Activist Judges

goodfielder wrote:

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

My take on it goodfielder is that they are variations on a theme. It is just a way of attacking decisions you don't like under the pretense of being impartial yourself.

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Thanks parados - similar to arguments here between "black letter" lawyers and so-called "judicial activists".

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Goodfielder:

The practical implications? By this I understand you to ask what are the practical implications of my view as opposed to those who advocate substantive due process.

The practical implications are profound. Under the textualist view any life, liberty, and property can be taken away so long as procedures are given to the individual.

The first few words of the clause clearly contemplate the state can take something away.

nor shall any state deprive

Clearly these words admit of the state's power to take away something.

nor shall any state deprive any person of life, liberty, or property,

Okay now read together it clearly admits of the state's ability to take away your life, liberty and property.

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

Now the entire phrase taken together. We already know the clause admits of the state's ability to take away your life, liberty, and property. The only requirement to take each away is by due process. Notice, however, the plain english is not guaranteeing you any liberty. This is very important because substantive due process is where the Court looks at the word "liberty" and determines it has "substance". In other words, substantive due process asserts the word "liberty" guarantees you some conduct, some interest, and so forth is included in the word "liberty". Well unfortunately this is not what the words guarantee. The words guarantee you "due process" and nothing more. The plain wording leaves no room for the practice of looking at the word "liberty" and determining it is "guaranteeing" you those interest asserted to be within it's meaning in Roe, Loving, Lawrence, Griswold, and so forth.

Now the original understanding of the words "due process" meant "procedural" protections only. If the state deprived you of life, liberty, or property then the only question to ask is did the state give you the required procedures before taking one or all of them away. So long as the state did, then their conduct is constitutional.

Substantive due process, however, looks to declare some interest is within the meaning of the word, "liberty," hence giving it substance, and then stating the interest as fundamental requiring strict scrutiny. What substantive due process asserts is if the interest is within the meaning of the word liberty, then it does not matter if all of the procedures were given, the state MUST pass an additional requirement.

Now under substantive due process even if all of the required procedures are followed under procedural due process the state must also have a compelling state interest, the law narrowly tailored to this interest, before infringement is permissible if the interest is fundamental. This is a very difficult standard to jump. In fact it is so difficult state's often, dare I say never, meet this requirement which prompted Justice O'Connor to remark in a case before the Court, "I promise strict scrutiny does not automatically mean the end of the state law.

Despite this statement by O'Connor the fact remains the practical and realistic implications of strict scrutiny ensures these interests will always be protected as the state will rarely if ever espouse a "compelling state interest" to justify infringement of the liberty interest.

Of course this undermines the plain english of the clause. The plain english of the clause makes no mention of fundamental rights, strict scrutiny, or rational basis review. In fact the plain english does not guarantee you any such thing as "fundamental rights" nor does the plain english make the claim some rights are more important than others and the really important ones are "fundamental". Rather, the plain english contemplates the state can take away your liberty so long as procedural due process is followed.

Now why is any of this important? Well it is important because we live in a Republic where the legislature "makes" the law and not the judiciary. Allowing the judiciary to create terms of art such as "substantive due process, fundamental rights, strict scrutiny, and compelling state interest," where the plain text does not contemplate the existence of any of these terms results in the judiciary making law, new law, when this is not their delegated authority under the U.S. Constitution.

The Court has made up these extra textual words of art to declare you have "more" rights than the text says you do, in fact you have those rights which are "so rooted in the traditions and conscience of society as to be deemed fundamental". Well this language is not to be found anywhere in the text of the U.S. Constitution either nor was it even contemplated by the drafters of the 14th amendment.

You may be wonderings, "Well which conduct qualifies as one so rooted in in the traditions and conscience of society as to be deemed fundamental?" Well to be quite honest whatever the Court says qualifies, qualifies. So it is completely up to judicial discretion. In fact it is very debateable whether or not the freedom to have an "abortion" was one so rooted in the traditions and conscience of society as to be deemed fundamental. For more on this see Scalia's dissent in Planned Parenthood v. Casey.

So these extra textual terms permit the Court an enormous amount of discretion and freewheeling in "making up" constitutional law as they go along. They are bound by nothing other than their discretion and any construction they choose to give to the words in the text.

Well this completely defies the purpose of having a written U.S. Constitution and in placing with the legislature the responsibility of "making" law.

The purpose of the U.S. Constitution was to abate "change". The Framers did not like the English system of democracy. No law really constrained the central government in England as the legislature "made" the law. Acts of parliament in England either modified or amended the common law and the entire field of law.

Well this terrified the Framers and Founding Fathers. So they sought to establish a written constitution. Why? A written constitution where the powers of the government are "explicitly" spelled out would operate as a restraint on the amount of power the central government can exercise. This is why the put down in plain english the powers of each of the branches of government and in so doing limited the powers of each branch.

If, however, judges are permitted to give any construction they want to the words in the U.S. Constitution, and it's amendments, then what was the point in the Framers writing anything down? If the purpose and desire of limiting central power by explicitly writing down what each branch can do can easily be subverted by the Court's unabated discretion to attach any meaning to the words in the Constitution, then why even have a written constitution much less an amendment process? The Framers did not give any authority to the judiciary a power to give any construction to the words in the document or the amendments precisely because this would undermine their desire to have a government of limited powers. Well if the judiciary can simply "expand" the powers of the central government by simply giving a new or different construction of the words in the document which justify the government conduct then where is the "limitation" inherent in a written constitution? It is gone.

So rather than allow the judiciary to change the powers of central government by simply attaching any construction they wanted to the terms in the document the Framers included an "amendment" process instead. Specifically, the Framers wanted "change" to be done only 1 way, by the amendment process, and not by the Courts giving new meanings to the words used in the document.

The Framers desired and wanted things to remain "static". This is why they required a rather difficult amendment process to change the Constitution. They did not want majorities or minorities seizing power in the government and giving it powers not previously understood to be delegated by the U.S. Constitution.

Yet this is what the U.S. Supreme Court has become in regards to giving the terms a different construction of the words "due process". The Court has become extremely political. People understand this and realized, "Hey if I can't get what I want from the legislature, I can go to the next legislature, namely the U.S. Supreme Court. They may give me what I want if my local legislature or Congress will not."

And this is precisely what has happened. These minorities and at times majorities have invoked the U.S. Supreme Court to give a different construction to the words to protect an interest never heard of when the document was created, never mentioned in the U.S. Constitution, but the Court "makes" it Constitutiona law anyway and in so doing the powers of the state governments have been diminished in such a way as to never have been contemplated by the Framers of the U.S. Constitution or the drafters of the 14th amendment.

For these reasons originalism is the best approach to the words "due process" in the 14th and 5th amendments. It abates judicial activism and preserves the Republican form of government that was created where only the legislature makes the law.

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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?

No because all the drafters of the 14th amendment were seeking to impose under the privileges and immunities clause are the Bill of Rights and nothing more.

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Quote:

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?

Well not quite. Scalia's first question is to ask what the words "originally meant or were understood" to mean. Then once the original meaning and understanding is found the judge then must ask how originalism would address the situation before them. While not perfect it is much better than the other approach since the judge knows what he is looking for, original meaning, and then ask how original meaning applies to the facts before them.

For example the original meaning of the word "speech" in the First Amendment meant much more than just verbal declarations. According to the Framers and Founding Fathers it also included expressive conduct. Additionally, James Madison understand the word to place paramount importance on political speech (see his comments on the repudiation of the Sedition Acts passed by the Adams' administration and his report to the Virginia legislature on State Nullification of this law).

Hence, the Texas v. Johnson case was a no brainer in Scalia's mind. Flag burning is expressive conduct and political speech. This conduct was covered by the original understanding of the term. So Scalia sought to give the original meaning "all that it fairly contains". So Scalia voted to protect Johnson's discretion to burn the U.S. flag in the context of making a political statement. In such an instance Scalia was "bound" by the original meaning of the terms.

If one commits themselves to the "original meaning" of the terms, then this minimizes one's own discretion and it is unrestrained discretion which leads to judicial activism.

So no textualism is not a facade to justify judicial activism. Rather, textualism is an attempt to bind the judge to some standard other than their own subjective beliefs and discretion.

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You didn't answer if Bush v Gore was judicial activism.

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JustanObserver wrote:

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"?

I graduated with distinction from an excellent law school and practiced law for several years, but I'm not a "law nut." The nuts are those who follow the "textualism" teachings of Scalia who himself blatantly ignores original intent under the guise of following it. Scalia is intellectually dishonest and inconsistent in the application of his own methods of interpretation depending on the issue presented. If he was at least consistent, one could consider him a misguided fool. But due to his inconsistency, one must consider him to be a result-oriented twister of words. People who pound Scalia's drum do so because 1) they are morons (mere sheep) without the intellectual ability to see through the guise; or 2) they see through the guise, but promoting Scalia's dishonest, hypocritical interpretations of the constitution serves their oppressive agendas.

Scalia has often said that the abrogation of a liberty interest by a validly enacted statute suffices to provide all the process that is due. Apparently then, it is NOT "due process of law" to have liberty abrogated by an INVALID statute. And yet, Scalia and his disciples remain silent when asked the meaning of a "validly enacted statute." Nevertheless, when one examines history, it becomes clear that when the SUBSTANTIVE rule of law is defective--when the substance of the law itself violates the social compact upon which the people entered into ordered society--then the substantive rule exceeds the prescribed bounds of governmental power, is INVALID, and can't even be called a "law." See, e.g., Calder v. Bull (citation and excerpts posted earlier).

Due process of law has always concerned itself with both fair procedures and fair substance of the law. Due process of law abhors unfair procedures AND unfair substance of the law that arbitrarily deprive individuals of their rights. What was the ORIGINAL INTENT of our founders? Their intent was to SECURE rights and prevent governmental powers from being used as an instrument of oppression. Our founding fathers never delegated powers to the government to enact statutes that unreasonably abrogate liberty. In limiting the power of government, our founders provided that Congress shall make only those laws that are necessary and proper to effectuate the delegated powers.

Although our courts give great deference to the decisions of the legislative branch with respect to what is necessary and proper in the political sense, e.g., should government establish a bank, that same great deference is not warranted when substantive rules of law infringe upon the very rights of the people that government was formed to secure.

See M'CULLOCH v. STATE, 17 U.S. 316, 387 (1819):

Quote:

. . . The judiciary may, indeed, and MUST (emphasis added), see that what has been done is not a mere evasive pretext, under which the national legislature travels out of the prescribed bounds of its authority, and encroaches upon state sovereignty, or the rights of the people. For this purpose, it must inquire, whether the means assumed have a connection, in the nature and fitness of things, with the end to be accomplished. . . .

Our founding fathers, and the courts they created as an independent branch of government to secure individual rights against oppression, have always required that the substance of our laws be reasonable: When a statute encroaches upon our precious liberty interests as a means to effectuate a governmental purpose, then the law must--at a minimum--be rationally related to a LEGITIMATE state end.

Even in HURTADO v. PEOPLE OF STATE OF CALIFORNIA, 110 U.S. 516 (1884) where a procedural device (grand jury) was at issue, the Court acknowledged several times that the meaning of "due process of law" included substantive due process--the most telling acknowledgment as follows:

Quote:

'The fourteenth amendment,' as was said by Mr. Justice BRADLEY in Missouri v. Lewis, 101 U.S. 22 -31, 'does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two states separated only by an imaginary line. On one side of this line there may be a right of trial by jury, and on the other side no such right. Each state prescribes its own modes of judicial proceeding.'

But it is not to be supposed that these legislative powers are absolute and despotic, and that the amendment prescribing due process of law is too vague and indefinite to operate as a practical restraint. It is not every act, legislative in form, that is law. Law is something more than mere will exerted as an act of power. It must be not a special rule for a particular person or a particular case, but, in the language of Mr. Webster, in his familiar definition, 'the general law, a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial,' so 'that every citizen shall [110 U.S. 516, 536] hold his life, liberty, property, and immunities under the protection of the general rules which govern society,' and thus excluding, as not due process of law, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative judgments and decrees, and other similar special, partial, and arbitrary exertions of power under the forms of legislation. Abritrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude. And the limitations imposed by our constitutional law upon the action of the governments, both state and national, are essential to the preservation of public and private rights, notwithstanding the representative character of our political institutions. The enforcement of these limitations by judicial process is the device of self-governing communities to protect the rights of individuals and minorities, as well against the power of numbers, as against the violence of public agents transcending the limits of lawful authority, even when acting in the name and wielding the force of the government.

The supreme court of Mississippi, in a well-considered case, (Brown v. Levee Com'rs, 50 Miss. 468,) speaking of the meaning of the phrase 'due process of law,' says: 'The principle does not demand that the laws existing at any point of time shall be irrepealable, or that any forms of remedies shall necessarily continue. It refers to certain fundamental rights which that system of jurisprudence, of which ours is a derivative, has always recognized. If any of these are disregarded in the proceedings by which a person is condemned to the loss of life, liberty, or property, then the deprivation has not been by 'due process of law."

'It must be conceded,' said this court, speaking by Mr. Justice MILLER, in Loan Ass'n v. Topeka, 20 Wall. 655-662, 'that there are such rights in every free government beyond the control of the state. A government [110 U.S. 516, 537] which recognized no such rights,-which held the lives, the liberty, and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power,-is after all but a despotism. It is true, it is a despotism of the many,-of the majority, if you choose to call it so,-but it is nevertheless a despotism. It may be doubted, if a man is to hold all that he is accustomed to call his own, all in which he has placed his happiness, and the security of which is essential to that happiness, under the unlimited dominion of others, whether it is not wiser that this power should be exercised by one man than by many.'

It follows that any legal proceeding enforced by public authority, whether sanctioned by age and custom, or newly devised in the discretion of the legislative power in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law.

Again, due process of law has always concerned itself with the substance of the law. Simply because a democratic legislative body passes a statute--that doesn't mean the statute is valid. "Due process of law" serves as a practical restraint on legislative bodies with respect to the substance of the statutes. If the substance of the statute violates the social compact upon which government was instituted--it can't be called a law and its application cannot be called "due process of law." "It is not every act, legislative in form, that is law. Law is something more than mere will exerted as an act of power."

Scalia is intellectually dishonest when he assertions that due process of law means procedure only. It is intellectually dishonest to proclaim all that due process requires is a "validly enacted statute" and simultaneously deny that due process of law provides the substantive mechanism to test the "validity" of the statute at issue. In doing so, he ignores the very essense of due process of law as defined throughout our entire history. Those who embrace Scalia's definition of due process do so because they are ignorant fools intellectually incapable of discerning the dishonesty in his misrepresentations of history and original intent (which he applies inconsistently, btw, and that should serve a clue) or because doing so allows them to corrupt the principals of liberty and justice to serve their own oppressive agendas. To those disposed to be corrupt and usurp our liberties, those others who genuinely buy into Scalia's hypocritical nonsense are useful idiots.

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James Madison wrote:

Hence, the Texas v. Johnson case was a no brainer in Scalia's mind. Flag burning is expressive conduct and political speech. This conduct was covered by the original understanding of the term. So Scalia sought to give the original meaning "all that it fairly contains". So Scalia voted to protect Johnson's discretion to burn the U.S. flag in the context of making a political statement. In such an instance Scalia was "bound" by the original meaning of the terms.

The majority opinion in TEXAS v. JOHNSON, 491 U.S. 397 (1989) was written by Justice Brennan.

Justice Brennan's opinion was joined by Justices Marshall, Blackmun, Scalia, and Kennedy.

Justice Kennedy filed a separate concurring opinion.

Chief Justice Rehnquist filed a dissenting opinion whinch was joined by Justices White and O'Connor.

Justice Stevens filed a dissenting opinion.

I cannot find a separately written opinion by Justice Scalia that would indicate that Scalia thought the case was a "no brainer" in Scalia's mind as JM proclaims, or where Scalia himself sought to give "original meaning 'all that it fairly contains'" as JM proclaims, or to explain why Scalia joined Justice Brennan's opinion despite JM's explanation. Unless JM is a mind-reader or can direct us to some other source wherein Scalia himself tells us what he was thinking, JM's musings on Scalia's state of mind and thought processes are irrelevant.

Expressing one's opinion, either verbally or through conduct, is a liberty interest. "It has been determined that the conception of liberty under the due process clause of the Fourteenth Amendment embraces the right of free speech." Stromberg v. California, 283 U.S. 359, 368 (1931). The Fourteenth Amendment provides that no state shall deprive any person of life, liberty (which includes freedom of speech), or property without due process of law.

But, wait a minute: Scalia says the due process clause protects only one thing: PROCEDURE. Scalia says that the due process clause merely requires a validly enacted law and a fair trial. Even if a state statute implicates a liberty interest, Scalia says the categorical abrogation of that liberty interest by a validly enacted state statute suffices to provide all the process that is due. Scalia denies that the due process clause includes a substantive component. Therefore, if Scalia was consistent instead of the hypocrite that he is, he would hold that even if the Texas statute implicates the liberty interest in flag burning, the categorical abrogation of that liberty interest in flag burning by a validly enacted state statute suffices to provide all the process that is due.

Why does one's liberty interest (e.g., burning a flag) obtain Scalia's support under the due process clause, but another liberty interest (e.g., engaging in adult consensual sexual relations in the privacy of one's home) does not? After all, both interests were abrogated by a Texas state statute. If he doesn't believe the text of the due process clause supports a substantive due process analysis, why doesn't he apply his constitutional ideology consistently?

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Scalia, the result-oriented jurist with a religious agenda, uses "original intent" (as he conveniently reasons it to be without due regard to our true history) to promote Christianity:

Scalia To Synagogue - Jews Are Safer With Christians In Charge

December 2, 2004

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Antonin Scalia, the man most likely to be our next Chief Justice of the Supreme Court, turned history on its head recently when he attended an Orthodox synagogue in New York and claimed that the Founders intended for their Christianity to play a part in government. Scalia then went so far as to suggest that the reason Hitler was able to initiate the Holocaust was because of German separation of church and state.

The Associated Press reported on November 23, 2004, "In the synagogue that is home to America's oldest Jewish congregation, he [Scalia] noted that in Europe, religion-neutral leaders almost never publicly use the word 'God.'"

"Did it turn out that," Scalia asked rhetorically, "by reason of the separation of church and state, the Jews were safer in Europe than they were in the United States of America?" He then answered himself, saying, "I don't think so."

Scalia has an extraordinary way of not letting facts confound his arguments, but this time he's gone completely over the top by suggesting that a separation of church and state facilitated the Holocaust. . . .

[FACT: Hitler merged the German Protestant Church into the Reich "[a]t a time in which our German people are experiencing a great historical new era through the grace of God, . . ."]

Which brings up one of the main reasons - almost always overlooked by modern-day commentators, both left and right - that the Founders and Framers were so careful to separate church and state: They didn't want religion to be corrupted by government.

Many of the Founders were people of faith, and even the Deists like Franklin, Washington, and Jefferson were deeply touched by what Franklin called "The Mystery." And they'd seen how badly religious bodies became corrupted when churches acquired power through affiliation with or participation in government.

The Puritans, for example, passed a law in Plymouth Colony in 1658 that said, "No Quaker Rantor or any other such corrupt person shall be a freeman in this Corporation [the state of Massachusetts]." Puritans banned Quakers from Massachusetts under pain of death, and, as Norman Cousins notes in his book about the faith of the Founders, In God We Trust, "And when Quakers persisted in returning [to Massachusetts] in defiance of law, and in practicing their religious faith, the Puritans made good the threat of death; Quaker women were burned at the stake."

Quakers were also officially banned from Virginia prior to the introduction of the First Amendment to our Constitution. Cousins notes: "Quakers who fled from England were warned against landing on Virginia shores. In fact, the captains of sailing ships were put on notice that they would be severely fined. Any Quaker who was discovered inside the state was fined without bail."

Throughout most of the 1700s in Virginia, a citizen could be imprisoned for life for saying that there was no god, or that the Bible wasn't inerrant. "Little wonder," notes Cousins, "that Virginians like Washington, Jefferson, and Madison believed the situation to be intolerable."

Even the oppressed Quakers got into the act in the 1700s. They finally found a haven in Pennsylvania, where they infiltrated government and promptly passed a law that levied harsh fines on any person who didn't show up for church on Sunday or couldn't "prove" that s/he was home reading scripture on that holy day.

Certainly the Founders wanted to protect government from being hijacked by the religious, as I noted in a previous article that quotes Jefferson on this topic. But several of them were even more concerned that the churches themselves would be corrupted by the lure of government's easy access to money and power.

Religious leaders in the Founders' day, in defense of church/state cooperation, pointed out that for centuries kings and queens in England had said that if the state didn't support the church, the church would eventually wither and die.

James Madison flatly rejected this argument, noting in a July 10, 1822 letter to Edward Livingston: "We are teaching the world the great truth, that Governments do better without kings and nobles than with them. The merit will be doubled by the other lesson: the Religion flourishes in greater purity without, than with the aid of Government."

He added in that same letter, "I have no doubt that every new example will succeed, as every past one has done, in showing that religion and Government will both exist in greater purity the less they are mixed together."

Madison even objected to government giving money to churches to care for the poor. It would be the beginning of a dangerous mixture, he believed - dangerous both to government and churches alike. Thus, on February 21, 1811, President James Madison vetoed a bill passed by Con gress that authorized government payments to a church in Washington, DC to help the poor.

In Madison's mind, caring for the poor was a public and civic duty - a function of government - and must not be allowed to become a hole through which churches could reach and seize political power or the taxpayer's purse. Funding a church to provide for the poor would establish a "legal agency" - a legal precedent - that would break down the wall of separation the founders had put between church and state to protect Americans from religious zealots gaining political power.

Thus, Madison said in his veto message to Congress, he was striking down the proposed law, "Because the bill vests and said incorporated church an also authority to provide for the support of the poor, and the education of poor children of the same;..." which, Madison said, "would be a precedent for giving to religious societies, as such, a legal agency in carrying into effect a public and civil duty."

Madison also opposed - although he didn't stop - the appointment of chaplains for Congress. "Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom?" he asked in 1820. His answer: "In the strictness the answer on both points must be in the negative. ...The establishment of the chaplainship to Congs is a palpable violation of equal rights, as well as of Constitutional principles."

Madison went on to suggest that if members of Congress wanted a chaplain, they should pay for it themselves. "If Religion consist in voluntary acts of individuals, singly, or voluntarily associated, and it be proper that public functionaries, as well as their Constituents shd discharge their religious duties, let them like their Constituents, do so at their own expense. How small a contribution from each member of Cong wd suffice for the purpose! How just wd it be in its principle! How noble in its exemplary sacrifice to the genius of the Constitution; and the divine right of conscience! Why should the expense of a religious worship be allowed for the Legislature, be paid by the public, more than that for the Ex. or Judiciary branch of the Gov."

But always, in Madison's mind, the biggest problem was that religion itself showed a long history of becoming corrupt when it had access to the levers of governmental power and money.

In 1832, he wrote a letter to the Reverend Jasper Adams, pointing this out. "I must admit moreover that it may not be easy, in every possible case, to trace the line of separation between the rights of religion and the civil authority with such distinctness as to avoid collisions and doubts on unessential points. The tendency to a usurpation on one side or the other or to a corrupting coalition or alliance between them will be best guarded against by entire abstinence of the government from interference in any way whatever, beyond the necessity of preserving public order and protecting each sect against trespasses on its legal rights by others."

As he wrote to Edward Everett on March 18, 1823, "The settled opinion here is, that religion is essentially distinct from civil Government, and exempt from its cognizance; that a connection between them is injurious to both..."

Yet now, in 2004, the religious appear to be on the verge of both corrupting government and being corrupted themselves by the power and influence government can wield.

For example, as Reverend Moon has moved more and more into the political realm - from funding activities of both George H.W. Bush and his son George W. Bush, to funding the money-losing but politically activist Washington Times newspaper, to financially bailing out Jerry Falwell, to setting up numerous charities that now ask for federal funding - we see an increasing and ominous participation of legislators and Moonies. Moon, for example, was crowned by several members of Congress in the Senate Dirksen Office building on March 23, 2004. As the Washington Post noted in a July 21 story by Charles Babington, Moon himself proclaimed to our elected representatives attending the ceremony, "Emperors, kings and presidents . . . have declared to all Heaven and Earth that Reverend Sun Myung Moon is none other than humanity's Savior, Messiah, Returning Lord and True Parent."

Others, like Falwell and Robertson, who want to use the money and power of government to promote their religious agendas, are making rapid inroads with George W. Bush's so-called "faith-based initiatives," which shift money from government programs for the poor and needy to churches and religious groups.

All of this - the merging of church and state - is now being aggressively promoted by no less than Supreme Court Associate Justice Antonin Scalia, in no less shocking a venue than the nation's oldest Orthodox synagogue.

In some distant place, Adolf Hitler and Bishop Müller must be smiling at Scalia's encouragement of the growing conflation of church and state in America. It's exactly what they worked so hard to achieve, and what helped make their horrors possible.

And Thomas Jefferson and James Madison must have tears in their eyes.

Also, Scalia believes that government is God's minister, and as such, the people must obey all laws because they are founded upon devine authority. See Transcript. Scalia states: "It seems to me that the reaction of people of faith to this tendency of democracy to obscure the divine authority behind government should be not resignation to it but resolution to combat it as effectively as possible. . . ."

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James Madison wrote:

No because all the drafters of the 14th amendment were seeking to impose under the privileges and immunities clause are the Bill of Rights and nothing more.

But isn't that what the proponents of incorporation under the due process clause are trying to do? Sorry to sound obtuse here, J M, but I still can't see the practical difference between the two positions.

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Joe:

In a word, no. The Court has ushered in much more than the Bill of Rights. If all the Court was incorporating were the Bill of Rights I'd have no problem at all. But the Court uses the due process clause to protect other areas of interest not covered by the Bill of Rights and with this I hav a problem.

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Parados, I would need to research what the phrase, "Equal Protection of the law," originally meant.

However, if I recall the opinion correctly, the violation of the equal protection clause was primarily if not solely because of a lack of some standards to fairly, accurately, or objectively count the ballots.

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My goodness Debra your criticisms are derivative from a fundamental misunderstanding of textualism and "incorporation".

First of all it is most apparent you have not divested much of your time acquainting yourself with the doctrine of textualism or Scalia's judicial philosophy. Scalia has had a lot to say about his notions of the Free Speech clause in the First Amendment. He makes a few remarks in his book and through a series of cases. However, considering Scalia is a textualist, knowing what methodology this term employs, combined with his comments in his book, I know "exactly" how he viewed the Texas v. Johnson case.

Additionally, your comments about Scalia being a hypocrit are as misplaced as the remarks you make about textualism. But this time not only have you made erroneous remarks about Scalia's philosophy but also about Free Speech jurisprudence and how free speech is protected amongst the states.

If anyone attended a tier 1 or tier 2 school, which I have, and they took a First Amendment Free Speech class, which I did, or during their Constitutional law school class they covered the "rights" of the individual, which I did, then they should recall the idea of "incorporation".

Incorporation is the approach taken by the Court in selectively choosing portions of the First 8 amendments as binding on the states.

So, when Scalia seeks to argue why a state cannot infringe upon an individual's free speech he does not look at the word "liberty" in the due process clause but his analysis focuses upon the Free Speech clause in the First Amendment. Hence, like usual your criticism of Scalia's judicial philosophy is ultimately a result from your lack of knowledge on how he decides cases, a lack of knowledge about textualism, and a lack of knowledge of how speech is actually protected.

Scalia is NEVER focusing upon the word "liberty" in the due process clause to protect Speech. WHY? Because the due process clause has been held by the Court in Gitlow v. New York to INCORPORATE AS BINDING ON THE STATES THE FREE SPEECH CLAUSE OF THE 1ST AMENDMENT. SO, when Scalia analyzes a free speech case he is not looking at the word "liberty" in the due process clause but rather he is focusing upon the Free Speech Clause of the First Amendment. WHY? Because the First Amendment FREE SPEECH CLAUSE has been INCORPORATED onto the states as BINDING and therefore, it is the FIRST AMENDMENT FREE SPEECH CLAUSE which protects FREE SPEECH from state infringement.

So, since Scalia is not looking at the word "liberty" in the 14th amendment as ANY basis for his analysis in ANY free speech case, had you actually been familiar with Scalia's judicial philosophy you'd know this already, your claim he is being a hypocrit is just as misplaced and misinformed as much of the rest of the stuff you say here.

In fact had you actually bothered to read the case you cited for me, Stromberg, you'd realize they actually cite as their legal authority GITLOW v. New York. The case I just cited where the U.S. Supreme Court holds the Free Speech Clause is BINDING ON the states.

This is known as the incorporation doctrine. Simply the incorporation doctrine, also known as selective incorporation, is best know as and described as the Court incorporating various parts of the first 8 amendments as binding on the states. Hence, it is not the word "liberty" which protects those rights enumerated in those 8 amendments but the AMENDMENTS themselves protect the rights ONCE they are incorporated onto the states.

Justice Cardozo espoused the standard by which the Court would later use in determining whether or not some portion or ALL of the amendment of the first 8 is binding against the states. the incorporation of a given right dependent upon whether it was found to be implicit in the concept of ordered libertyPalko v. Connecticut.

In determining whether right extended by Fifth and Sixth Amendments with respect to federal criminal proceedings is also protected against state action by Fourteenth Amendment, question is asked whether right is among those fundamental principles of liberty and justice which lie at base of all our civil and political institutions, whether it is basic in our system of jurisprudence, and whether it is fundamental right, essential to fair trial. Duncan v. State of Louisiana.

Thomas v. Review Board of Indiana Employment Sec. Division said the following the Court's entire analysis and focus was not upon the word "liberty" in the 14th amendment but rather the First Amendment itself, DESPITE the fact the due process clause of the 14th amendment made the 1st amendment binding on the states, namely in this case the religion clauses of the 1st amendment. Even Rhenquist acknowledged the existence of the incorporation doctrine when he said the following:...First Amendment applied only to the Federal Government, not the government of the States. Barron v. Baltimore, 7 Pet. 243, 8 L.Ed. 672 (1833). The Framers could hardly anticipate Barron being superseded by the "selective incorporation" doctrine adopted by the Court, a decision which greatly expanded the number of statutes which would be subject to challenge under the First Amendment.

In Bigelow v. Virginia the Court said the following:First Amendment is applicable to the states through the Fourteenth Amendment.

In fact once the Bill of Rights, or a portion of one of them, is incorporated onto the state it is the "particular amendment" which is controlling. See Terry v. Ohio, Zorach v. Clauson The Fourteenth Amendment makes the First Amendment provisions applicable to states and prevents them from establishing religion or prohibiting its free exercise.

Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 96 S.Ct. 1817
U.S.Va.,1976
First Amendment is applicable to states through due process clause of Fourteenth Amendment

So contrary to Debra's adamant assetions the word "liberty" in the Fourteenth Amendment protects "free speech" she is wrong, as usual. The word "liberty" incorporates the Free Speech clause onto the states so the First Amendment Free Speech clause protects speech against state impairment. The Free Speech Clause of the First Amendment, incorporated onto the states in Gitlow v. New York, is the source of protection for "free speech". For present purposes we may and do assume that freedom of speech and of the press--which are protected by the First Amendment from abridgment by Congress--are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States.

Now how does the 14th amendment protect free speech? According to the Court it is very clear. The 14th amendment does not protect it all by itself. The Court makes it clear the 14th amendment protects free speech by binding the First Amendment protections of speech and press from Congressional abridgment from state impairment. In other words the First Amendment protections for speech and press are also protected from state impairment but not solely because of the word "liberty" in the 14th amendment but rather because this "liberty" makes binding on the states the First Amendment Free Speech and Press clause. So it is ultimately the First Amendment Free Speech Clause which affords protection to "speech" from state impairment.

And for every free speech case which comes before the Court Scalia looks to the first amendment and not the word "liberty". Why? Because it is the free speech clause which protects free speech from state impairment and the word "liberty" is relevant only to the extent it makes the free speech clause binding as against state impairment. Other than this the Free Speech clause protects speech against state impairment and not the word liberty.

In Thomas v. Collins the Court looked, not to the 14th amendment, but the First Amendment in determining the constitutionality of a Texas statute. the indispensable democratic freedoms secured by the First Amendment

So no, Scalia is not a hypocrit. Why? Because ultimately it is the First Amendment that protects Free Speech and not the word "liberty". The word liberty merely incorporates the First Amendment Free Speech clause onto the states but ultimately it is a First Amendment case and the Court looks to the First Amendment to resolve the issue of state impairment, this has been especially true for the last 50 years.

So Debra if you'd actually spend some time researching Scalia's judicial philosophy, the doctrine of selective incorporation and how it works, textualism, and originalism, you would not make yourself look so reckless and careless in making these blatantly false and irrelevant claims against Scalia or textualism, much less missing the mark on the incorporation doctrine.

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James Madison wrote:

Joe:

In a word, no. The Court has ushered in much more than the Bill of Rights. If all the Court was incorporating were the Bill of Rights I'd have no problem at all. But the Court uses the due process clause to protect other areas of interest not covered by the Bill of Rights and with this I hav a problem.

Like what?

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James Madison wrote:

Parados, I would need to research what the phrase, "Equal Protection of the law," originally meant.

However, if I recall the opinion correctly, the violation of the equal protection clause was primarily if not solely because of a lack of some standards to fairly, accurately, or objectively count the ballots.

And how do you get the requirement for a standard to fairly, accurately, and objectively count ballots from originalism?

Isn't it fair if the SAME standard is used to count all ballots in a given county? The standard itself shouldn't matter as much as the application.

If we apply originalism the standard was discerning voter intent by hand counting the ballots. Wouldn't an argument that hand counting isn't fair be in direct violation of "originalism?"

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"It has been determined that the conception of liberty under the due process clause of the Fourteenth Amendment embraces the right of free speech." STROMBERG v. PEOPLE OF STATE OF CALIFORNIA, 283 U.S. 359, 368 (1931).

JM wrote:

Scalia is NEVER focusing upon the word "liberty" in the due process clause to protect Speech. WHY? Because the due process clause has been held by the Court in Gitlow v. New York to INCORPORATE AS BINDING ON THE STATES THE FREE SPEECH CLAUSE OF THE 1ST AMENDMENT. SO, when Scalia analyzes a free speech case he is not looking at the word "liberty" in the due process clause but rather he is focusing upon the Free Speech Clause of the First Amendment. WHY? Because the First Amendment FREE SPEECH CLAUSE has been INCORPORATED onto the states as BINDING and therefore, it is the FIRST AMENDMENT FREE SPEECH CLAUSE which protects FREE SPEECH from state infringement.

So, since Scalia is not looking at the word "liberty" in the 14th amendment as ANY basis for his analysis in ANY free speech case, had you actually been familiar with Scalia's judicial philosophy you'd know this already, your claim he is being a hypocrit is just as misplaced and misinformed as much of the rest of the stuff you say here.

In fact had you actually bothered to read the case you cited for me, Stromberg, you'd realize they actually cite as their legal authority GITLOW v. New York. The case I just cited where the U.S. Supreme Court holds the Free Speech Clause is BINDING ON the states.

This is known as the incorporation doctrine. Simply the incorporation doctrine, also known as selective incorporation, is best know as and described as the Court incorporating various parts of the first 8 amendments as binding on the states. Hence, it is not the word "liberty" which protects those rights enumerated in those 8 amendments but the AMENDMENTS themselves protect the rights ONCE they are incorporated onto the states.

Have you forgotten? I have never said that the word "liberty" in the Fourteenth Amendment protects liberty. In case you have forgotten, you're the one who makes the ridiculous claim that "liberty" protects liberty in a substantive due process analysis. For the millionth (it seems) time: In a substantive due process analysis, it is "due process of law" that protects individual life, liberty, and property interests by prohibiting states from enforcing substantive rules of law that arbitrarily, unreasonably, or unnecessarily infringe, deny, or disparage individual life, liberty, or property interests.

Due Process Clause of the Fourteenth Amendment: "No state shall . . . deprive any person of life, liberty, or property without due process of law."

The first step in a substantive due process analysis is to identify the private life, liberty, or property interest affected by the substantive rule of law. Then we determine if the substantive rule of law arbitrarily or unreasonably or unnecessarily infringes the identified interest. At a minimum, the substantive rule of law must be rationally related to a legitimate state interest.

Have you even read Gitlow? You are again misrepresenting case law. Despite your assertion that freedom of speech has nothing to do with "liberty" protected by "due process of law," Gitlow says you're wrong.

GITLOW (1925):

Indentified Liberty Interest:

"For present purposes we may and do assume that freedom of speech and of the press-which are protected by the First Amendment from abridgment by Congress-are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States." GITLOW v. PEOPLE OF STATE OF NEW YORK, 268 U.S. 652, 666 (1925)

Identified State Interest:

"By enacting the present statute the State has determined, through its legislative body, that utterances advocating the overthrow of organized government by force, violence and unlawful means, are so inimical to the general welfare and involve such danger of substantive evil that they may be penalized in the exercise of its police power." Gitlow, 268 U.S. at 668.

Substantive due process test:

"And the case is to be considered 'in the light of the principle that the State is primarily the judge of regulations required in the interest of public safety and welfare'; and that its police 'statutes may only be declared unconstitutional where they are arbitrary or unreasonable attempts to exercise authority vested in the State in the public interest.'" Gitlow, 268 U.S. at 668-669 (quoting Great Northern Ry. v. Clara City, 246 U.S. 434, 439).

HOLDING: The state's substantive rule of law affecting Gitlow's liberty interests (freedom of speech, freedom of press) does not violate the Due Process Clause of the Fourteenth Amendment which protects liberty from arbitrary government infringements:

"It cannot be said that the State is acting arbitrarily or unreasonably when in the exercise of its judgment as to the measures necessary to protect the public peace and safety, it seeks to extinguish the spark without waiting until it has enkindled the flame or blazed into the conflagration. It cannot reasonably be required to defer the adoption of measures for its own peace and safety until the revolutionary utterances lead to actual disturbances of the public peace or imminent and immediate danger of its own destruction; but it may, in the exercise of its judgment, suppress the threatened danger in its incipiency. . . .

"We cannot hold that the present statute is an arbitrary or unreasonable exercise of the police power of the State unwarrantably infringing the freedom of speech or press; and we must and do sustain its constitutionality." Gitlow, 268 U.S. at 669-670.

Laughing

It is apparent that bragging about your law school education doesn't bolster your erroneous assertions concerning basic constitutional law. When and if you read Gitlow and understand what it says, and understand that the Court "incorporated" the First Amendment LIMITATIONS applicable to Congress into the due process clause LIMITATIONS applicable to States via an ordinary substantive due process analysis, then perhaps the light switch will be activated.

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goodfielder wrote:

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

From a practical point of view, take a look at Scalia's hypocritical dissent in Troxel v. Granville, 530 U.S. 57 (2000), where Scalia, under the guise of pursuing original intent embodied in the text of the Constitution, ignores original intent to secure the entire universe of individual liberties from arbitrary government infringements, abdicates the independent role of the judiciary to safeguard liberty, and turns America into the land of despotism.

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goodfielder wrote:

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

From a practical point of view, take a look at Scalia's hypocritical dissent in Troxel v. Granville, 530 U.S. 57 (2000), where Scalia, under the guise of pursuing original intent embodied in the text of the Constitution, ignores original intent to secure the entire universe of individual liberties from arbitrary government infringements, abdicates the independent role of the judiciary to safeguard liberty, and turns America into the land of despotism.

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Quote:

Have you forgotten? I have never said that the word "liberty" in the Fourteenth Amendment protects liberty. In case you have forgotten, you're the one who makes the ridiculous claim that "liberty" protects liberty in a substantive due process analysis. For the millionth (it seems) time: In a substantive due process analysis, it is "due process of law" that protects individual life, liberty, and property interests by prohibiting states from enforcing substantive rules of law that arbitrarily, unreasonably, or unnecessarily infringe, deny, or disparage individual life, liberty, or property interests.

For the millionth time Debra get over the fact you can read and comprehend hardly anything I have said. It is sad, pathetic, and a waste of my time repeating things to you.

You, like the pharisees and Sadducees of Jesus' time, choke on the extreme minors and irrelevant words. I hastily use the word "protect" in association with "liberty" and based on this extreme minor and irrelevant word you run off with it when anyone with even the slightes modicum of reading comprehension would have understood what I meant was whether or not the "interest" was one within the conception of "liberty" in the 14th amendment. Not only I have made it abundantly clear this is what I intended and meant to say in the last post but in the last several posts, especially with one directed towards you. Despite this clarification you still make the same tire argument when other posters here have undestood what I was saying much sooner than you.

First of all I have said repeatedly and everybody here but you has understood what I have said. The word "liberty" either does or does not include an "interest". I have said repeatedly the first step in the analysis is whether or not the interest at issue is considered "liberty".

I then described the methodology the Court uses to determine whether the interest is fundamental.

Then after making a determination the interest fundamental or not fundamental the Court will then apply a strict scrutiny or rational basis analysis.

This is the approach the Court takes in a substantive due process of law analysis. I have said this the last several posts but you and only you have failed to recognize this fact.

Consequently, nothing I have said is contrary to what you have said. You are making an argument about something we do not disagree about. You and only you could possibly make an argument out of an issue in which there is no disagreement. Why? This comes from your inability to read my posts and understand what I am saying.

Quote:

You are again misrepresenting case law. Despite your assertion that freedom of speech has nothing to do with "liberty" protected by "due process of law," Gitlow says you're wrong.

First of all I am not misrepresenting case law. Second of all I never said the word "liberty" has nothing to do with free speech.

Third of all I have said the due process clause, which would includes the word liberty, INCORPORATES the Free Speech Clause onto the states. So it is not so much the word "liberty" includes free speech as an interest that protects free speech but rather the Due Process Clause of the 14th amendment incorporates the Free Speech Clause onto the states so as to make BINDING on the states the Free Speech clause of the First Amendment.

For present purposes we may and do assume that freedom of speech and of the press-which are protected by the First Amendment from abridgment by Congress-are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States." GITLOW v. PEOPLE OF STATE OF NEW YORK, 268 U.S. 652, 666 (1925)

The Court is saying the Free Speech and Press clauses of the First Amendment are now binding on the states via the due process clause of the 14th amendment. Hence, it necessarily becomes a First Amendment issue and analysis as opposed to a due process analysis in Scalia's mind.

You were trying to argue Scalia was a hypocrit in not applying an originalist approach of "procedure" in regards to the due process clause as it related to Free Speech. Well the reason Scalia does not is because it is still a First Amendment issue and not so much a due process issue. Since the First Amendment Free Speech clause is binding on the states then Scalia is going to apply, as the rest of the U.S. Supreme Court has done, a First Amendment Free Speech analysis. This is why, contrary to your erroneous assertion, Scalia is not a hypocrit in his First Amendment Free Speech analysis as such a provision is incorporated as binding on the states.

Now here is the part we all can laugh at in regards to your post.

Quote:

"We cannot hold that the present statute is an arbitrary or unreasonable exercise of the police power of the State unwarrantably infringing the freedom of speech or press; and we must and do sustain its constitutionality." Gitlow, 268 U.S. at 669-670.

It is apparent that bragging about your law school education doesn't bolster your erroneous assertions concerning basic constitutional law. When and if you read Gitlow and understand what it says, and understand that the Court "incorporated" the First Amendment LIMITATIONS applicable to Congress into the due process clause LIMITATIONS applicable to States via an ordinary substantive due process analysis, then perhaps the light switch will be activated.

First of all this test is no longer applied to factual situations like the one in Gitlow. The test now is the one announced by the Court in Bradenburg v. Ohio.

It appears it was worth boasting of my great legal education as I learned the correct legal standard NOW applied to factual situations like the one in Gitlow as opposed to operating under the delirious position you do in asserting Gitlow is actually follwed by the Court today for facts similar if not identical to those in Gitlow.

Fact is the Gitlow test has not been followed since the Court decided Bradenburg v. Ohio decided in 1969.

The legal test today is the following: Advocacy of the use of force or of law violation is unprotected when directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

This is now the test the Court uses and applies in determining whether or not the state has impaired not the due process clause of the 14th amendment but rather the Free Speech Clause of the First Amendment regarding "inciting" speech.

Had you actually bothered to research Gitlow in a Constitutional law book or a First Amendment Free Speech book, I have one called "The First Amendment: Cases and Problems, by Eugene Volokh, Professor of Law at UCLA, along with my book, Constitutional Interpretation, 6th Edition by Craig Ducat, and Modern Constitutional Law, 6th edition by Rotunda, all say the same thing.

Gitlow v. New York, Schenk v. United States, Debs. v. United States, Abrams v. United States, Whitney v. California, and Bradenburg v. Ohio, Dennis and Yates v. United States are all about "incitement" cases.

For years the Court was unclear as to what standard to apply to the states or the federal government until, 1969 when the Court decided Bradenburg v. Ohio. Now the standard for determining whether or not the state or federal government has infringed upon Free Speech in the context of "incitement" is decided by the Brandenburg test and not the Gitlow test.

Why the Bradenburg test? Because this is the analysis under the First Amendment.

Out of all the Constitutional law books I have not ONE of them says free speech is protected by substantive due process. Not one! ALL of them are UNANIMOUS in asserting the First Amendment protects free speech from state impairment via the "incorporation" doctrine of the Free Speech clause onto the states by the due process clause. But this is not "substantive" due process. So it is the First Amendment and not substantive due process which protects free speech.

This is why the Court in recent years, most notably the last forty to fifty years, has looked at it's First Amendment jurisprudence and the First Amendment in regards to state impairment of the Free Speech clause. Why? Because there is nothing substantive about it at all but rather the Free Speech clause, along with the other 8 amendments, are not "substantively" held to be binding on the states but rahter are "incorporated" onto the states as binding.

This is why Debra can't find a recent case like Gitlow. Why? Because the Court has followed the "incorporation" doctrine and not a "substantive" doctrine in making the 8 amendments binding on the states. Substantive due process is the proposition the word "liberty" protects areas and zones of interest OTHER THAN those specifically enumerated and mentioned in the Bill of Rights.

I have cited the cases where the Court talks about "incorporation" and not "substantive due process" in regards to the 8 Bill of Rights. Despite these cases, which clearly says Debra is wrong, and all of those constitutional law books, which clearly say she is wrong, she has the audacity to claim she is right.

The fact is the Court has "incorporated" the Free Speech clause onto the states and now it is the First Amendment, as opposed to substantive due process, which protects free speech because the Free Speech clause of the First amendment is BINDING. So it is the First Amendment, binding on the states, which protects free speech and not substantive due process.

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Now for anyone who is interested here is where Debra is confusing herself.

She seems to think since the Court is holding the First Amendmen Free Speech clause as "fundamental" and substantive due process also has a "fundamental"analysis that the Court is applying "substantive" due process in regards to the 8 amendments.

This simply is not true. For anyone who actually bothered to read my initial post on this the word "fundamental" in regards to the 8 amendments did not originate as a "substantive due process" analysis but rather was a term of art used by Justice Cardozo in deciding which 8 amendments were binding on the states.

Palko v. Connecticut is the case where Justice Cardozo the standard by which the Court would use to determine if some provision of the 8 amendments is incorporated against the states. the incorporation of a given right is dependent upon whether it was found to be implicit in the concept of ordered liberty.

This approach, according to Ducat, had the advantage over total incorporation of guaranteeing fundamental requirements, such as free speech in the First amendment, without imposing on the states frivolous requirements, such as providing the option of a jury trial in all civil suits involving 20 dollars or more. The book, Constitutional Interpretation, in which Ducat is the author, does not even include the incorporation of the 8 bill of rights in the substantive due process section. Why? Because there is a difference between substantive due process and incorporation doctrine of the 8 amendments onto the states.

Modern Constitutional Law, by Rotunda, 6th edition, by West Group, actually separates Substantive Due Process from Incorporation.

Page 470 A Note On the Incorporation of the Bill of Rights

[/I]The Court has thus used the due process clause....to incorporate some, but not all, of the substantive limitations of the Bill of Rights, and to apply those limitations to the states by virtue of the due process clause of the Fourteenth Amendment. The modern test to determine whether a guarantee of the Bill of Rights also applies to the states is whether the clause in question is "fundamental to the American scheme of justice."

Now what comes next is important. It goes to reinforce what I said in the most recent post the analysis is not a substantive due process analysis but rather the analysis becomes one in regards to the amendment incorporated onto the states. For example, in modern times when a state impairs free speech they do not engage in a substantive analysis per se but rather focus upon the language of the First Amendment and applies the same standard it does against the federal government.

What exactly does this mean? Well the Court is going to apply a strict scrutiny standard in regards to free speech cases not because of substantive due process but rather because strict scrutiny is the standard the Court applies in regards to the federal government. In other words, the First Amendment requires a strict scrutiny standard and so it is applied to the states because of the First Amendment and not because of substantive due process.

Under the modern view, once a right is incorporated, it is applied to limit the states in the same way it is applied to limit the Federal Government.....The Court has incorporated all of the First Amendment, Cantwell v. Connecticut.....Fourth Amendment has been incorporated, Wolf v. Colorado. Fifth Amendment's guarantee of a grand jury has not been applied to the states but the other guarantees of that Amendment are incorporated.[/I]

So on and so forth. The point is the rights are "incorporated" and the "analysis" is one rooted in the amendment itself as opposed to "substantive due process".

The cases I posted on this issue yesterday support this notion, the cases I provided today reinforce it, and these two books on constitutional law strengthen what I have said thus far on this issue.

Now as to the original understanding of the words "due process" the book by Rotunda, as Ducat, reinforces what I have been saying along with those cases I have cited before.

The emphasis of the Due Process clause is on "process". As Mr. Justice Harlan once observed, it has been "ably and insistently argued in response to what we felt to be abuses by this Court of it's review power," that the Due Process Clause should be limited "to a guarantee of procedural fairness." Poe. v. Ullman (dissenting opinion). These arguments seemed persuasive to Justices Holmes and Brandeis, Whitney v. California.

Mr Justice Black....never embraced the idea that the Due Process clause empowered the courts to strike down merely unreasonable or arbitrary legislation.

And they would be correct because the words "due process" did not "originally" mean anything other than "procedural" fairness.

However, Scalia is not a hypocrit for applying a "procedural" fairness analysis to the First Amendment because it is the First Amendment itself, and not the substantive due process clause or the due process clause per se, which protects free speech. The Due Process clause merely "incorporates" the Amendments as "binding" on the states and THEN the Amendment itself becomes controlling and not the due process clause analysis.

Perhaps when you grasp this fact the light will go on in your own head. But I doubt it. I doubt you will actually grasp much of what I have said. You will choke on the minors, ignore the case law I have provided, and cite case law espousing standards which has not been applied in years.

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