Activist Judges

As long as I'm passing out grades:

JM, a/k/a, JWK, ACRS, I give you an "F" on your understanding of the due process clause. I see you changed your name to avoid having to respond to all your misrepresentations that I identified after our last constitutional battle.

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James Madison a/k/a JWK, ACRS wrote:

First of all the Due Process guarantees only one thing, due process. The plain language is simple to understand. "No state shall deprive any person of life, liberty, or property WITHOUT due process of law." The phrase is stating in unequivcal terms your life, liberty, and property can be taken so long as "due process" is given. So the phrase guarantees only one thing, due process.

Second of all if anyone needs to educate themselves as to the meaning of due process it is yourself. What do the words "due process" mean?

Due process only means, as Justice Scalia eloquently put it, "a validly enacted statute and a fair trial."

What is meant by a "validly enacted" statute? How do we know if a statute is "validly enacted" by the legislature? Are there no limits on what laws the state legisature may enact? Is the legislature, pursuant to its vast police powers, allowed to make any law it wants to make that infringes upon life, liberty, and property interests so long as the legislature provides a "fair trial?"

With respect to "validly enacted statutes," do you agree with the Supreme Court in Lochner v. NY when it said:

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It must, of course, be conceded that there is a limit to the valid exercise of the police power by the state. There is no dispute concerning this general proposition. Otherwise the 14th Amendment would have no efficacy and the legislatures of the states would have unbounded power, and it would be enough to say that any piece of legislation was enacted to conserve the morals, the health, or the safety of the people; such legislation would be valid, no matter how absolutely without foundation the claim might be. The claim of the police power would be a mere pretext,- become another and delusive name for the supreme sovereignty of the state to be exercised free from constitutional restraint. This is not contended for. In every case that comes before this court, therefore, where legislation of this character is concerned, and where the protection of the Federal Constitution is sought, the question necessarily arises: Is this a fair, reasonable, and appropriate exercise of the police power of the state, or is it an unreasonable, unnecessary, and arbitrary interference with the right of the individual to his personal liberty, . . .

. . . If the act be within the power of the state it is valid . . . But the question would still remain: Is it within the police power of the state? and that question must be answered by the court. . . .

http://laws.findlaw.com/us/198/45.html

Again, according to you and Scalia, Due process only means "a validly enacted statute and a fair trial." But that just begs the question. What is a validly enacted statute?

If you agree with the Court in Lochner v. NY, then to enact a valid law within the power of the state, the law must be fair, reasonable, and an appropriate exercise of the police power of the state. An invalid law--a law that would violate the Fourteenth Amendment--is one that constitutes an unreasonable, unnecessary, and arbitrary interference with the right of the individual to his personal liberty. And, doesn't this valid/invalid analysis give SUBSTANCE to life, liberty, and property interests beyond the mere fairness of the procedures that the state may use to deprive you of those interests?

Aren't we back where we started when I noted that due process embodies the "law of the land" which protects individuals from arbitrary use of governmental power and that the due process clause contains both a procedural and a substantive component?

How do you determine whether a statute is a valid exercise of state police powers? The only way to do so is to define the SUBSTANCE of the life, liberty, and property interests that the statute affects and determine if the state arbitrarily or unnecessarily infringes upon those rights.

There's no point in telling us that due process consists only of "validly" enacted statutes and fair trials if there exists no substantive means to determine validity. So, you can deny that the due process clause contains a substantive component, but you're only fooling yourself. The rest of us know better.

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James Madison wrote:

In 1787 the words "due process" had a specific and particular meaning . . . . It means substantive due process is not textually supportable. . . .

Before 1787, in 1787, and after 1787, due process of law (the law of the land) has always been construed to contain a substantive component that protects individuals from arbitrary (INVALID) use of governmental power.

"The Legislative has no right to absolute, arbitrary power over the lives and fortunes of the people. The Legislative cannot justly assume to itself a power to rule by extempore arbitrary decrees…" Samuel Adams, The Rights of the Colonists (1772).

If the law of the land did not embody the basic, substantive concept of freedom from oppressive and tyrannical government powers that infringe upon individual life, liberty, and property interests--why did our founders engage in a revolutionary war?

Accordingly, JM's thesis is based on a faulty premise and falls flat on its face.

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JM, a/k/a, JWK, ACRS, I give you an "F" on your understanding of the due process clause. I see you changed your name to avoid having to respond to all your misrepresentations that I identified after our last constitutional battle.

I have not changed my name. Get a clue! Furthermore, anyone who does not know the meaning of "absolute" has the misrepresentations. So get another clue.

Not only have you falsely accused me of changing my name, it demonstrates this is not the first time you are out in the dark.

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JM, a/k/a, JWK, ACRS, I give you an "F" on your understanding of the due process clause.

Well I give you an "F" on reading comprehension.

It should be apparent, especially to one who practices law, we have two arguments running here. Reading comprehension skills are indispensable to the effective practice of law as are the skills of critically reading and logical reasoning, are also invaluable skills. Anyone possessing these skills would quickly realize there are two arguments at this time. You are discussing how the Court over the years has interpreted the due process clause and I am focusing upon whether or not these interpretations are "textually" supportable.

You keep citing how the U.S. Supreme Court has interpreted the words "due process". Well I can already do this without you. I don't need you to know how the U.S. Supreme Court has interpreted the due process clause through the years. I am very well aware the Court has found two standards required by the words "due process" as they appear in the 14th amendment. One is a rational basis review "Lawrence v. Texas" and recognized long before Lawrence in cases such as Meyer v. Nebraska, Pierce v. Society of Sisters (requiring a rational/reasonable relation to the legitimate state purpose).

I know all about substantive due process and it's origins. It is apparent to me, however, you do not know what substantive due process means. Otherwise you would not be citing this "no arbitrariness" standard and calling it "substantive due process" as you did with the Samuel Adams example. Substantive due process is the procedure of looking at the word "liberty" as this word is found in the 14th amendment due process clause and stating the word "liberty" protects additional freedoms. These additional freedoms or liberties are those so rooted in the traditions and conscience of our people as to be ranked fundamental.Griswold v. Connecticut. Then once the right is deemed fundamental strict scrutiny is applied.

So the phrase "substantive due process" is the practice of looking at the word "liberty" as it appears in the 14th amendment and determining this word protects and guarantees additional liberties and freedoms which are "so rooted in the traditions and conscience of our people as to be ranked fundamental".

I know all about the standards, fundamental right, strict scrutiny requiring a compelling state interest, narrowly tailored, and so forth.

Constitutional law is one of my specialties, as is criminal law. I don't need you to keep talking about how the Court through the years has interpreted the phrase "due process".

What you "keep" on missing post after post is the fact I am debating whether or not these "interpretations" are "correct" interpretations of the text as opposed to what the Court has "construed" over the last 100+ years.

It is my contention the Court has taken interpertations which are not supportable by the text. This would include Lochner, Meyer, Pierce, Griswold, Roe, Lawrence, and other similar cases.

So your statement of giving me an "F" on due process is erroneous. I know more about it than you do because it is my job, it is my specialty, it is my area of most heightened interest, it is my forte. I know more about this subject than you do.

All you have done is quoted us some meaning of the word "due process" straight from Black's Law dictionary, more like plagarized it without citing your source, vastly misunderstood what "substantive due process" means and reference me to a bunch of cases that I already know exist.

I already possess a very good understanding of how the Court has interpreted the word "liberty" in the 14th amendment (substantive due process) and the words "due process". This is, as I have said before, not the point.

The "point" is whether or not Roe, Griswold, Meyer, Lochner, Lawrence, and so forth are textually defensible.

Let's begin with Roe, Lochner, Meyer, and other similarly situated cases. Do you know, precisely, what the Courts held?

First of all the Courts were focusing upon the word "liberty" as it appears in the due process clause and not really focusing upon the words "due process". Anyone reading the cases will quickly see the Court said the word "liberty" was broad enough to include a woman's decision to have an abortion, or to include consensual same sex sodomy between two adults, and so forth. So the Court in these cases was focusing upon the word "liberty".

Now the question is whether or not such an interpretation is textually defensible? My position is "NO" and consequently, each case is an example of "judicial activism". Why? Because "judicial activism" is taking an interpretation which is not defensible by the text.

So the question is whether or not in each of these cases the Court took an interpretation which is compatible with the text.

nor shall any State deprive any person of life, liberty, or property without due process of law;

This is what the 14th amendment due process clause says. Yet Roe, Lochner, Meyer, Pierce, Lawrence, and others are looking at the word "liberty" and arguing the word "liberty" guarantees the protection of additional freedoms or areas of privacy.

But this interpretation is errneous. The plain text does not guarantee the protection for any additional liberties or freedoms. The plain text guarantees only one thing, due process.

So the Court in Roe, Lawrence, Pierce, Meyer, and others similar cases are incorrect in asserting the word "liberty" guarantees protection for "fundamental rights". The due process clause of the 14th amendment does not guarantee "fundamental rights" or additional freedoms and liberties. The due process clause guarantees only one thing, due process.

So those cases, like Roe, Lawrence, Meyer, Pierce, and others, which assert the word "liberty" protects additional "fundamental" rights are taking an interpretation which is not supported by the text but in fact ignore the text.

The plain english of the text guarantees only 1 thing, due process.

Here is the phrase again. nor shall any State deprive any person of life, liberty, or property without due process of law;

Quite simply the clause guarantees and promises you only 1 thing, due process. It does not guarantee you "liberty, life or property" at all. It only guarantees the state must give you due process before taking them away.

But think about this for a moment. If the clause was "guaranteeing" you additional liberties then the plain english of the clause makes no sense. The plain english is allowing the state to take away liberty, property, and life so long as they give you due process. Arguing the phrase "guarantees" additional liberties actually subverts the plain meaning of the phrase. The plain meaning of the phrase is not trying to elevate freedoms and liberties to a fundamental level as to guarantee them but rather allow liberties to be taken away so long as "due process" is followed.

So the phrase is guaranteeing only one thing, due process. So all those cases aforementioned are taking an interpretation which is not supported by the text.

The text guarantees you only due process.

Now since this leads us into discussion about what "due process" means I will make a separate post on it.

This will also include what a "validly enacted" statute means. It does not mean what Lochner thought it meant nor did the Framers of the U.S. Constitution or of the 14th amendment think due process meant what Lochner meant.

The words "due process" as they appear in the Fifth and 14th amendment regard only one thing and it is "procedure" and nothing more. This "procedure" is specific and by it's own term, does not include a rational basis review or strict scrutiny(both of which are judicially created terms of art not supported by the text). I have done the research on what these words meant historically and how the Framers understood them and "neither" support the notion of substantive due process but rather the idea of "procedure".But more on this issue later.

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James Madison wrote:

. . . You are discussing how the Court over the years has interpreted the due process clause and I am focusing upon whether or not these interpretations are "textually" supportable.

I have already proven in multiple previous posts that the phrase, "due process of law" as used in the TEXT of the Constitution includes within its meaning the substantive protection of individual rights against arbitrary government power. That's what due process of law meant when the Constitution was written; that's what it meant when the Fifth Amendment was written; that's what it meant when the Fourteenth Amendment was written. Therefore, Supreme Court decisions that interpret the due process clause to contain both a procedural and a substantive component are correct and SUPPORTED by the text of the Constitution itself.

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I know all about substantive due process and it's origins.

No. You haven't proven that you know anything. You said due process only means a "validly enacted statute" and a fair trial. HOWEVER, that begs the question. How do we know if a legislative enactment is a VALID exercise of state police powers? The answer to that question requires a substantive due process analysis.

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It is apparent to me, however, you do not know what substantive due process means. Otherwise you would not be citing this "no arbitrariness" standard and calling it "substantive due process" as you did with the Samuel Adams example. Substantive due process is the procedure of looking at the word "liberty" as this word is found in the 14th amendment due process clause and stating the word "liberty" protects additional freedoms. These additional freedoms or liberties are those so rooted in the traditions and conscience of our people as to be ranked fundamental.Griswold v. Connecticut. Then once the right is deemed fundamental strict scrutiny is applied.

So the phrase "substantive due process" is the practice of looking at the word "liberty" as it appears in the 14th amendment and determining this word protects and guarantees additional liberties and freedoms which are "so rooted in the traditions and conscience of our people as to be ranked fundamental".

Your statements are ridiculous. A substantive due process analysis is not an exercise in conjuring up "additional" liberties out of the word liberty in the Fourteenth Amendment. How silly can you be?

A substantive due process analysis measures the reasonableness of the government's reach with respect to the individual interests involved. ARBITRARY (unreasonable) laws are laws that infringe upon individual rights and are not reasonably related or necessary to serve a legitimate or compelling government purpose. As much as you try, you cannot separate the concept of arbitrariness from a substantive due process analysis. They are intertwined: The due process clause does not tolerate arbitrary laws that infringe upon individual rights--and one must therefore conduct a substantive due process analysis to determine whether the statute is valid or invalid.

You're the one who said that due process requires "validly enacted statutes and a fair trial." You haven't responded to my question: HOW DO YOU DETERMINE IF A STATUTE IS VALID?

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Constitutional law is one of my specialties, as is criminal law. I don't need you to keep talking about how the Court through the years has interpreted the phrase "due process".

Constitutional law and criminal law are my specialities. Why do you claim to be a specialist, and at the same time, not understand that we cannot determine whether a law is arbitrary and unreasonable without reference to the individual interests it affects?

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What you "keep" on missing post after post is the fact I am debating whether or not these "interpretations" are "correct" interpretations of the text as opposed to what the Court has "construed" over the last 100+ years.

I have already and repeatedly responded to your TEXTUAL argument that due process means only a validly enacted statute and a fair trial. You are merely begging the question. What is a validly enacted statute? What is valid? What is invalid? It is clear that due process of law does not concern itself merely with procedural fairness, but also with substantive fairness in the application of the laws to the interests affected.

That brings us right back to the fact that "due process of law" means the law of the land which embodies protection of individual rights against arbitrary government infringements. To determine whether the statute is invalid--arbitrary or unnecessary--we apply a substantive due process analysis. Like it or not--that's what the TEXT of due process clause means and what it has ALWAYS MEANT.

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So your statement of giving me an "F" on due process is erroneous. I know more about it than you do because it is my job, it is my specialty, it is my area of most heightened interest, it is my forte. I know more about this subject than you do.

ROFL. NO, you DON'T know more than I know on this subject. This my job, my specialty, and my area of most heightened interest. It is my forte. I know FAR MORE about this subject than you do. So there.

You simply don't make any sense and, based on what you have written thus far, I would never retain your services. I hope you don't sit on the bench . . . Scalia? is that YOU? Laughing

I stand by the "F" on your report card, JM or JWK, or whoever you are.

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. . . First of all the Courts were focusing upon the word "liberty" as it appears in the due process clause and not really focusing upon the words "due process". Anyone reading the cases will quickly see the Court said the word "liberty" was broad enough to include a woman's decision to have an abortion, or to include consensual same sex sodomy between two adults, and so forth. So the Court in these cases was focusing upon the word "liberty".

Now the question is whether or not such an interpretation is textually defensible? My position is "NO" and consequently, each case is an example of "judicial activism". Why? Because "judicial activism" is taking an interpretation which is not defensible by the text.

How can the Court determine whether the statute arbitrarily, in violation of the law of the land (due process of law), infringes upon an individual right without reference to the right (liberty interest) involved? The TEXT of the due process clause requires the court to do exactly what it did. Your argument that that the court's interpretation is textually indefensible is without merit.

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. . . Yet Roe, Lochner, Meyer, Pierce, Lawrence, and others are looking at the word "liberty" and arguing the word "liberty" guarantees the protection of additional freedoms or areas of privacy.

No. You are wrong. The Court is looking at the due process clause that PROTECTS liberty from arbitrary infringements. The fact that the Court measures the reasonableness of the government infringement with respect to the actual right infringed does not mean the court is conjuring up "additional freedoms."

Your idea that the Court is looking at the word "liberty" to make up "additional liberties" is absurd. It doesn't take a constitutional specialist to understand that the word "liberty" means more than freedom from physical restraint, but includes freedom from unreasonable (arbitrary) government intrusions into individual privacy. It is a simple concept--due process of law protects the people from unreasonable government infringements upon individual liberties.

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So the Court in Roe, Lawrence, Pierce, Meyer, and others similar cases are incorrect in asserting the word "liberty" guarantees protection for "fundamental rights".

Well. You are wrong again. The Court did not say the word "liberty" protects liberty. The Court asserts the "DUE PROCESS CLAUSE" protects fundamental liberty interests.

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The due process clause of the 14th amendment does not guarantee "fundamental rights" or additional freedoms and liberties. The due process clause guarantees only one thing, due process.

You're wrong again. Due process of law does indeed protect individual interests in life, liberty, and property from unreasonable, arbitrary government deprivations.

We're STILL WAITING for you to explain your assertion that the due process clause means only a "validly" enacted statute and a fair trial. Is every statute enacted by a state legislature valid? If not, how do we determine if it is invalid?

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James Madison wrote:

All you have done is quoted us some meaning of the word "due process" straight from Black's Law dictionary, more like plagarized [SIC] it without citing your source, vastly misunderstood what "substantive due process" means and reference me to a bunch of cases that I already know exist.

Plagiarized? How can one take your statements seriously when you make wild accusations? Where did I represent that I invented the idea of due process of law and held it out as my own?

I specifically informed you that the concept of due process of law as the law of the land which embraces protection of individual liberties from arbitrary government power is centuries old. I quoted and cited the Magna Carta. I quoted one of our founding fathers. I quoted and cited Supreme Court decisions that traced the origins and the meaning of due process of law (as the law of the land). It is irrelevant to your accusation of plagairism that you reject the cited supreme authority on the issue (Supreme Court decisions) because you don't agree with those decisions and claim to already know of their existence. I have amply cited to authority to substantiate the meaning of due process of law as set forth in my posts.

You quoted your idol, the swaggering religious idiot with a moral majority totalitarian agenda, Justice Scalia, to say due process of law means only "validly enacted statutes and a fair trial." You claim the due process clause embraces procedure only--hence, the government can do anything it wants to do--it can "arbitrarily" deprive any individual of life, liberty, or property--so long as the government does so through the proper procedure. (According to Scalia, proper procedure sometimes requires a fair trial--but other times, all it requires is the enactment of the statute itself.)

Your concept merely mimic's Scalia's concept that the government can extinquish any liberty interest it wants to extinquish via a legislative enactment. In a nation that was founded upon the concept that individuals have inalienable rights and governments are instituted to SECURE those rights (see, e.g., Declaration of Independence--and, btw, the sky is blue when the sun is shining and I'll look up the authority for that statement and cite it later, rofl), the notion that the government can arbitrarily extinquish individual rights simply by enacting a law is tantamount to heresy.

In this country--the land of the free--the supreme law of the land embodied in the due process clause does not tolerate arbitrary government infringements upon individual rights.

Scalia has YOU FOOLED, but I'm not standing in line with the rest of you Scalia idolators waiting breathlessly to sacrifice individual liberty interests of myself and my fellow citizens on the altar of stupidity.

I'm still waiting for you to explain the meaning of a "validly enacted statute."

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Far being from me to get involved in a discussion of the fine points of constitutional law. However, "validly enacted statute," as defined by Scalia and his disciple JM seems to me as a layman is the tactic used by Hitler to legitimize his actions at the beginning of his regime. Let the law legalize the crime and it is no longer a crime.
The supreme court is to protect the citizens from that not to aid and abet it.

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Astute observation, au129. I give you an "A" too! Smile

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I have already proven in multiple previous posts that the phrase, "due process of law" as used in the TEXT of the Constitution includes within its meaning the substantive protection of individual rights against arbitrary government power. That's what due process of law meant when the Constitution was written; that's what it meant when the Fifth Amendment was written; that's what it meant when the Fourteenth Amendment was written. Therefore, Supreme Court decisions that interpret the due process clause to contain both a procedural and a substantive component are correct and SUPPORTED by the text of the Constitution itself.

Incorrect. I suggest you brush up on your "history" of the due process clause. You reference Samuel Adams and think 1 man's opinion is dispositive on this issue. He isn't and your argument thus far is a joke.

Due process originally meant in 1791 and in 1868 "procedural" due process. The Framers of the 5th or 14th amendments did not conceive of a "substantive" component in either due process clause.

This explains why some law professors ahve written lengthy articles explaining "why" they did not want their "understanding" of the phrases to be carved in stone. The "original understanding" of due process was "procedural" only. But as a professor at a Catholic law school illustrated they did not want this "understanding" to be controlling for all time. Hence, they use the fact the Framers did not necessarily "want" procedural due process, their view, to always be binding to justify "substantive" due process. Pull your head out of the clouds and come back down to earth. You are losing the historical argument, period.

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No. You haven't proven that you know anything. You said due process only means a "validly enacted statute" and a fair trial. HOWEVER, that begs the question. How do we know if a legislative enactment is a VALID exercise of state police powers? The answer to that question requires a substantive due process analysis.

Again another "F" in reading comprehension. I certainly hope you never have to argue a text before a judge because the likelihood of your success would be small. I haven't proven I know what the current law is on the meaning of "due process" despite the fact I have cited about 10 U.S. Supreme Court cases where the meaning of it is articulated? Foolish! I have demonstrated I know the current meaning of the words "due process" as construed by the Court and your claim I have not is just wrong. In fact I can't recall an occasions when you have been right.

Go back, take a deep breath, and slowly read the portion of my posts where I cited approximately about 10 U.S. Supreme Court cases in how they construe the words "due process". This alone not only demonstrates I know the important cases on this issue but having read each case I know what the words "due process" means to the Court. That was just a stupid claim you just made, plain stupid.

Now since you can't seem to follow different issues to clearly, despite the fact I went out of my way to say we have "two" different arguments going at this time, I will reiterate it again, just for you, so again read slowly. Very slowly.

1. We have the current interpretation of the words "due process" as construed by the Court through a series of cases, beginning with the Dread Scott decision in regards to the 5th amendment, and Lochner for the 14th amendment.
2. The second part of the argument is whether or not the Court's interpretation of the words "due process" and their imposition of "substantive due process" is a textual reading of the provisions.
3. When you make the claim a "substantive due process" is needed to access whether or not a "statute" is validly enacted ASSUMES substantive due process is REQUIRED by the text. Well your ASSUMPTION is the freaking ISSUE to be debated! The issue is whether or not substantive due process is actually supportable by the text. I ALREADY know the caselaw says so but then again SO WHAT! The ENTIRE DEBATE is whether or not the CASELAW is a correct interpretation of the freaking text! My goodness. You call yourself a lawyer and confuse issues and assume them as true?

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Your statements are ridiculous. A substantive due process analysis is not an exercise in conjuring up "additional" liberties out of the word liberty in the Fourteenth Amendment. How silly can you be?

This is so wrong. I have never met someone brutalize constitutional interpretation as much as you do. Well at least we know you'll never teach constitutional law in any law school in America, at least not a respectable or credible one with these errors.

Roe v. Wade was a substantive due process case. Why? Ask any freaking law professor in America and they will all respond the same way. They will respond as I have answered. Roe v. Wade is a substantive due process case because the Court looked at the word "liberty" as it is found in the due process clause of the 14th amendment and decided that the decision to have an abortion was covered by the word "liberty" in the due process clause. Why? Do you even know the test? No you don't so I will repeat it. They found it protected by the word "liberty" because, and this is the analysis the Court uses to find fundamental rights in the word liberty, "so rooted in the traditions and conscience of our people as to be ranked fundamental.

So the Court in Roe v. Wade looked at the word "liberty" in the 14th amendment and deemed it protected a womans decision to have an abortion and rendered the right "fundamental". That is SUBSTANTIVE DUE PROCESS. Substantive due process is when the Court looks at the word "liberty" and finds it protects certain "liberties". In other words the Court asserts the word "liberty" has "SUBSTANCE". My goodness it is pathetic when lawyers get this stuff wrong but are so high up they think they are right.

The Court in Roe v. Wade even tells you they are looking at the word "liberty" in the 14th amendment as the BASIS for their decision. This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is The BOLDED language is the very ESSENCE of SUBSTANTIVE DUE PROCESS.

My goodness you are so wrong. It is daunting to even converse with someone who is this blatantly wrong and yet convince themselves they are right! Such people are beyond correction and persuasion.

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A substantive due process analysis measures the reasonableness of the government's reach with respect to the individual interests involved. ARBITRARY (unreasonable) laws are laws that infringe upon individual rights and are not reasonably related or necessary to serve a legitimate or compelling government purpose. As much as you try, you cannot separate the concept of arbitrariness from a substantive due process analysis. They are intertwined: The due process clause does not tolerate arbitrary laws that infringe upon individual rights--and one must therefore conduct a substantive due process analysis to determine whether the statute is valid or invalid.

This is just plain wrong. First of all before a Court can even look at the reasonableness of the government's action they have to first decide whether or not the word "liberty" protects the individual interests involved. That is exactly what they did in Lawrence, Roe, and other substantive due process clause cases. They look at the word "liberty" and determine if it has any "SUBSTANCE" before they go any further. That is the process and procedure of the Court in every Substantive due process case!

Once they find the word "liberty" does in fact have some substance to it they then ask if it is "fundamental". It all depends on whether or not the right is fundamental and this "DETERMINES" the level of scrutiny. A fundamental right gets strict scrutiny. A right which is not fundamental gets rational basis review, see Lawrence v. Texas.

Additionally, I cannot possibly speak so correctly and intelligent on these points without "actually" having read the cases and have some knowledge on the law and what the case stands for.

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Constitutional law and criminal law are my specialities. Why do you claim to be a specialist, and at the same time, not understand that we cannot determine whether a law is arbitrary and unreasonable without reference to the individual interests it affects?

I am not at all convinced they are your specialties. In fact there is serious doubt they are given your manner of disposition in this dialogue.

I mean this language quoted above just demonstrates you do not know the issues of this argument much less substantive due process. The ISSUE for the upteenth time is WHETHER or not INDIVIDUAL INTERESTS are protected by the word LIBERTY in the 14th amendment and IF SO, is this a CORRECT interpretation of the text?

You know I have been to other websites and the lawyers there have had little difficulty in engaging the argument. They IMMEDIATELY admit the word liberty and the DUE PROCESS clause of the 14th amendment does not TEXTUALLY permit or allow SUBSTANTIVE DUE PROCESS. They CONCEDE and ADMIT PROCEDURAL DUE PROCESS was originally all that was required by the 14th amendent's due process clause.

But they counter by arguing this interpretation ignores "justice" and is entirely focused upon "procedure" and the "fairness" of the procedures. Yet they argue this interpretation is not concerned with justice, is not concerned with protecting minority rights from majority rule, and on this basis they justify an interpretation which is beyond the text.

That is the argument I was expecting but you, however, have not made this argument, primarily because you do not know the issues of the exchange. You keep citing arbitrariness and unreasonableness as if it gets you somewhere. The ENTIRE exchange is whether or not ARBITRARINESS and REASONABLENESS can TEXTUALLY be read into the words DUE PROCESS of the 14th amendment.

Again on this issue you lose historically and I expected an argument justifying why it was okay to ignore what these words originally meant. No such luck.

I expected to read how "originalism" was not required by any part of the U.S. Constitution. That after all would be the relevant counter argument. You never made it.

I expected an argument about how possibly the "Framers" were against "originalism" or "against" applying their meaning of the terms to future generations as opposed to redefining them for ourselves, which the Court has done. Again no such luck.

I think the reason why I have yet to read such relevant counter-argument is because you do not know the issues! You are in the dark when it comes to constitutional interpretation contrary to your assertions. You agree with the Court's current interpretation but do not have much of a "judicial philosophy" to support it.

You keep erroneously citing, "the Framers of the 14th amendment never intended to subject our liberty to arbitrary depravations" and so forth without having actually done a lick of research on the subject. I say this only because you are right in making the statement but historically WRONG in their remedy to the dilemma. Their "REMEDY" to this arbitrariness was not SUBSTANTIVE DUE PROCESS but PROCEDURAL DUE PROCESS.

Anyone who knows the historical record understands this and addresses the argument in those examples of counterarguments I provided. I know this because I spent a weekend researching the topic.

I don't really have the time to engage a dialogue with someone who does not fully understand textualism, know the issues being discussed, incorrectly cites the historical record, and has no judicial philosophy of her own much less an understanding of constitutional interpretation.

But I tell you what. Over at politicalcrossfire.com there is a forum devoted to Constitutional Law where a collection of some very good and bright lawyers hang out. Why don't you take your ideas over there and test them out? You are going to receive the same criticisms as I just annunciated here, even from the lawyers who "agree" with your overall position.

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What is a validly enacted statute? What is valid? What is invalid? It is clear that due process of law does not concern itself merely with procedural fairness

See it is ridiculous claims like this which will earn you ridicule by almost anyone who knows the history of the due process clause. The DUE PROCESS clause ORIGINALLY meant PROCEDURAL DUE PROCESS only.

As I said before over at political crossfire the proponents of Substantive Due Process ADMIT the words DUE PROCESS ORIGINALLY MEANT Procedural due process! They freaking admit it because historically that is what the words MEANT. You are trying to rewrite history to help your argument so GIVE IT UP.

There is no point in going any further in this dialogue with you. The words "DUE PROCESS" originally meant procedural due process and anyone who knows constitutional law and interpretation, TRULY knows it, understand the words DUE PROCESS originally meant Procedural DUE PROCESS only. There is no point in debating someone who can't even get the historical record right.

[/QUOTE]No. You are wrong. The Court is looking at the due process clause that PROTECTS liberty from arbitrary infringements. The fact that the Court measures the reasonableness of the government infringement with respect to the actual right infringed does not mean the court is conjuring up "additional freedoms."

Your idea that the Court is looking at the word "liberty" to make up "additional liberties" is absurd. It doesn't take a constitutional specialist to understand that the word "liberty" means more than freedom from physical restraint, but includes freedom from unreasonable (arbitrary) government intrusions into individual privacy. It is a simple concept--due process of law protects the people from unreasonable government infringements upon individual liberties.

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First of all you get another "F" for reading comprehension. I know the Court is looking at the due process clause and NEVER SAID OTHERWISE. SPECIFICALLY, the Court looks at the word "liberty" in the DUE PROCESS clause and asserts the word "liberty" has some substance to it to protect additional freedoms or zones of privacy from arbitrary state action. Please, I BEG OF YOU, come over to the other forum where we have lawyers who know what they are talking about and make this argument. OH I BEG YOU. You will be laughed off of the page, even by those who believe in SUBSTANTIVE DUE PROCESS.

I already cited the language from the ROE case where they focus on the word "liberty" for their decision. So ROE proves you wrong. The word "LIBERTY" IN the due process clause is what the Court focuses upon.

Here is the language from Lochner. The general right to make a contract in relation to his business is part of the liberty of the individual protected by the 14th Amendment of the Federal Constitution.

There is that word again, LIBERTY, protected by what? Oh the 14th Amendment. So where does the 14th amendment protect liberty? Oh the word "liberty" in the due process clause. So in Lochner the Court is looking at the word "liberty" in the due process clause and asserting it protects "freedoms".

Lochner again said the following:The right to purchase or to sell labor is part of the liberty protected by this amendment

So you are WRONG again on this point but I am not finished.

Pierce v. Society of Sisters. and that parents and guardians, as a part of their liberty, might direct the education of children

Oh there is that magical word liberty. Wow for a Court not focusing upon the word "liberty" in the 14th amendment they spend an awful amount of time using the word "liberty".

Pierce also said:we think it entirely plain that the Act of 1922 unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children

Meyer v. Nebraska the Court again is looking at the word "LIBERTY" in the 14th amendment. whether the statute as construed and applied unreasonably infringes the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment:
'No state * * * shall deprive any person of life, liberty or property without due process of law.'
[1][2][3] While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

The Court, as I said before, looks at the word LIBERTY and determines it has "SUBSTANCE"; namely the Court declares the word "LIBERTY" in the 14th amendment protects some area of conduct or privacy and when they do this they are giving "SUBSTANCE" to the word "LIBERTY" as it appears in the 14th Amendment. Hence, the phrase of SUBSTANTIVE due process.

So you are WRONG in asserting, if it can be interpreted you did so assert, the Court does not look at the word Liberty in the 14th amendment.

In fact you have been wrong from top to bottom. You do not really know a thing about constitutional law much less constitutional interpretation.

Well. You are wrong again. The Court did not say the word "liberty" protects liberty. The Court asserts the "DUE PROCESS CLAUSE" protects fundamental liberty interests.

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WRONG. Read the language from those cases. The Court looks at the word "liberty" determines it protects an individual sphere of "autonomy" and THEN declares the words due process require this sphere of autonomy cannot arbitrarily or unreasonably be interfered with or taken away.

See you are just wrong and confused. There are two steps in the analysis. First the Court looks at the conduct being submitted for protection and then asks whether the word "LIBERTY" in the 14th amendment affords any protection. This is EXACTLY what the Court has done in all the cases I cited above on this issue.

AFTER, finding the word LIBERTY in the 14th amendment protects the conduct or privacy interest the Court THEN determines what level of protection it deserves under the words "DUE PROCESS'.

If the sphere is fundamental, then due process, according to the Court, requires STRICT SCRUTINY. If the right is not fundamental, then a rational basis level of review is applied.

But the FIRST FREAKING STEP is looking at the word LIBERTY and determining if it affords ANY protection for the conduct. IF IT DOESN'T, then the Court NEVER gets to what DUE PROCESS requires.

So the Court looks at the word liberty in the 14th amendment and then makes a determination if the conduct/privacy interest is protected.

Once it is decided it is protected, then they go to the level of scrutiny to be applied.

This is elementary and simple. ANYONE who truly knows constitutional law and interpretation already knows this.

If you can't even get the issues right, can't get anything right, there is no point in discussing this with you.

Even your posts about Scalia's Matter of Interpretation is off the mark, primarily because you do not have one CLUE about textualism much less the HISTORICAL record regarding the words DUE PROCESS.

Have you even read his book? Do you even know what TEXTUALISM means and looks for? Do you know anything? Not on these topics. Not by a mile.

I am sure you are good at whatever law you practice but you are not well informed about constitutional law, constitutional interpretation, and the historical record regarding the words DUE PROCESS.

P.S.

You know why you are waiting on my reply to the question of what the words "validly enacted statute" means? Because I am doing the homework on the subject. I am researching the historical record, something you have yet to do, before making a post on the topic.

See I like to be "right" and to be "right" requires knowledge on the topic. A concept which has evidently escaped you.

Let's get one more thing right. I go by ONE NAME, James Madison. I have no aliases nor do I need them. I know what I am talking about!

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JM...
Your argument has some gaping holes that I need to point out to you.

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Now due process meant, in 1868, a "validly" enacted statute and a "fair trial". Consequently, all that is required to take away your liberty, life, and property is a validly enacted statute and a fair trial.

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So unless you have some evidence the words "due process" meant "substantive due process" back in 1868, which you don't, then you are in fact wrong legally, factually, and historically.

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The words "due process" also had a specific and particular meaning in 1868 when they appeared in the 14th amendment. Again the same process for examining what the words meant in 1787 will be used to determine their meaning in 1868.

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Notice the Court uses the phrase of "law of the land"? This is the exact same phrase Hamilton was addressing in my previous post. I am convinced Debra has little knowledge as to what is meant by the phrase "law of the land" as it existed in 1855. First of all the "law of the land" was used interchangeably with "due process". In fact Hamilton even acknowledged these two phrases meant the same thing. See Alexander Hamilton's Papers, Harold Syrett et al (New York, 1961-).

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1. We have the current interpretation of the words "due process" as construed by the Court through a series of cases, beginning with the Dread Scott decision in regards to the 5th amendment, and Lochner for the 14th amendment.

Your argument about the 14th amendment is based on there being no "substantive due process" at the time it was passed in 1868. However you admit that the Dred Scott case in 1857 was the first instance of "substantive due process." You then ignored Dred when talking about how it didn't exist in 1868 by citing an 1855 case.

It appears that it is you that is wrong legally, factually and historically. Substantive due process did exist in 1868 as you yourself have stated in citing Dred.

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This is so wrong. I have never met someone brutalize constitutional interpretation as much as you do. Well at least we know you'll never teach constitutional law in any law school in America, at least not a respectable or credible one with these errors.

Since "substantive due process" existed in 1868 there is no valid reason to state that it can't be included in the meaning of "due process" in the 14th.

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I appreciate your input Parados and you at least understand the issue.

Allow me to address it real quick. When I talk about "historically" I am talking about how it was "originally" understood by the drafters and society as a whole.

I submit to you the proposition in the Dread Scott case was a Novel interpretation of the words due process. Why was it novel? Because the words "due process" were not construed to mean what the Court said it meant in the Dread Scott case. Up to the time the Court rendered it's decision in Dread Scott the words "due process" were not interpreted to include any substantive component but rather it was understood "procedural due process" is all that is guaranteed.

So I submit to you Dread Scott case was a decision which broke from the normal understanding of the words "due process".

In fact the U.S. Supreme Court initially rejected the view the words "due process" in the 14th amendment had a substantive component to it. It took about 20 or more years before the Court began acknowledging the words "due process" had a substantive component to it.

They make it very clear in the early cases of U.S. Supreme Court jurisprudence they have some guidance as to what the words mean and the Court has never held it had a substantive component.

So I would submit to you Dread Scott was the exception to the rule and not the norm.

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Now here is an excerpt from the book, Constitutional Interpretation, Rights of the Individual, 6th edition.

"Supplying "liberty" with specific content is an approach known as substantive due process". Page 574.

Of course most if not all constitutional law books define substantive due process as the procedure of looking at the word "liberty" and asserting it protects conduct, hence it gives the word "substance". Hence the word Substantive Due Process.

Modern Constitutional Law 6th edition by Rotunda shares a similar meaning of "substantive due process".

So contrary to Debra's assertions she knows constitutional law or constitutional interpretation, she is quite incorrect.

Not only do the cases I referenced illustrate the Court looks at the word "liberty" and gives it "substance" by asserting it protects some areas of privacy demonstrate this is what is meant by "substantive due process" I have two constitutional law books which agree with me.

Further proof Debra is rather lost when it comes to constitutional law as it relates to substantive due process.

In fact, the Court even acknowledges this is Substantive Due Process in Lawrence v. Texas, which I will post later.

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Parados here is a case which reinforces what I said to you.

Ferguson v. Skrupa, where the Court acknowledges the "substantive" approach of Lochner was not the original understanding and meaning of the words "due process". "The doctrine that prevailed in Lochner and like cases-that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely-has long since been discarded. We have RETURNED to the ORIGINAL constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of the legislative bodies, who are elected to pass laws...But relief, if any, lies not with us but with the legislature."

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JM,
It really doesn't matter about cases later. At the time of the 14th amendment the meaning of "due process" included "substantial due process". If the writers of the 14th meant to not include it then they would have excluded it.

Your argument fails because of this simple fact and your over the top demands that "substantive due process" had to be shown prior to 1868.

It has been shown. You have admitted it existed so the basis for your argument about the 14th didn't intend to include "substantive due process" is pretty much destroyed. I am not claiming "substantive due process" exists or doesn't exist. Only using your points to show how your argument fails.

If you have a case that overturns the "substantive due process" in Dred then you might have an argument. I don't think you will find such a case.

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Lawrence v. Texas
539 U.S. 558, 123 S.Ct. 2472
U.S.,2003.
Jun 26, 2003 (Approx. 21 pages

There are broad statements of the substantive reach of liberty under the Due Process Clause

My goodness if this is not abudantly clear I am right then nothing ever will be!

Kennedy is acknowledging the "substantive" reach of something. What is this something? The substantive reach of what? The substantive reach of "liberty". Substantive due process is the process of the Court looking at the word "liberty" and determining it protects some zone of privacy, hence giving the word liberty "SUBSTANCE".

There is more.

the protection of liberty...has a substantive dimension .

The protection of "liberty" has what? A substantive dimension.

Now on an unrelated point I am halfway tempted to discuss "WHY" you are wrong about Scalia's interpretation and the conclusions he reaches but why bother? You do not know the fundamentals of textualism much less how it is applied and why it reaches a particular outcome. You couldn't even get it right about the meaning of "substantive due process" and so what is to make me think you will even get it right about textualism? From what I have tentatively scanned of your post you have gotten it wrong. You do not know what "textualism" means.

You make the same errors in refuting Scalia as you do here. You keep citing the "caselaw" but that is a red herring an irrelevant because the textualist would assert your beloved "caselaw" which holds there is a substantive component is a NON-TEXTUAL interpretation. In other words the caselaw has taken an interpretation which is not supported by the "ORIGINAL" meaning of the text. But you miss this point in the other thread just as you have missed it here.

Then you apply this revisionist history which is simply nothing short of ponderous.

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James Madison wrote:

Now here is an excerpt from the book, Constitutional Interpretation, Rights of the Individual, 6th edition.

"Supplying "liberty" with specific content is an approach known as substantive due process". Page 574.

Of course most if not all constitutional law books define substantive due process as the procedure of looking at the word "liberty" and asserting it protects conduct, hence it gives the word "substance". Hence the word Substantive Due Process.

Modern Constitutional Law 6th edition by Rotunda shares a similar meaning of "substantive due process".

So contrary to Debra's assertions she knows constitutional law or constitutional interpretation, she is quite incorrect.

Not only do the cases I referenced illustrate the Court looks at the word "liberty" and gives it "substance" by asserting it protects some areas of privacy demonstrate this is what is meant by "substantive due process" I have two constitutional law books which agree with me.

Further proof Debra is rather lost when it comes to constitutional law as it relates to substantive due process.

In fact, the Court even acknowledges this is Substantive Due Process in Lawrence v. Texas, which I will post later.

I didn't realize that a quote from one man doesn't prove anything but 2 books make it absolute. I am sure there are at least 2 law books that probably state the opposite. Because you and Deb disagree doesn't make one argument valid and the other invalid. Lack of logic does make an argument invalid.

When you claim an argument has to stand because the other side can't show you something exists then by logical standards your argument is defeated when you admit that thing does exist.

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Quote:

JM,
It really doesn't matter about cases later. At the time of the 14th amendment the meaning of "due process" included "substantial due process". If the writers of the 14th meant to not include it then they would have excluded it.

Your argument fails because of this simple fact and your over the top demands that "substantive due process" had to be shown prior to 1868.

It has been shown. You have admitted it existed so the basis for your argument about the 14th didn't intend to include "substantive due process" is pretty much destroyed. I am not claiming "substantive due process" exists or doesn't exist. Only using your points to show how your argument fails.

If you have a case that overturns the "substantive due process" in Dred then you might have an argument. I don't think you will find such a case.

Actually it is highly relevant what later cases said. It demonstrates the widely accepted meaning of the words "due process" was not what the Court in Dread Scott said it meant. This is why I said Dread Scott was the exception and not the rule, it was the anomaly. Originalism finds it's application in what was "widely accepted and understood" to mean as opposed to the "one and minute anomaly and exception to the rule or widely agreed upon meaning".

Since it was not the norm, since it was not the construction originally given to the words, then the Frames of the 14th amendment were applying the widely accepted meaning of the words due process, which simply was procedural and not substantive.

Hence, my argument is far from failing and your point sufficiently rebutted. Substantive due process was the very rare "exception" and not the norm or the rule. Why? Because it was widely accepted and known the words due process did not have a substantive component to it. This was the case before Dread Scott and the case after Dread Scott. This simple fact alone renders your point "moot" on this issue and reinforces my argument.

But you have a nice strawman argument. I may have admitted it "existed" but have always maintained it was not the widely accepted agreed upon meaning of the words "due process" but just the contrary. I have always said and maintain the "original understanding" of the words due process, in other words the widely accepted meaning of the words, was not a substantive one and telling me there is 1 exception to the rule hardly demonstrates the exception is the rule but rather the "exception".

So you are most certainly incorrect in using my points to show why my argument fails. Originalism always relies upon the widely agreed upon "meaning" of the terms. In 1868 the Dread Scott meaning of the terms "due process" was not the widely agreed upon meaning or understanding and hence, not "originalism" in any sense of the word. In fact Dread Scott was a "departure" from originalism and such a departure was not embraced until many years later and after Dread Scott and remained the anomaly, the exception, to the rule and nothing more.

So no my argument does not fail under your reasoning and I am right in making this assertion.

So the point you make is moot.

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It is called appeal to authority Parados, a logical way of arguing.

I am appealing to constitutional scholars and the last time I checked they were "authority" on the issue. Yes authority does have some weight when it comes to logical argumentation.

Additionally, you will NEVER find a constitutional law book which says Substantive Due Process is not the procedure of looking at the term "liberty" to protect some area of conduct/privacy. Why? Because that is what Substantive Due Process is, after all, and no constitutional law book is going to post erroneous information.

Even the Courts decisions I have cited tell you it is "substantive" due process. But then again this doesn't matter to you does it. Authority on a subject evidently does not matter to you and you appeal to logic? It is not logical to just summarily dismiss authority. Yes evidence and logical reasoning are essential but authority is very persuasive and useful.

I cited more than just books written by constitutional scholars. I cited cases and their language and gave examples. All of it taken together is "sufficient" to demonstrate I was right about what substantive due process means.

Second of all what on earth does your last line have to do with anything? Absoultely nothing since it is not applicable to anything I said.

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JM

LOL.. yeah.. appeal to authority.

The AUTHORITY (and you agreed) says that due process at the time of passage of the 14th amendment included "substantive due process" Since the authors didn't remove "substantive due process" from the "due process" clause then your argument that Roe was activist has no merit.

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