:
I can’t speak to developments during the 19th century, but as one who has been over and over the Founding Era record for many years, I agree that DP was only procedural in 1791. One bit of evidence Williams missed was the June 18, 1776 resolution of the Continental Congress reflecting its understanding of the DP/Law of the Land rule, declaring that no one “be injured in his person, or property, or in any manner whatever disturbed, unless the proceeding against him be founded on an order of this Congress, or the Association, convention, council or committee of safety of the colony. . . .”
Founding Era cases occasionally cited as suggesting a substantive component to DP actually say nothing about due process as such; they either are applications of Magna Carta as supreme law of the British Empire before Independence, gratuitous statements of natural law (e.g., Chase’s contradicted post-ratification dicta), or applications of the “equitable construction” doctrine whereby documents shown by clear and convincing evidence to vary from the makers’ underlying intent could be reformed to comply with that intent. See my discussion in The Original Constitution, pp. 162-64 (which also admits the possibility of a 19th century change of meaning).
March 23, 2011, 9:10 pmOrder of the Coif says:
And vice versa. It is heresy but accurate to note that numerous publications is not a reliable indica of scholarship (i.e., deep and original thought).
March 23, 2011, 9:18 pmPeter says:
That dp clauses included a subst component was not the prevailing view in 1868. This is indicated by the fact that even Williams’ study indicates that judges in only slightly more than half the states had issued rulings that could be cast as embracing subst dp. In addition, the few opinions in which subst dp was embraced were harshly criticized by other judges around the country–as Corwin documents. Also, the embrace of subst dp in dred scott was widely condemned for the very reason that the dp clause was not viewed as a limitation on the ability of Congress to regulate the use of property. What you all seem to view as acquiescence is the fact that sts did not immediately amend their constitutions to explicitly deprive judges of the power to use dp clauses to invalidate st laws. Inaction in the face of usurpation does not constitute consent. That states do not amend their constitutions in response to every judicial usurpation does not mean they approved of the usurpation.
March 23, 2011, 9:42 pmMike P. says:
Even if we grant this, it would not pose a problem for the typical originalist critique of post-WWII jurisprudence, I think. Most of the cases where originalists believe substantive due process has been frivolously invoked or otherwise used (e.g. Roe) are still departures from any understanding of the ‘substance’ that would have existed at the time. Nobody in 1868 believed that the 14th Amendment required that states must permit abortion in a trimester framework. Even if originalists (think Justice Scalia) acknowledged some substance there, it would not be anything like the substance that judges today are eager to find.
March 23, 2011, 9:42 pmJoe says:
Also, the embrace of subst dp in dred scott was widely condemned for the very reason that the dp clause was not viewed as a limitation on the ability of Congress to regulate the use of property.
Others, including some particularly influential in the crafting of the 14A, thought that the liberty component of the DPC protected blacks from being kept as slaves in the territories. The fact that the matter was so accepted that more than 1/2 of the judges felt strong enough about it to justify overriding legislation (even if others “harshly” criticized them) is telling by itself.
Most of the cases where originalists believe substantive due process has been frivolously invoked or otherwise used (e.g. Roe) are still departures from any understanding of the ‘substance’ that would have existed at the time.
As with segregation, a neutral application of the principles very well might result in abortion being protected, particularly given that part of the reason they would think that was because of “natural” beliefs as to the role of women (now outdated, especially after the 19A) while accepting that choices involving family life in various cases “without a doubt” (see Meyer v. Nebraska) as well as involving personal health would be covered in other ways.
[Thus, Randy Barnett supports a form of the argument in support of a ruling like Lawrence v. Texas, even if at the time sodomy was not readily accepted as a protected liberty.]
March 23, 2011, 9:54 pmPeter says:
Even Williams doesnt claim that 20 of 37 states had adopted subst due process; he merely states that one court or another in 20 states had adopted it. The highest court in NY did so on the eve of the Civil War and the decision was roundly criticized in other states–it was not followed during the period between that decision and 1868. That would seem to indicates cts in other states were invited to embrace subst dp and that they declined the invitation.
March 23, 2011, 9:56 pmRob Natelson says:
One other point: The DP clause in 1791 was “procedural” in that it was principally an anti-retroactivity provision—i.e., it required the government when proceeding against a person, either criminally or civilly, to follow pre-existing rules rather than making up rules as it went along. The DPC was not “procedural” in the sense that it required specific procedures such as jury trial or representation by counsel, unless solely for the reason that those procedures were pre-established. (That’s why such protections were listed separately in the Bill of Rights rather than left to “due process.”)
March 23, 2011, 10:05 pmThus, those claiming a change of meaning in the 19th century must go beyond those 19th century cases that merely held that DP was violated by laws stripping people of vested property or contract rights. Such cases (whether or not correctly decided) are essentially anti-retroactivity rulings, broadly consistent with the Founding-Era view. One claiming a change of meaning must point to an understanding that DP also barred certain categories of wholly prospective changes.
Nick says:
Of course, that’d only be good against the states under the 14th, provided you’re taking an originalist view. This would leave federal regulation of labor, health care, and all sorts of other areas unrestrained (presuming the validity of modern commerce clause jurisprudence).
March 24, 2011, 12:00 amRyan C. Williams says:
Professor Bernstein,
Thank you so much for the kind words (and for the publicity). And I fully reiterate your sentiments with regard to the Yale Law Journal and its staff, who not only took a chance on a “nonstandard” author but also deserve a big portion of the credit for the article’s quality (for those who didn’t think much of the article, trust me, it would have been worse without their input).
Professor Natelson, I think the “vested rights” cases present the most difficult classification challenge in terms of the substance/procedure dichotomoy(which was not explicitly recognized until the 20th century). In the article, I classify these cases as “substantive” and think that is consistent with how must other authors have approached the issue. I think part of the difficulty is that virtually any “procedural” right (i.e., a right relating to the conduct of judicial proceedings) could be deployed against retroactive laws on the theory that retroactive legislation would render the right nugatory. After all, what is the point of protecting the right to a trial or hearing if the legislature could simply change the law after the fact? In this respect, I don’t think “due process” or “law of the land” is that different from a jury trial right but we do not usually think of a “substantive jury trial right.” The key question is whether the connection between the due process/law of the land phraseology and the anti-retroactivity principle was firmly established at the time of the Fifth Amendment’s ratification in 1791. Although such a connection may have been made by a few individuals (including, arguably Alexander Hamilton in a speech that I discuss in the article), it is not clear to me that the connection was firmly established at the time of the Fifth Amendment’s enactment. One contrary indication is the multiple late eighteenth century and early nineteenth century cases applying the “vested rights” principle without mentioning an available law of the land or due process provision. The first cases I’ve found that draw a connection between the “vested rights” principle and the language of the law of the land provision date from the early decade of the nineteenth century and even those were not immediately influential. It was only in the middle decades of the nineteenth century (beginning aound the late 1830′s) that this connection appears to have become widely established.
RCW
March 24, 2011, 12:01 amAndrew says:
I’ll associate myself with the wise remarks above from “Peter” and from Rob Natelson.
Ryan Williams’ thesis is interesting, and dare I hope it will end the use of SDP against Congress? But Williams’ thesis also has problems, most notoriously the bait and switch problem. This language of the14th Amendment’s DP clause was selected to give people the idea that it would mean what the same prestigious words already meant in the Constitution. Williams merely proves that a few obscure judges had begun the switch before the baiting maneuver occurred in 1866-1868. The rest of the switch has been going on ever since, and its end is not in sight.
March 24, 2011, 12:07 amSteve says:
Sounds like a lot of people had a problem with SDP because they thought activist judges might invoke the doctrine to prohibit slaveholding. That’s obviously an inoperative excuse after the 14A.
March 24, 2011, 12:22 amOrenWithAnE says:
Of course, there is always the Brandeis/Scalia view: “Despite arguments to the contrary which had seemed to me persuasive, it is settled that the due process clause of the Fourteenth Amendment applies to matters of substantive law as well as to matters of procedure.” That has a certain nice ring to it.
March 24, 2011, 12:24 amAndrew says:
OrenWithAnE, that’s certainly not Scalia’s view.
And if it was the view of Brandeis, then maybe he would agree with this: “Despite arguments to the contrary which had seemed to me persuasive, it is settled that the Constitution means whatever SCOTUS says it means.”
March 24, 2011, 12:30 amPatty Shundynide says:
Ryan Williams has published some good shit before. His The Ninth Amendment as a Rule of Construction was also a great read.
March 24, 2011, 2:12 amPeter says:
I note that the article doesnt say a word about the public’s understanding of the meaning of the 14th amendment during the ratification debate of 1866-68; nor does it say a word about the understanding of the dp clause revealed in the state ratifying conventions. Even the comments offered by bingham in congress re the meaning of the clause are cryptic. The most that can said is that subst dp in 1868 was a new trend evident in some st ct opinions and the validity of the doctrine was hotly disputed. A far, far cry from est that the country recognized dp as necessarily having a subst component in 1868.
March 24, 2011, 7:47 amStephen Lathrop says:
It would help this legal layman understand the debate better if someone could clarify what exactly a freed slave would be entitled to claim under substantive due process, and show where and how the nation mobilized to be sure that was provided after passage of the 14th.
March 24, 2011, 9:26 amMark Field says:
Citation?
March 24, 2011, 10:47 amCJColucci says:
So the 14th amendment ratified an unoriginalist but developing idea of substantive due process, making further such developments originalist, but only if they would have been approved in 1868.
March 24, 2011, 11:39 amAndrew says:
For starters….
Malinski v. New York, 324 U.S. 401, 415 (1945) (“To suppose that ‘due process of law’ meant one thing in the Fifth Amendment and another in the Fourteenth is too frivolous to require elaborate rejection” (Frankfurter, J., concurring in part)); Carroll v. Greenwich Ins. Co., 199 U.S. 401, 410 (1905) (same); French v. Barber Asphalt Paving Co., 181 U.S. 324, 329 (1901) (assuming “that the legal import of the phrase ‘due process of law’ is the same in both Amendments” although different constructions may be proper); Hurtado v. California, 110 U.S. 516, 535, 541 (1884) (“when the same phrase was employed… it was used in the same sense and with no greater extent”). The primary author of the Fourteenth Amendment’s Due Process Clause was John Bingham, and he (like other supporters of the Fourteenth Amendment) said that he only wanted to enforce pre-existing federal rights against the states. See CONG. GLOBE, 39th Cong., 1st Sess. 1088-1089 (1866).
It would be especially odd for all of the incorporated rights to apply identically in state and federal proceedings, except for the one right that is identically phrased. See William J. Brennan, The Bill of Rights and the States, 61 N. Y. U. L. REV. 535, 545 (1986) (“[O]nce a provision of the Federal Bill was deemed incorporated, it applied identically in state and federal proceedings. To this day that remains the position of the Court”). See also Benton v. Maryland, 395 U.S. 784, 795 (1969) (“the same constitutional standards apply against both the State and Federal Governments”).
March 24, 2011, 11:50 amMark Field says:
Andrew, while I appreciate the cites, none of them really support your original claim. After-the-fact conclusory statements aren’t the same as historical evidence from the time of ratification. And all of them beg the question what the actual understanding of the 5th A was in 1868.
That’s not to say that I think you’re wrong, only that I don’t think the answer is simple.
March 24, 2011, 1:23 pmJoe says:
So, Andrew, you reference a concurring opinion, one that says “different constructions might be proper,” someone who actually didn’t state the position of the Court within a few years (the petit jury clause is deemed incorporated, but isn’t applied equally) and doesn’t necessarily apply when the same word is used [e.g., corporations sometimes are treated as 'persons,' sometimes are not, depending on the provision in question].
As to that not being Scalia’s view, confusing about his concurring opinion in McDonald:
Despite my misgivings about Substantive Due Process as an original matter, I have acquiesced in the Court’s incorporation of certain guarantees in the Bill of Rights “because it is both long established and narrowly limited.”
Unless the freedom of speech and such is not “substantive” protections. As to being limited to the BOR, does he not accept precedents involving the right to travel, deemed a “liberty” protected via substantive due process? Some call it a ‘privilege or immunity’ but he didn’t join Thomas in giving that provision broad reach.
March 24, 2011, 2:01 pmAndrew says:
My understanding of Justice Scalia’s position is that he is only acquiescing to incorporation of certain substantive rights that are enumerated in the Bill of Rights, rather than generally admitting that the Due Process Clause (or the whole Fourteenth Amendment) applies to matters of substantive law as well as to matters of procedure.
Regarding the citations I gave above, one of them was to the Congressional Globe, wherein Congressman Bingham said: “The proposition pending before the House is simply a proposition to arm the Congress of the United States with the power to enforce the Bill of Rights as it stands in the Constitution today.”
Bingham did not say: “The proposition pending before the House is simply a proposition to arm the Congress of the United States with the power to enforce the Bill of Rights as it stands in the Constitution today, except for the Due Process Clause which will have a much more expansive meaning than the Due Process Clause that stands in the Constitution today.”
March 24, 2011, 2:35 pmDilan Esper says:
Drink up!
March 24, 2011, 3:10 pmMark Field says:
Again, though, this doesn’t solve our problem. Bingham might have meant incorporation via PorI, or he might have meant via substantive dp. Nor does he tell us anything at all about what “due process” should be understood to mean. In the absence of any explanation, we have to assume that it meant whatever people generally understood it to mean in 1868. Which is where we started.
Also, I seem to recall that Bingham was one of those who accepted Corfield v. Coryell. If I’m correct in that memory, then there may have been additional meaning.
March 24, 2011, 4:00 pmAndrew says:
Yes, framers of the 14th Amendment like Sen. Jacob Howard thought that the Article IV Privileges and Immunities Clause imposed restrictions upon the federal government, despite court decisions (and statements by Madison et al.) saying that that clause in Article IV merely requires states to treat visitors from out-of-state equally. So, when the framers of the 14th Amendment spoke about applying the Bill of Rights against the states, some of them hoped or expected that the 14th Amendment would thereby apply Article IV limitations against the states. As they saw things, Article IV was already part of the Bill of Rights and already limited the federal government.
Be that as it may, it seems pretty clear that the framers of the 14th Amendment wanted their new DP Clause to mean what the 5th Amendment DP Clause meant (“It hath that extent – no more”), rather than being hugely more expansive and undemocratic.
March 24, 2011, 4:26 pmfederal white collar criminal says:
I guess my question would be, assuming that the DPC in 5A was purely procedural, but the DPC in 14A is substantive (reflecting a change in understanding of the meaning of the term “due process,” should we read the 14A as implicitly amending the DPC in the 5A? Or is that a bridge too far?
March 24, 2011, 5:26 pmMark Field says:
Assuming that’s true (because all you’ve really done here is state your conclusion), it leaves open the question raised by Mr. Williams’ article, to wit, what did the DP clause mean in 1868?
March 24, 2011, 6:11 pmAndrew says:
Well, I think Mr. Williams is 100% correct that the Fifth Amendment’s DP clause never truly had any “SDP” component.
March 24, 2011, 6:35 pmMark says:
That’s certainly responsive!
March 24, 2011, 9:03 pmMark Field says:
Perhaps that was my fault, so I’ll re-phrase the question: what was understood by the phrase “due process of law” in 1868?
March 24, 2011, 9:26 pmAndrew says:
First and foremost, the new DP Clause was understood in 1866-1868 to mean whatever the authentic intended meaning of the Fifth Amendment was. The goal in 1866-1868 was replication instead of creating new and different restraints on government. That’s why the congressional leaders kept saying, in effect, “Relax, we’re not making the states do anything that James Madison and his pals didn’t already require of the federal government.” With that assurance, there was no need for the framers and ratifiers of the 14th Amendment to provide further details. They were banking on the prestige and reputation of those who wrote the already-existing Constitution. To use that prestige and reputation as mere camouflage, or as a facade, would seem fundamentally deceptive.
March 25, 2011, 12:41 amlaw student says:
I agree that it is good, but it wasn’t “before” — he wrote and submitted this after his SDP piece.
March 25, 2011, 1:18 amMark says:
What’s your cite for the proposition that the drafters of the 14th Am. DP Clause described it as covering what people understood it to have covered in 1787, rather than what people in 1868 understood it? (And what’s your evidence for the understanding in 1868 of what it had covered in 1787?)
March 25, 2011, 10:06 amPeter says:
The logic of article, as used in the year 2114:
In the year 2014, an amendment was passed authorizing u.s. marshals to marry u.s. citizens, with the marriage license being issued under the authority of the federal government. A provision of the amendment provided that marriages licensed pursuant to the amendment’s authority were only valid if they were recognized by the laws of the states at the time of the amendment’s enactment.
Litigators promptly argued that persons of the same sex could enter into marriages under the amendment; they claimed that a growing number of state judges had recognized same sex marriages in the years prior to the amendment’s enactment and that Americans understood at the time they ratified the amendment in 2014 that the law had evolved by that time to allow marriages between persons of the same sex.
Scholars have demonstrated that at least a handful of state judges did in fact recognize same sex marriages in the years prior to 2014, and they reason that since Americans were generally unsuccessful in reversing these ruling, they acquiesced in the altering of the definition of marriage between 1995 and 2014.
March 25, 2011, 11:57 amAndrew says:
There are lots of citable authorities on that point. For example, Thaddeus Stevens said: “I can hardly believe that any person can be found who will not admit that every one of these provisions is just. They are all asserted, in some form or other, in our DECLARATION or organic law. But the Constitution limits only the action of Congress, and is not a limitation on the States. This amendment supplies that defect ….”
Again, he was banking on the veneration people had for the original Constitution and Bill of Rights (plus the Declaration of Independence with regard to the Equal Protection Clause). Very clearly, they wanted the 14th Amendment to be interpreted the same way as the original Bill of Rights, and they obviously were not amending the latter.
March 25, 2011, 1:58 pmMark says:
I fail to see how this supports the proposition that Stevens was saying that the 14th DP should be interpreted the same as 5th DP was understood in 1787, never mind how it supports the proposition “very clearly.”
March 25, 2011, 2:28 pmAndrew says:
If Stevens thought it’s fine to interpret amendments in ways that were not intended by the authors, then there’s really no point in even discussing what Stevens said or thought.
On the other hand, if what Stevens said does matter now, then please observe Stevens did not lay out much descriptive guidance about what the 14th Amendment DP Clause meant. Instead he offered a prescription for how to figure that out, and his prescription was to look at what the original clause in the 5th Amdt meant, and apply that meaning to the 14th Amdt clause.
Look at it another way….From 1789 to 1866 there was virtually no guidance from the Supreme Court as to how a due process clause would be used for judicial review. Judicial review itself had only been exercised twice to strike down a federal statute, and the latter exercise of judicial review (in Dred Scott) was invalidated by the 14th Amendment itself.
The framers of the 14th Amendment realized that many provisions of the original Constitution and Bill of Rights were not 100% clear in 1866-1868, and instead of claiming that their own interpretations of those old provisions should have weight in interpreting the 14th Amendment, members of Congress in 1866-1868 recognized that the Supreme Court would still be handing down decisions about what those old provisions were intended to mean.
For example, Senator Jacob Howard said in 1866, “we may gather some intimation of what probably will be the opinion of the judiciary by referring to” lower court decisions. Neither Howard nor any other framer of the 14th Amendment insisted that their own interpretations of earlier amendments (or the original Constitution) had any determinative weight, even as they announced that the 14th Amendment meant the same thing.
March 25, 2011, 4:29 pmJoe says:
The Framers of the 14A, like the Framers of the 5A, had a different idea of what time old principles like “due process of law” meant than the original actors. There was a lot of water under the bridge since 1791, just as assumptions of what Coke meant guided them, some such assumptions probably off. Or, if he was really an outlier. Most of them was sure that they were loyal to the Framers, just like Lincoln and Douglas — competing — thought they were.
Justice Souter in Washington v. Glucksberg noted that the basic principle that the a general substantive liberty was protected by the Constitution had roots back to the beginning, though different means were cited over the years. The article cited something along these lines in passing — some rulings cited fundamental principles of justice w/o citing SDP. Later on, SDP partially was used to advance a similar principle, especially as judicial review gained in strength and legislative power expanded.
March 26, 2011, 12:04 amLinks from the past week « Notes From Babel says:
[...] David Bernstein on Ryan Williams’—a living, breathing, practicing attorney, like me!—”path breaking” new article, The One and Only Substantive Due Process Clause. [...]
March 26, 2011, 2:30 amAndrew says:
The framers of the 14th Amendment understood that the Due Process Clause does not guarantee justice or equality, any more than the First Amendment guarantees freedom from cruel punishment, or the Eighth Amendment guarantees freedom of speech. They added the Equal Protection Clause because the Due Process Clause doesn’t guarantee equality.
And they included the Due Process Clause because the Privileges or Immunities Clause only prohibited states from making or enforcing certain laws (that violate fundamental federal constitutional rights), while doing nothing to prevent states from acting outside the law.
The foregoing paragraph is pretty much self-evident once you study the subject long enough and deeply enough. But the courts have strayed far from these principles.
March 30, 2011, 10:43 pm