Activist Judges

Remember we are talking about "judicial activism" and the meaning of it. Particularly, judicial activism is an interpretation which is not supported by the words of the text. 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.

Originalism is how the words were "understood" by the Framers at the time of drafting or by "society" as a whole. Originalism does not necessarily concern itself with what court's say. You are making the same tired and misplaced argument as Debra.

You have to make this "assumption" otherwise your argument sucks, well it sucks anyway because the Framers of the 14th amendment DID NOT agree with the Dread Scott's construction of the words "due process". For an illustration of this you will either (1) Visit the library of Congress, consult the writing of some men of the time which define the terms as "procedural fairness" only, (2) Visit the library of Congress and consult the writings of some of the Framers of the 14th amendment as to what they understood the words "due process" to mean, and it will be clear in 1868 they understood the words to mean "procedural fairness", (3) Get a book devoted on the subject which has already done this for you or (4) Read one of Scalia's opinions where he gives the cited authority for you. But you have to make this assumption because if the words "due process" as defined by Dread Scott were not "understood" by the Framers to mean "substantive" than your argument falls apart. Especially when the Court's construction in the Dread Scott case WAS NOT followed for YEARS, in fact 30 years. The fact is the "one decision" did not become incorporated into the drafters of the 14th amendments "original understanding" of what the words "due process" meant. So without this assumption your argument falls apart, and rightfully so. It is incorrect.

Parados still missing the forest for the trees. The "authority" for "originalism" is not one case and how it construes the terms in isolation. This is why your entire argument is a weak one.

Originalism is how the words were "understood" by the Framers at the time of drafting or by "society" as a whole. Originalism does not necessarily concern itself with what court's say. You are making the same tired and misplaced argument as Debra.

You make the same flawed assumption Debra makes. You "assume" the Dread Scott decision in interpreting the terms "due process" qualifies as "originalism". Well the fact is Dread Scott does not qualify as "originalism" for the meaning of the words "due process". Since this assumption is false, your entire argument, as I said before, is moot.

You seem to think that because substantive due process was found in the Dread Scott case then this must be the "original understanding" of the meaning of the terms.

Nothing could be farther from the truth and consequently renders your point moot.

The FACT is the original meaning, in other words the meaning understood by the Framers or society as a whole, was that due process required only "procedural" fairness. The fact is Dread Scott was a BREAK from the original meaning of the terms "due process".

The fact that it was a "break" from the original understanding of the words "due process" means, guess what, Dread Scott was a case of "judicial activism" just as "Roe v. Wade" was an instance of judicial activism. Why? Because Roe v. Wade departed from the original meaning of the terms "due process".

See it is short sighted and makes little sense to cite a case where substantive due process was applied ESPECIALLY when the case was a "novel" disposition, a new interpretation of the words "due process".

Why was it novel? Because that is not how the words "due process" were originally understood nor were they understood this way WHEN the case was decided.

What does this mean? It means Dread Scott was decided incorrectly as it took an interpretation of the words "due process" which defied it's "original" meaning.

Now of course you were simply remissed to notice the assumption underlying your argument primarily because you really do not understand textualism nor what "originalism" means. Had you understood both, or even possessed a rudimentary comprehension of what "originalism" means, then you would not have cited a case where the Court departs from the "original meaning" of the terms "due process".

So not only is your position my evaluation Roe v. Wade was activist wrong but it is premised upon a fundamentally flawed assumption, that "substantive due process" was originally understood in the meaning of the words "due process". It wasn't and you would help yourself out if you actually bothered to investigate this issue.

''It may prevent confusion, and relieve from repetition, if we point out that some of our cases arose under the provisions of the Fifth and others under those of the Fourteenth Amendment to the Constitution of the United States. While the language of those Amendments is the same, yet as they were engrafted upon the Constitution at different times and in widely different circumstances of our national life, it may be that questions may arise in which different constructions and applications of their provisions may be proper.'' French v. Barber Asphalt Paving Co., 181 U.S. 324, 328 (1901).

Additionally, this makes the silly idea the "framers did not specifically exclude it" moot. Because the Dread Scott case went against the original meaning and understanding of the words "due process" and the Framers did not understand the words "due process" to have a substantive component is sufficient. Oh you labor under such an erroneous assumption. It is your contention that the Framers of the 14th amendment actually "AGREED" with the Court's construction of the words "due process" in the Dread Soctt case so as to incorporate the Courts interpretation of the words into the 14th amendment.

You have to make this "assumption" otherwise your argument sucks,

well it sucks anyway because the Framers of the 14th amendment DID NOT agree with the Dread Scott's construction of the words "due process". For an illustration of this you will either (1) Visit the library of Congress, consult the writing of some men of the time which define the terms as "procedural fairness" only, (2) Visit the library of Congress and consult the writings of some of the Framers of the 14th amendment as to what they understood the words "due process" to mean, and it will be clear in 1868 they understood the words to mean "procedural fairness", (3) Get a book devoted on the subject which has already done this for you or (4) Read one of Scalia's opinions where he gives the cited authority for you. But you have to make this assumption because if the words "due process" as defined by Dread Scott were not "understood" by the Framers to mean "substantive" than your argument falls apart. Especially when the Court's construction in the Dread Scott case WAS NOT followed for YEARS, in fact 30 years. The fact is the "one decision" did not become incorporated into the drafters of the 14th amendments "original understanding" of what the words "due process" meant. So without this assumption your argument falls apart, and rightfully so. It is incorrect.

Additionally, the words "substantive" due process did not even exist in 1868. Relevance? You are asking to "exclude" a "term" of art they had no knowledge of!

Had you actually done some research on the subject you'd find some legal experts disagree with the notion Dread Scott was the first case to employ "substantive" due process.

In fact this may be a legitimate point as ALL of the constitutional law books I have which are devoted to the origins of substantive due process do not cite Dread Scott but rather Lochner v. New York or some other obscure case decided AFTER 1868.

Now let's examine your comments about appeals to authority.

Look the people who compiled these books are not constitutional idiots. If I want to compile a book on constitutional law, publish it, and want it used in law school classes, as the two books I mentioned are, then it is imperative the book be authored by individuals who are experts in constitutional law, who actually "know" constitutional law. These books were not compiled by coal minders in the hills of West Virginia which do not have a clue about constitutional law. These books and the contents in them were compiled by people who know what they are talking about.

If I want a professional medical opinion I am not going to consult the view of someone without a medical degree.

While it is true authority is not entirely dispositive it is useful and persuasive. Your mockery of it demonstrates a rather perilous position. I suppose when you want to be diagnosed whenever you feel sick you consult your drunk neighbor who quit high school and is still working on his GED 15 years later.

No you don't nor would you do such a thing for a good reason, he does not have a clue what he is doing, he is not "knowledgeable" on the subject. The people which have authored these two books are knowledgeable on the subject and for good reason.

Additionally, I even cited several Supreme Court cases which demonstrate the word "liberty" is being looked at in substantive due process clause caes. But someone who does not understand how authority is relevant much less how it works, such as yourself apparently, is probably incapable of being persuaded of anything because, after all, appealing to authority will always factor in to the equation.

The understanding which the founders of the American constitutional system, and those who wrote the due process clauses, brought to the subject they derived from Coke, who in his Second Institutes expounded the proposition that the term ''by law of the land'' was equivalent to ''due process of law,'' which he in turn defined as ''by due process of the common law,'' that is, ''by the indictment or presentment of good and lawful men . . . or by writ original of the Common Law.'' 7 The significance of both terms was procedural, but there was in Coke's writings on chapter 29 a rudimentary concept of substantive restrictions, which did not develop in England because of parliamentary supremacy, but which was to flower in the United States.

Now it appears you want to raise the bar. I can repeat your words over and over and over.. If you really want to argue with yourself.. OK.

You said "some" evidence. You admit that "some" evidence exists. Now you are arguing that "some" evidence isn't enough. Quite funny really.

How can originalism NOT be affected by previous court rulings?

The people of the United States erected their Constitutions, or forms of government, to establish justice, to promote the general welfare, to secure the blessings of liberty; and to protect their persons and property from violence. The purposes for which men enter into society will determine the nature and terms of the social compact; and as they are the foundation of the legislative power, they will decide what are the proper objects of it: The nature, and ends of legislative power will limit the exercise of it. . . .

There are acts which the Federal, or State, Legislature cannot do, without exceeding their authority. There are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty, or private property, for the protection whereof of the government was established. An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the power, on which it is founded. . . .

It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it. The genius, the nature, and the spirit, of our State Governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them.

Before the ratification of the Fourteenth Amendment, substantive constitutional review resting on a theory of unenumerated rights occurred largely in the state courts applying state constitutions that commonly contained either due process clauses like that of the Fifth Amendment (and later the Fourteenth) or the textual antecedents of such clauses, repeating Magna Carta's guarantee of "the law of the land." 5 On the basis of such clauses, or of general principles untethered to specific constitutional language, state courts evaluated the constitutionality of a wide range of statutes.

Thus, a Connecticut court approved a statute legitimating a class of previous illegitimate marriages, as falling within the terms of the "social compact," while making clear its power to review constitutionality in those terms. Goshen v. Stonington, 4 Conn. 209, 225-226 (1822). In the same period, a specialized court of equity, created under a Tennessee statute solely to hear cases brought by the state bank against its debtors, found its own authorization unconstitutional as "partial" legislation violating the state constitution's "law of the land" clause. Bank of the State v. Cooper, 2 Yerg. 599, 602-608 (Tenn. 1831) (Green, J.); id., at 613-615 (Peck, J.); id., at 618-623 (Kennedy, J.). And the middle of the 19th century brought the famous Wynehamer case, invalidating a statute purporting to render possession of liquor immediately illegal except when kept for narrow, specified purposes, the state court finding the statute inconsistent with the state's due process clause. Wynehamer v. People, 13 N. Y. 378, 486-487 (1856). The statute was deemed an excessive threat to the "fundamental rights of the citizen" to property. Id., at 398 (Comstock, J.). See generally, E. Corwin, Liberty Against Government 58-115 (1948) (discussing substantive due process in the state courts before the Civil War); T. Cooley, Constitutional Limitations *85%*129, *351%*397.

Even in this early period, however, this Court anticipated the developments that would presage both the Civil War and the ratification of the Fourteenth Amendment, by making it clear on several occasions that it too had no doubt of the judiciary's power to strike down legislation that conflicted with important but unenumerated principles of American government. In most such instances, after declaring its power to invalidate what it might find inconsistent with rights of liberty and property, the Court nevertheless went on to uphold the legislative acts under review. See, e.g., Wilkinson v. Leland, 2 Pet. 627, 656-661 (1829); Calder v. Bull, 3 Dall. 386, 386-395 (1798) (opinion of Chase, J.); see also Corfield v. Coryell, 6 F. Cas. 546, 550-552 (No. 3,230) (1823). But in Fletcher v. Peck, 6 Cranch 87 (1810), the Court went further. It struck down an act of the Georgia legislature that purported to rescind a sale of public land ab initio and reclaim title for the State, and so deprive subsequent, good faith purchasers of property conveyed by the original grantees. The Court rested the invalidation on alternative sources of authority: the specific prohibitions against bills of attainder, ex post-facto laws, laws impairing contracts in Article I, § 10 of the Constitution; and "general principles which are common to our free institutions," by which Chief Justice Marshall meant that a simple deprivation of property by the State could not be an authentically "legislative" act. Fletcher, 6 Cranch, at 135-139.

Fletcher was not, though, the most telling early example of such review. For its most salient instance in this Court before the adoption of the Fourteenth Amendment was, of course, the case that the Amendment would in due course overturn, Dred Scott v. Sandford, 19 How. 393 (1857). Unlike Fletcher, Dred Scott was textually based on a due process clause (in the Fifth Amendment, applicable to the national government), and it was in reliance on that clause's protection of property that the Court invalidated the Missouri Compromise. 19 How., at 449-452. This substantive protection of an owner's property in a slave taken to the territories was traced to the absence of any enumerated power to affect that property granted to the Congress by Article I of the Constitution, id., at 451-452, the implication being that the government had no legitimate interest that could support the earlier congressional compromise. The ensuing judgment of history needs no recounting here.

After the ratification of the Fourteenth Amendment, with its guarantee of due process protection against the States, interpretation of the words "liberty" and "property" as used in due process clauses became a sustained enterprise, with the Court generally describing the due process criterion in converse terms of reasonableness or arbitrariness. That standard is fairly traceable to Justice Bradley's dissent in the Slaughter House Cases, 16 Wall. 36 (1873), in which he said that a person's right to choose a calling was an element of liberty (as the calling, once chosen, was an aspect of property) and declared that the liberty and property protected by due process are not truly recognized if such rights may be "arbitrarily assailed," id., at 116. 6 After that, opinions comparable to those that preceded Dred Scott expressed willingness to review legislative action for consistency with the Due Process Clause even as they upheld the laws in question. See, e.g., Bartemeyer v. Iowa, 18 Wall. 129, 133-135 (1874); Munn v. Illinois, 94 U.S. 113, 123 -135 (1877); Railroad Comm'n Cases, 116 U.S. 307, 331 (1886); Mugler v. Kansas, 123 U.S. 623, 659 -670 (1887). See generally Corwin, Liberty Against Government, at 121-136 (surveying the Court's early Fourteenth Amendment cases and finding little dissent from the general principle that the Due Process Clause authorized judicial review of substantive statutes). . . .

The Due Process Clause of the Fourteenth Amendment provides that "[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law." Petitioners [489 U.S. 189, 195] contend that the State 1 deprived Joshua of his liberty interest in "free[dom] from . . . unjustified intrusions on personal security," see Ingraham v. Wright, 430 U.S. 651, 673 (1977), by failing to provide him with adequate protection against his father's violence. The claim is one invoking the substantive rather than the procedural component of the Due Process Clause; petitioners do not claim that the State denied Joshua protection without according him appropriate procedural safeguards, see Morrissey v. Brewer, 408 U.S. 471, 481 (1972), but that it was categorically obligated to protect him in these circumstances, see Youngberg v. Romeo, 457 U.S. 307, 309 (1982). 2

But nothing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without "due process of law," but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means. Nor does history support such an expansive reading of the constitutional text. [489 U.S. 189, 196]

Like its counterpart in the Fifth Amendment, the Due Process Clause of the Fourteenth Amendment was intended to prevent government "from abusing [its] power, or employing it as an instrument of oppression," Davidson v. Cannon, supra, at 348; see also Daniels v. Williams, supra, at 331 ("`"to secure the individual from the arbitrary exercise of the powers of government,"'" and "to prevent governmental power from being `used for purposes of oppression'") (internal citations omitted); Parratt v. Taylor, 451 U.S. 527, 549 (1981) (Powell, J., concurring in result) (to prevent the "affirmative abuse of power"). Its purpose was to protect the people from the State, not to ensure that the State protected them from each other. The Framers were content to leave the extent of governmental obligation in the latter area to the democratic political processes.

Precisely why I don't go to you for a legal opinion. (Sorry, but your attitude deserves that response.)

made no argument that Dred was "originalism." I only said that Dred shows that "due process" was not restricted to procedure only in 1868 as you claimed and then went off about others not being able to show "substantive" existed. It DID exist because you brought it up later by bringing up Dred and all your arguments to downplay it don't destroy the fact that it existed.

Which original are you referring to? I am only pointing out that when the 14th was written, "substantive due process" had been ruled as part of it. The writers of the 14th were free to respond to it and make sure it wasn't included. They did no such thing.

I have never discussed the original framers only the 14th. Your point is what appears to be moot.

That would be called PRECEDENT in most instances and not disregarded out of hand by lawyers or legislators.

Says you and some books on that side of the issue. Books on the other side say differently which was my point about "authority." We can't ask the people that wrote it. We can only interpret their writings. Such interpretation is often done to support one's own opinion. ''It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process 'due process of law' by its mere will.'' Murray's Lessee v. Hoboken Land and Improvement Co. 59 U.S. (18 How.) 272, 276 (1856)

subject only to the specific prohibitions of the written constitution. The ''vested rights'' jurists thus found in the ''law of the land'' and the ''due process'' clauses of the state constitutions a restriction upon the substantive content of legislation, which prohibited, regardless of the matter of procedure, a certain kind or degree of exertion of legislative power altogether

The LIBERTY protected by the Fourteenth Amendment finds it protection, not in the word LIBERTY itself, but in the phrase "due process of law" that LIMITS the government with respect to both HOW and WHY it is effectuating the deprivation.

The fact is I am right and so I don't really care .

The fact is I am right and so I don't really care .

The fact is I am right and so I don't really care .

The fact is I am right and so I don't really care .

The fact is I am right and so I don't really care .

The "purpose" of due process was to provide "protection". I think this is something both Debra and I can agree upon. At least we agree upon something.

But it is to afford "protection". Where her and I disagree is what "kind" of protection.

I take an originalist approach and assert it is only "procedural".

Joe from Chicago:

The original understanding of the meaning of the words Privileges and Immunities in the 14th amendment was talking about the "Bill of Rights".

Joe from Chicago:

The original understanding of the meaning of the words Privileges and Immunities in the 14th amendment was talking about the "Bill of Rights".

What is the purpose of due process?

Well this reasoning deserves the following response, foolish and lunacy. Sorry but your attitude deserves such a response. I don't care if you come to be about a legal opinion. I could not care less. The fact is I know I am right about what substantive due process means and what the Court looks at under substantive due process. I am writing in articulating the process the Court looks at to determine if a right is fundamental.

The fact is I am right and so I don't really care if you do not come to me for a legal opinion. Anybody who reasons as you do is not worthy of good legal opinions from good lawyers but rather should be relegated to those coal miners in W. Virginia. . . .

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