Activist Judges

Time to take a step back and take a breather.

First point is there is a large grey area where substantive and procedural due process overlap. The line is not clear.

Life, liberty and property must have meaning otherwise there is no reason to protect them with due process.

The only way that a court can decide if due process was followed is to examine if a liberty was denied due process. The only way to decide on liberties is to first define liberty. The same goes for property and life. Life is pretty self explanatory but property and liberty require examination. In Dred, a slave was defined as property. In Roe, privacy was defined as a liberty.

Deb and JM seem to be arguing different ends of the extreme. It is a 2 part test. First the liberty must be defined as JM said but then once defined it is protected by due process as Deb as said.

I think we can all agree that if something is a liberty then the only way the govt can take it away is by due process. Liberty must have meaning and the only valid constitutional way to define those liberties is with the court.

The entire argument seems to be about what is a liberty. Is privacy a liberty or not?


I do have a problem with this statement. Because something is defined by the court as a liberty doesn't make it an "additional liberty." It was a liberty all along. The question had just never arisen before.

Right Debra despite the fact the case law I cited proves you are wrong. So if you want to bow out it would not at all bother me. Especially since you are so adamant about being right when even the cases I cited say you are clearly wrong. There is no point in discussing this with someone who can't admit they are wrong even when the U.S. Supreme Court says they are wrong and still proclaim to be right.

Interesting comment coming from someone that classifies USSC decisions as "judicial activism."

Parados:

I have not been arguing the different end of an extreme. If you review my posts, you will see that I have always said that we identify the life, liberty, or property interest affected by the challenged state statute as a step in a due process analysis. As I pointed out, identifying the life, liberty, or property interest affected is an integral part in both a procedural and a substantive due process analysis because some rights are obviously more important than others and are entitled to greater protection of due process of law.

But in the final analysis, what protects the identified life, liberty, or property interest? It's . . . drum roll . . . due process of law.

Despite JM's assertion, "Liberty" doesn't protect liberty. "Due process of law" protects liberty. I'm not arguing an extreme--I'm arguing the obvious and that's the crux of my disagreement with JM. He refuses to acknowledge that "due process of law" has anything to do with a substantive due process analysis. How silly is that?







I also have a problem with JM's statement because it demonstrates his fundamental misunderstanding of due process of law.

Due process of law protects life, liberty, and property from arbitrary deprivations.

The word "liberty" encompasses the entire universe of liberty. Some liberty interests are more important than other liberty interests. Our courts don't engage in the process of DEFINING the contours of the right at issue to determine whether its protected or not protected because ALL life, liberty, and property interests are protected.

Every single statute or regulation that you can think of affects life, liberty, or property in one way or another. The ultimate issue is not whether life, liberty, or property is protected by the due process clause--the issue is the level of protection afforded by due process.

Look at seatbelt laws, for example. By state statute, the state requires you to wear a seatbelt when you drive your vehicle on a public street or highway. If you fail to wear your seat belt as required by law, you might be subjected to a criminal or civil penalty.

Seat belt laws affect liberty interests. The compulsion of the state is requiring you to do something or face a penalty (perhaps jail or a significant fine) if you fail to comply with the law. You are no longer free or at liberty to drive down the street without wearing a seat belt even if you find a seat belt to be uncomfortable. You are no longer free or at liberty to decide for yourself whether or not you want to wear a seat belt for your own safety. The state has used its police powers to affect your liberty interests.

When JM asserts "the plain english guarantees only 'due process' and not any additional liberties," he isn't making any sense. He totally misunderstands "due process." There is no question that the due process clause protects ALL LIBERTY--great and small.

If the freedom to drive down the street unfettered by a seat belt is deemed a fundamental liberty interest, then due process of law requires the state to have a compelling interest in requiring the seat belt and the means used (e.g., penalties used to compel compliance with the law) must be necessary and narrowly tailored to serve that compelling government interest.

If the freedom to drive down the street unfettered by a seat belt is NOT a fundamental liberty interest, then due process of law requires the law to be rationally related to legitimate government interest.

So the very essense of JM's beef (which he misunderstands himself) is not whether due process protects "additional liberties" because ALL LIBERTY is protected--the ultimate issue under the due process clause is the level of protection it affords. There is no escaping this fact: Due process of law protects all individual rights from arbitrary deprivations because--at a MINIMUM--all laws must be rationally related to some legitimate government interest.

***

Now, lets look at Lawrence v. Texas.

Criminal laws always affect individual liberty interests no matter how you define those interests. The substance of the Texas statute at issue criminalized sexual relations between two consenting adults of the same sex.

Regardless of how anyone desires to define the liberty interest that was affected by the Texas criminal statute, the bottom line is the Supreme Court ruled that the statute did not even meet the minimal rational basis test. The Court could not find a LEGITIMATE state interest that could possibly justify the criminal statute. Due process of law concerns itself with fairness, reasonableness, and justice. It abhors arbitrary statutes that serve no legitimate state interest.

I don't understand the big outcry about the "right to privacy." The very essense of liberty is the freedom that every person has to go about living one's private life as one chooses without UNREASONABLE government intrusion. Reasonable intrusions are allowed; unreasonable intrusions are not allowed by the law of the land. Ultimately, it is the court's duty to determine the reasonableness of the government intrusion in order to secure life, liberty, and property equally for everyone and to prevent the government from using its power as an instrument of oppression.

YES! Parados you are right! Sarcasm aside, and let me tell a joke, "I know I am right!" But "you sir" have gotten it "right!" The cases I have cited demonstrate the Court first looks to see if the word "liberty" protects the interest at issue in the case before them. Every single case I have cited and the language I have cut and pasted from those cases clearly supports what I have been saying on this point. The Court's very first inquiry is what "substance" does the word liberty possess and does it protect the "interest" before us. In Griswold, Roe, Lawrence, Loving, and so forth each appellant or appellee came to the Court asking the Court to protect their "interest". In Roe the interest was "freedom to have an abortion," In Griswold it was a, "Marital right of privacy to use contraceptives," in Loving it was, "Freedom to marry a member of the opposite race," and in Lawrence it was, "freedom to have consensual sex with a member of the same sex who is able to consent."

In Lawrence, Roe, Meyer, and the other cases the Court tells us the word "liberty" protects these interests. They tell us this in Lawrence, see my citations from case in other posts, Roe (again see my citations from case in other post) Meyer and Pierce (again see my excerpted snippets from those cases) and I am right in stating this is the first step in the analysis. The first step is to look at the word "liberty" and assess whether or not the interest at issue in the case is protected by this liberty.

Now to determine whether or not the "interest" at issue before them is protected by the word "liberty" they engage in another inquiry. They look to see if the interest is one, Griswold v. Connecticut:protects those liberties so rooted in the traditions and conscience of our people as to be ranked fundamental.

affords only those protections "so rooted in the traditions and conscience of our people as to be ranked as fundamental." Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934) (Cardozo, J.).

So the Court's first inquiry is whether or not the interest before them is protected by the word liberty and to answer this question they ask if the interest is one those liberties so rooted in the traditions and conscience of our people as to be ranked fundamental....so rooted in the traditions and conscience of our people as to be ranked as fundamental."

In each case, Roe, Loving, Griswold, and others the Court found the interest to be one rooted in the traditions and conscience of our people to be ranked as fundamental and therefore, it is an interest protected by the word "liberty" in the 14th amendment.

AFTER, the Court has found the interest is protected THEN the Court seeks to apply a particular level of protection, such as strict scrutiny for fundamental rights or rational basis review for interests which are not fundamental (Lawrence is the latter level of review).

Now here is where I disagree with you.



It really does not matter what meaning is given to them. Why? Because the provision is allowing the state to take away WHATEVER meaning you apply so long as they give due process. The plain english is abundantly clear and is guaranteeing only 1 thing, due process.

"No state shall deprive any person of life, liberty, or property WITHOUT due process of law." The clause is not guaranteeing you liberty, life, or property, it is guaranteeing you "due process". The phrase is not saying, "You absolutely and certainly have liberty, life and property," but rather is saying, "you absolutely have due process before they are taken away."

I will use a parallel example. The clause is not guaranteeing that you will have "life". The clause is not stating, "You absolutely have life." If the phrase was making this statement then there'd be no contemplation by the phrase that you could lose your life and the phrase clearly says you can lose your life. "No state SHALL DEPRIVE any person of life," as you can see the very phrase contemplates the notion you can lose your life and is affording you some protection before your life is taken "away". The protection is "due process". So the phrase is not guaranteeing you "life" only "due process."

Similarly speaking then the same can be said and is true of the words "liberty and property". The clause is not guaranteeing you liberty nor property, if it were then it would not contemplate the fact the state can take it away from you with the words, "No state SHALL DEPRIVE," clearly contemplates the state CAN take your "life, liberty and property". So the clause is not guaranteeing you any additional liberty, property, or life, in fact it is not guaranteeing any of them at all. The clause clearly demonstrates the state CAN take each one from you but so long as they give you "due process". Due process is the ONLY guarantee.

This is why to textualists, like myself, Scalia, and others, the very notion of "substantive due process" is extra textual. Substantive due process looks at the word "liberty" and determines if the interest is protected by teh word "liberty". But as I have just been at pains in demonstrating, the word "liberty" is not guaranteeing nor affording any additional protection for other areas of privacy or interests because the wording of the clause is guaranteeing "due process" only. The very act of looking at the word "liberty" and determining if some interest is protected is extra textual because the plain english of the clause, as I have already gone to lengths in showing, does not guarantee or seek to protect any interest but only seeks to guarantee you due process.

So then the inquiry becomes one of "what does due process mean?" Does due process mean procedural protection only? Or does it mean strict scrutiny and rational basis review?

My contention is the former and not the latter. My contention is the words "due process" guarantee only "procedural" protection and does not require strict scrutiny or rational basis review.

What is my proof? Well earlier you asked why look at the Magna Charter and the meaning of the words in 1791 for definition in 1868? That is a very good question.

My contention is the original meaning in 1791 was the original meaning of the words in 1868. What is my proof? Well some of the cases you provided is my proof. As late as 1856 the U.S. Supreme Court was still going of off the "original meaning" of the words "due process". Primarily, it was the meaning of the words as used in the Magna Charter. Hence, it was said:[/B]The words "due process of law" are intended to convey the same meaning as the words "by the law of the land" in Magna Charta. Murray's Lessee v. Hoboken Land and Improvement Co. 59 U.S. (18 How.) 272, 276 (1856)

In fact you provided a case where the Court tells us as much along with what the "original meaning" meant.

Murray's Lessee v. Hoboken Land and Improvement Co. 59 U.S. (18 How.) 272, 276 (1856)

Here is what the Court said about the words "due process" in 1856.

This meant, by process of law, as then understood, charge, defence, judgment before and by a legally constituted court....It is difficult, at this day, to trace with precision all the proceedings had for these purposes in the earliest ages of the common law....This brief sketch of the modes of proceeding to ascertain and enforce payment of balances due from receivers of the revenue in England.... due process of law is a restraint alike on the legislative, executive, and judicial powers of the government, and hence cannot be so construed as to permit congress to make any process "due process of law," but it will be determined whether a process is conformable to that provision

All of this is "procedure". Hence the claim by myself and others the words "due process" originally meant "procedural" protection only. The Court is looking at the "PROCESS" and nothing more. Why? Because the words "due process" was concerned only with the "process" which is "procedures". Hence, due process originally meant, and was understood to mean in 1856 (only 12 years before 1868) "procedural protection/process must be followed."

So one of the most important parts of the case, dare I say ESSENTIAL part of the case, was the illumination of what the words "due process" meant. The words "due process" originally meant "process" i.e. procedural protection. The Court in 1856 accepted and embraced this meaning in this case, in fact they even use language indicating this was the original meaning of the words when they say, "as then understood." And it is the original meaning the Court applies in the case.

Then the Court gives us a laundry list to support this is the original meaning. Co. Lit. 2 Inst. 47, Magna Charta, chs. 8 and 29; 2 Kent's Com. (5th Ed.) 13; Story on the Const. § 1783; Sullivan's Lectures, chs. 39 and 40; Taylor v. Porter, 4 Hill, 146; Fletcher v. Peck, 6 Cranch, 138; Bank of Col. v. Oakley, 4 Pet. Cond. R. 443; 4 Cranch, 439; Van Zandt v. Waddell, 2 Yerger, 260; Jones's Heirs v. Perry et al. 10 ibid. 59; Bank of the State v. Charles Cooper et al. 2 ibid. 599; Lane v. Dorman, 3 Scam. 238, 241; White v. White, 5 Barbour's S. C. R. 481-483; Holden v. James, 11 Mass. 404.

Hence, the original meaning meant "procedural" protection only and nothing more. So any meaning outside of this original meaning is not permissible, at least that is the point I am making, which would leave substantive due process on the proverbial door steps so to speak.

Good post Parados.

Blah, blah, blah Debra. You still do not understand that the issue being discussed is whether or not the words "due process" mean the state cannot arbitrarily take away these things.

If the words "due process" guarantee only procedural protection, as I contend, then this would not allow for the "arbitary" point you make as it is not what "due process" ORIGINALLY meant.

If actually bothered to stop and read my posts you'd see we are actually in agreement. The first step is to assess whether the "interest" is included in the meaning of the word "liberty" in the 14th amendment(a step you admit the Court uses) a step I have been asserting they ALWAYS do.

To determine if the interest is within the meaning of "liberty" the Court asks whether the interest is "so rooted in our traditions and conscience as to be deemed fundamental." If the interest is so rooted in our traditions and conscience as to be deemed fundamental, then the Court concludes the interest is within the meaning of the word "liberty". I have made and said all of this before.

Now where you miss the forest for the trees is you get caught up on my using the word "protected". I have said the Court asks whether or not the interest is "protected" by the word "liberty" and apparently this was poor word selection as it impeded your ability to grasp the larger picture and you instead focused on the minutae, despite the fact ALL of the case law I cited should have made clear I was not using the word "protection" in the same sense as you were construing it! I was using the word "protection" to mean the Court finds the interest is within the "meaning" of the word liberty. As I said had you actually stopped, read slowly and carefully, and took the context into account then you'd get a better idea of what I was saying, rather than focusing on one tiny word and using this tiny word to define my entire argument.

Now could I have been more deliberate in choosing a better word? Yes but time constraints get the best of all of us and not one of us can brag we were "very careful" as to make no mistake in word selection in all of our posts.

Now after the Court finds the interest to be "WITHIN" the meaning of the word "liberty" THEN they apply a particular level of scrutiny, either rational basis or strict scrutiny.

Again had you actually bothered to read rather carefully my posts then you'd see we actually agree on the two step analysis and on how it is "protected".

Now since we both agree the first step is whether or not the interest is within the word "liberty" and the next is what level of protection to apply, strict scrutiny or rational basis review, can we progress along with the argument?

What is the meaning of "due process"? I know how the Court construes the phrases TODAY. I KNOW due process requires STRICT SCRUTINY for fundamental rights and RATIONAL BASIS review for rights that are not fundamental (I HAVE in fact said this before as well in multiple prior posts).

I am not interested in what the Court TODAY says it is, what I am interested in is whether or not the interpretation is RIGHT.

To determine it is right or wrong requires an appeal to a standard. My standard is "originalism". My argument is the Court's interpretation of the words TODAY is not what they originally MEANT and therefore, the Court's interpretation TODAY is WRONG.

Since the words "due process" only meant "procedural protection" and nothing more, any attempt to add more to it is wrong.

Hence, there is no substance to the word "liberty" as the Clause is not GUARANTEEING OTHER FORMS OF CONDUCT are protected but rather is GUARANTEEING, and ONLY GUARANTEEING due process.

So "substantive" analysis is textually wrong and so is the application of strict scrutiny and rational basis review. The substantive component violates the meaning of the plain english of the clause as only due process is guaranteed, and the latter violates the original meaning of due process.

Can we argue about these issues now?

Parados I do not make the allegation all or most U.S. Supreme Court decisions are instances of judicial activism. So I think you have greatly exaggerated my statement and point on this issue if that is what you think.

Some opinions are judicial activism and some are not.

And there you have it folks..


Deb and James can argue forever while being on the same side of the issue...

Well then, strictly as a point of argument....

Every case you have cited I declare to be "judicial activism" and as such it is moot and has no relevence.

I'm right and you are wrong.. Nyah nyah nyah, boo, boo.

James Madison wrote:
What if it is NOT life, liberty, or property? Without defining those there is no way to test if it needs due process or not?

Hypothetical, lets say a govt passes a law that anyone caught eating their boogers will have their picture posted on public website and in the newspaper to shame them. Can a person challenge it based on your reading of the clause solely because they had no due process? Or do you first have to define what they lost as a liberty before you can get to the due process question?

Oh very wrongly decided. There is a lot of literature indicating the drafters of the 14th amendment understood the words "privileges and immunities" of the United States to mean the original Bill of Rights.

Here is another fascinating idea. The original understanding of the words "Equal Protection of the law," do not come close to what the Court has construed them to mean today.

There is a bunch of literature on both of these issues I can point you to if you'd like. In fact hundreds of law review articles have been written on the original meaning of due process and the original meaning of equal protection and so forth.

In fact Laurence Tribe makes an argument as to why originalism should not be followed. In fact he admits the Court has in fact abandoned the original understanding of the words due process and equal protection but seeks to justify such a departure. He borrows some from Robert Dworkin's 1989 work (actually Dworkin's 1989 book) on the issue where Dworkin makes the argument they are "principles" and as such deserve much more liberal interpretations. Both argue against "originalism" from this perspective.

You have not seen this argument made here partly because those opposed do not really understand "originalism," do not know where to look for an original meaning, or the philosophy of textualism. Dworkin and Tribe both admit the "original meaning" is vastly different from the Court's construction of the terms "due process and equal protection" TODAY but seek to justify it by arguing these clauses are not "rules" but "principles".

Of course I disagree we are talking about principles. The U.S. Constitution is not a document of principles but of "rules" for the governemnt to follow.

Others have made the argument the drafters did not want an "original" approach to be taken into consideration while interpreting the 14th amendment. This is also a good rebuttal and again it is an argument you have not seen made precisely because the opposing side really does not understand originalism or textualism. There exists several law review articles on this issue.

Still others argue from a philosophical view but to get there they first address originalism. In this field they deal with the issue of originalism by suggesting it is not required anywhere in the U.S. Constitution an originalist meaning and understanding is to be applied to the terms. Once again this argument has not been made by the opposing side for the reasons I noted before. Furthermore, this view can also be found in law review articles.

Notice, however, each objection goes right to the issue of originalism where as much of the objections here to it are not only out in left field but "in the bay" outside of the stadium.

Of course Scalia has responded to each and even to the last objection. Scalia has a "philosophy" of his own as to why original meaning and understanding, while not constitutionally required, nevertheless still needs to be applied. Since Scalia's view is philosophical, and the opposing view also has a philosophical component, I addressed them under the notion of the "philosophical" view.

For Scalia originalism in the 14th amendment is needed to keep the judiciary in check and either preclude or abate their attempts or desires to legislate from the bench. Scalia is correct in making this argument as if followed it would result in less legislating from the bench.

But Gordon Wood, Harvard historian, questions whether or not originalism is really a remedy at all. According to Gordon Wood originalism would address the "symptoms" of judicial activism but not the "cause" of it. Wood devotes a considerable amount of time demonstrating how the "cause" of judicial activism originated in the judicial psyche with the common law and in the late 1700's in the U.S. According to Wood, it has gone on for so long unabated that judicial activism is now glorified by a considerable portion of society as opposed to reviled with contempt as it was way back in the day. So according to Wood we need a complete reformation of the psyche of the judicial branch and not just a remedy for the symptoms.

Of course Scalia would remark originalism can do both if embraced.

Yes, the person can challenge it based on the fact they were not afforded "procedural" protection.

The problem with requiring that the text reading be so precise is it quickly leads to all kinds of problems that conservatives don't want to address. If as you claim we have to follow the text exactly and read it as understood by the authors then we quickly get to the second amendment which I mentioned earlier in this thread.

"Arms" in 1790s did not mean what it does today. The exact meaning of the founders was muzzle loaders. If we are strict about keeping with the text then the govt can ban any and all weapons that are not muzzle loaders. Did the founders mean the principle of arms and include any future weapons? Or should we use the word PRECISELY as they did? It quickly becomes a game to pick all the words apart as they were used back then and require that they be restricted to what was known then. The backpedalling quickly begins as words suddenly have meanings that include things that didn't exist then

Really? What liberty was intruded upon? This would imply that anything and everything is a liberty which seems in direct contradiction to Scalia's claim that we can't create liberties. Without defining the liberty there is no legal basis for a "due process" claim.

Debra, its always a pleasure to read your posts when you really get into a topic. Well done. I'm hoping to have that sort of grasp on the law in due time (I'm a 3L).

Just wondering, are you an attorney, professor, judge, or just a "law nut"?

Very good Parados. Now you are grasping originalism to make a very good "critique" of the philosophy.

One flaw of originalism is the "rigidness" of it. But this is why it is so appealing. To an individual looking to control judicial activism, or judges legislating from the bench, then this rigidness is beneficial. If the judge adheres to the original meaning of the text then this minimizes judicial activism, or judges legislating from the bench.

But you have found a good critique but they use this critique to keep judges in line.

In Scalia's book, which some people have grossly misconstrued around here, he remedies this problem by providing another requirement of textualism.

This next requirement is one Debra devoted an entire post to and got it wrong anyway in her critique of it.

First of all so there is no confusion let me tell you the two approaches and where and why Scalia applies them.


Scalia likes original understanding/meaning.
His other requirement is a text should be construed reasonably to contain all that it fairly means.

Debra seizes upon this last requirement and calls Scalia a hyporcit. This demonstrates Debra's gross misunderstanding of Scalia's philosophy. Scalia applies an "originalism" understanding to the words "due process" which mean "procedural" protection only. In Scalia's mind even if you applied his second standard you still come out with the same outcome. Why? Because all the the words due process mean, "ALL" it means is procedural due process.

The reason Scalia applies this approach to the words due process is to abate judges legislating from the bench as they do under the guise of substantive due process.

Now when it comes to other provisions in the U.S. Constitution he still applies originalism. For Scalia "originalism" is the beginning point of the analysis. Once the "original meaning" or understanding is obtained then the next step is to ask how it is applied today or what does it mean in today's society.

He takes the same approach with the word "speech" in the First Amendment and then asserts the word should be construed to contain "all that it fairly means". Fairly means under an original understanding and reasonable standard.

So you do have a good grasp of originalism and have identified where it is limited and I have told you why the limited nature of it is so appealing.

But I guess all this supports the idea law is an "art" not a "science".

Well Scalia's claim is what I said earlier. Scalia claims the plain text of the 14th amendments due process clause does not "guarantee" liberty but only "due process". So to him it is irrelevant and pointless to even ask what does liberty mean. All he wants to know and look at is whether or not the "procedures" necessary were applied. So long as the "procedures" were afforded then the state can act.

For a more thorough discourse on this "guarantee" idea see my earlier post I made to you in which I go into further detail about the plain meaning of 14th amendment due process clause.

So we never have to define liberty because liberty is not guaranteed by the clause. Due process is guaranteed and so all we have to ask is whether or not the procedures necessary for the depravation were given.

Question. I've read the competing philosophies in this thread. Now what are the practical implications?

Well, if that's the case (and I tend to agree), then isn't it a fact that the courts, in "incorrectly" interpreting the due process clause to give the same substantive protections that were supposed to be afforded by the privileges or immunities clause, have simply fulfilled the intent of the amendment's drafters, albeit indirectly?

In other words James, Scalia's view is to read the text according to his personal beliefs and decide what "fair" means when the text doesn't take him where he wants to go. A not very textual approach at all. Rather it is a smoke screen under the claim of being "textual." It goes back to "whose ox is being gored" when we decide if it is "judicial activism."

This takes us back to Bush v Gore brought up by Joe. Is it "judicial activism" or not?