2
   

Activist Judges

 
 
James Madison
 
  1  
Reply Tue 18 Oct, 2005 04:59 pm
Parados, the Court said the fact ballot examiners, applying the same standards to each chad, could not yield consistent results.

For example one examiner would look at a chad and applying some set of standards determine it was a vote for Gore. Then another examiner would look at the chad and applying the same standards as the examiner before reach a completely different outcome, namely determine the chad indicated a vote for Bush.

This disparity in the results despite the fact the same standard was being used disturbed the Court.

Second of all, in some instances no standards were applied at all and whether or not a chad was a vote for Gore of Bush was just a "guess".

Both of these disturbed the Court and determined it violated the Equal Protection clause of both Bush and Gore.

Now is it judicial activism? As I said before I do not know at this point. I would actually have to read what the words originally meant to the Framers.
0 Replies
 
James Madison
 
  1  
Reply Tue 18 Oct, 2005 05:02 pm
Joe from Chicago:

The Court has used the due process clause, namely the word liberty, to asset much more than the Bill of Rights are binding on the states. The Court has used the word "liberty" to assert certain zones of privacy, such as freedom to have an abortion, marital privacy to use contraceptives, same sex sodomy between consenting adults, freedom to marry members of the opposite race, are all liberty interests and therefore, protected from state infringement unless the state passes a very high hurdle of strict scrutiny.
0 Replies
 
James Madison
 
  1  
Reply Tue 18 Oct, 2005 05:29 pm
Now here is what the Court said in Albright v. Oliver. It just goes to reinforce what I have previously said, namely the amendment incorporated protects the rights secured in the amendment and not substantive due process.

Albright v. Oliver:

Protections of substantive due process are for most part accorded to matters relating to marriage, family, procreation and right to bodily integrity. See, e.g., Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 847-849, 112 S.Ct. 2791, 2804-2806, 120 L.Ed.2d 674 (1992). (describing cases in which substantive due process rights have been recognized). Petitioner's claim to be free from prosecution except on the basis of probable cause is markedly different from those recognized in this group of cases.

When a particular Bill of Rights provision has been made applicable to states by Fourteenth Amendment, and provides an explicit textual source of constitutional protection against particular sort of government behavior, that amendment and not any more generalized notion of substantive due process must be the guide for analyzing claims. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443. ....Albright's claimed right to be free from prosecution without probable cause must be judged under the Fourth Amendment, and that substantive due process, with its "scarce and open-ended" "guideposts for responsible decisionmaking," Collins v. Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 1068, 117 L.Ed.2d 261, can afford Albright no relief. Where a particular Amendment "provides an explicit textual source of constitutional protection" against a particular sort of government behavior, "that Amendment, not the more generalized notion of 'substantive due process,' must be the guide for analyzing" such a claim. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443. Substantive due process should be reserved for otherwise homeless substantial claims, and should not be relied on when doing so will duplicate protection that a more specific constitutional provision already bestows.


So what are the majority of the Justices saying here? Exactly what I have been saying thus far. Once one of the 8 amendments is held to be incorporated onto the states, it is the Amendment itself which provides the source of the protection and NOT any notion of substantive due process.

So Debra this case, and the majority of the Justices in the case, are asserting I am right! That is why you had to cite a case decided in 1920 something. The fact is the modern Court, in fact the Court over the last forty to fifty years, has not used substantive due process to protect rights secured in one of the 8 amendments when those rights in those amendments are held to be incorporated onto the states.

Rather, once the amendment is held to be incorporated onto the state it is the AMENDMENT itself which is controlling and not substantive due process. The majority of Justices in the case are telling you the same thing. Once the amendment is incorporated it is the Amendment which is controlling as a source of protection and not substantive due process. Substantive due process is not the guide when one of the amendments is incorporated onto the states but the amendment itself is the guide. The same theme is repeated by the majority of Justices in the bolded material above. Essentially you were wrong and I was right.

So contrary to your erroneous claim Scalia is a hypocrit for not applying a procedural analysis to those amendments incorporated onto the states by the due process clause, Scalia is not a hypocrit. Why? Because it is the text of the incorporated Amendment which is controlling and not substantive due process of the 14th amendment which is controlling. The Majority of the Justices say so in this case.

Now I guess this just goes to show I got every penny worthy of my excellent legal education. It feels good to be right and vindicated, especially by the words of the Justices on the U.S. Supreme Court who say almost identical what I have said.
0 Replies
 
joefromchicago
 
  1  
Reply Wed 19 Oct, 2005 08:18 am
James Madison wrote:
Joe from Chicago:

The Court has used the due process clause, namely the word liberty, to asset much more than the Bill of Rights are binding on the states. The Court has used the word "liberty" to assert certain zones of privacy, such as freedom to have an abortion, marital privacy to use contraceptives, same sex sodomy between consenting adults, freedom to marry members of the opposite race, are all liberty interests and therefore, protected from state infringement unless the state passes a very high hurdle of strict scrutiny.

But how would constitutional jurisprudence be any different if, instead of "liberty," the justices concentrated on "privileges or immunities?" If access to contraception, for instance, is regarded as a "penumbral" right under the due process clause, why do you think it wouldn't be under the privileges or immunities clause?

Justice Bushrod Washington, acting as a circuit justice, gave an influential definition of the "privileges and immunities" clause in article IV. In Corfield v. Coryell, he stated:
    The inquiry is, what are the privileges and immunities of citizens in the several states?" We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised.
Note that Washington did not confine his analysis to those rights enumerated in the bill of rights, and he included within privileges and immunities the enjoyment of liberty. If the supreme court discarded substantive due process and returned to the framers' intent of using the privileges or immunities clause as a means of applying the bill of rights to the states, we would still be dealing with the substantive meaning of "liberty" in the context of fundamental rights. It would be just as easy (or perhaps even easier), then, to include access to contraception among a person's privileges and immunities as it would be to include it as a right under substantive due process.
0 Replies
 
Debra Law
 
  1  
Reply Wed 19 Oct, 2005 10:19 am
James Madison wrote:
Both of these disturbed the Court and determined it violated the Equal Protection clause of both Bush and Gore.

Now is it judicial activism? As I said before I do not know at this point. I would actually have to read what the words originally meant to the Framers.



JM is wrong. Despite his bragging about graduating from a top tier law school where he learned about constitutional law, etc., and bragging that constitutional law is his specialty, and bragging about his extensive knowledge of original meaning and textualism--JM misrepresents the actual holding of the case and evades the judicial activism question. A bona fide constitutional specialist who adheres to textualism and original meaning would know the answer to the question posed.

Although JM asserts the Court "determined it violated the Equal Protection clause of both Bush and Gore," that's NOT what the Court determined. JM failed to check his facts before speaking--but he's following in the footsteps of his idol, Scalia, who also fails to check his facts before he blurts nonsense out of his mouth (e.g., that "separation of church and state" made the Jews unsafe in Nazi Germany). Rolling Eyes

The Court did not determine that the recount violated both Bush's and Gore's rights under the equal protection clause of the Fourteenth Amendment. The decision did not hinge on the presidential candidates' rights; the decision was based on equal protection of voters' rights and DUE PROCESS of law (both procedural and substantive). The Court analyzed the substantive rule imposed by the Florida Supreme Court for the recount and determined that substantive rule infringed upon a fundamental right by arbitrarily subjecting the votes to disparate treatment wherein one person's vote was valued over the vote of another in violation of both "due process of law" and "equal protection of the laws."

The Court began its analysis by identifying a FUNDAMENTAL RIGHT--the right to vote for presidential electors as prescribed by the state legislature with equal weight given to each vote. As always, both substantive and procedural due process and equal protection principles abhor arbitrary governmental infringements upon individual life, liberty, and property interests.

Here's what the Court said:

Quote:
The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College. U. S. Const., Art. II, ยง1. . . . When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. . . .

The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another. . . .

There is no difference between the two sides of the present controversy on these basic propositions. Respondents say that the very purpose of vindicating the right to vote justifies the recount procedures now at issue. The question before us, however, is whether the recount procedures the Florida Supreme Court has adopted are consistent with its obligation to avoid arbitrary and disparate treatment of the members of its electorate. . . .

The recount process, in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer. . . .

. . . we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards. When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied.

. . . Upon due consideration of the difficulties identified to this point, it is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work. It would require not only the adoption (after opportunity for argument) of adequate statewide standards for determining what is a legal vote, and practicable procedures to implement them, but also orderly judicial review of any disputed matters that might arise. . . .

None are more conscious of the vital limits on judicial authority than are the members of this Court, and none stand more in admiration of the Constitution's design to leave the selection of the President to the people, through their legislatures, and to the political sphere. When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.

The judgment of the Supreme Court of Florida is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.


See GEORGE W. BUSH, et al., PETITIONERS v. ALBERT GORE, Jr., et al.


With respect to the "judicial activism" question, if one applies the SCALIA "textual, original meaning" method of constitutional interpretation, then YES--the Supreme Court erred by straying from the original meaning of the text and applying modern Fourteenth Amendment jurisprudence developed through "judicial activism" as the textualists charge. As we all know, however, Scalia (the hypcrite) merely uses "textualism" as a self-serving device to attack the Court when he disagrees with result and ignores his "textualism" mantra when the Court reaches the result he desires.

The original-meaning textualists assert that the framers of the Fourteenth Amendment (as their forefathers before them) divided the concept of "liberty" into civil rights and political rights (e.g., the right to vote). The "original intent" camp argues that the Fourteenth Amendment was intended to apply to civil rights only--and not to political rights. They argue, if the Fourteenth Amendment was intended to apply to political rights, then adoption of the Fifteenth Amendment and the Nineteenth Amendment would have been unnecessary.

See: Scalia Blowing Smoke Again, by Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment, Director, The Information Society Project at Yale Law School.

Jack M. Balkin wrote:
Scalia defended the court's ruling in the Bush versus Gore decision that settled the 2000 presidential race. He said it met the test of constitutional originalism by relying on the Constitution's clause saying that citizens will have equal protection before the laws.

In the Florida recount halted by the court, "some people had their votes counted and others did not," he said.

I hope he was misquoted. There is almost no evidence that the Framers of the Fourteenth Amendment believed that the Amendment was designed to remedy inequalities in voting. . . .

Again I really hope Scalia was misquoted here, because this is the sort of originalist argument that gives originalism a bad name. I don't have problems with making arguments about original understanding. They are as legitimate as any other form of constitutional argument. What I have a problem with is people like Scalia insisting that their views are justified by originalism (and their opponents lack fidelity to the Constitution) when they haven't a clue about the actual history or are just making the history up. When people like Scalia do this, they are using originalism as a mantra to rationalize their own political values. They are doing exactly what they accuse those who disagree with them of doing.



Jack M. Balkin, Yale Law School:

http://www.yale.edu/lawweb/jbalkin/index.htm

http://www.yale.edu/lawweb/jbalkin/balkbibl.htm

Areas of Expertise:
constitutional law . . . .
0 Replies
 
parados
 
  1  
Reply Wed 19 Oct, 2005 11:14 am
James Madison wrote:
Parados, the Court said the fact ballot examiners, applying the same standards to each chad, could not yield consistent results.

Since voting first started in this country it has been possible for 2 people to disagree on how some ballots were marked. That is why Florida has a 3 person team to decide. It certainly can't be declared to be original intent was that people can't decide the intent of a voter on a ballot.

Quote:
For example one examiner would look at a chad and applying some set of standards determine it was a vote for Gore. Then another examiner would look at the chad and applying the same standards as the examiner before reach a completely different outcome, namely determine the chad indicated a vote for Bush.
No instance ever occurred to my knowledge of one ballot being read for different candidates by different judges. I don't see it in the court ruling. Can you point it out for me? Some people thought it was a vote, another thought it wasn't. That is pretty standard for any procedure where people are judging something that is questionable. People have different opinions. The founders understood that.

Quote:
This disparity in the results despite the fact the same standard was being used disturbed the Court.
So if a machine reads a ballot differently one time than it did another it is OK with the court? Machines have disparity in results just like people. Such a reading would require that machines that can't read the same every time also be declared invalid. Different types of ballots and machines have drastically different error rates. If one county's machine has a 1% error rate and another county has a 6% error machine wouldn't that require the same remedy by the court under the "consistant results" standard? Such a standard would require that all the votes be thrown out in Florida.

Quote:
Second of all, in some instances no standards were applied at all and whether or not a chad was a vote for Gore of Bush was just a "guess".
Where did you pull this one from? 2 out of 3 people have to agree is hardly a "guess." And it wasn't just 2 out of 3 ordinary people. If the 3 original counters didn't all agree then it went to the county's 3 election judges for the final decision. Are you saying that election judges are not qualified to decide a valid ballot? I doubt that was the founder's intent at all.


Quote:
Both of these disturbed the Court and determined it violated the Equal Protection clause of both Bush and Gore.


Now is it judicial activism? As I said before I do not know at this point. I would actually have to read what the words originally meant to the Framers.
Are you going to seriously tell us that the framers never intended for people to decide voter intent based on examining the ballot? The framers never instituted or required any standards for deciding that intent. The framers were all too aware of the differences in people's standards. It is a weasel to say you have to research it. It is a MADE UP standard and can't even begin to be protected under the "originalism" claim.

The framers certainly never intended for the US courts to interpret state laws. Another "originalism" argument that dies under this ruling.


The entire point of this exercise with Bush v Gore is to show that "originalism" is simply an attempt to cloak personal opinions in some outward guise. The original intent of the founders is wide open to interpretation and no 2 "originalists" could probably agree on every instance. It is easy for any "originalist" to pull statements out of context and declare that was the "intent". It is just as much BS as the "judicial activist" argument. Scalia is no more privy to or likely to act on the founder's intent than is Souter, Ginsberg, Warren, White or any judge past, present or future.
0 Replies
 
Debra Law
 
  1  
Reply Wed 19 Oct, 2005 01:38 pm
James Madison wrote:
Now here is what the Court said in Albright v. Oliver. It just goes to reinforce what I have previously said, namely the amendment incorporated protects the rights secured in the amendment and not substantive due process.

Albright v. Oliver:

Protections of substantive due process are for most part accorded to matters relating to marriage, family, procreation and right to bodily integrity. See, e.g., Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 847-849, 112 S.Ct. 2791, 2804-2806, 120 L.Ed.2d 674 (1992). (describing cases in which substantive due process rights have been recognized). Petitioner's claim to be free from prosecution except on the basis of probable cause is markedly different from those recognized in this group of cases.

When a particular Bill of Rights provision has been made applicable to states by Fourteenth Amendment, and provides an explicit textual source of constitutional protection against particular sort of government behavior, that amendment and not any more generalized notion of substantive due process must be the guide for analyzing claims. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443. ....Albright's claimed right to be free from prosecution without probable cause must be judged under the Fourth Amendment, and that substantive due process, with its "scarce and open-ended" "guideposts for responsible decisionmaking," Collins v. Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 1068, 117 L.Ed.2d 261, can afford Albright no relief. Where a particular Amendment "provides an explicit textual source of constitutional protection" against a particular sort of government behavior, "that Amendment, not the more generalized notion of 'substantive due process,' must be the guide for analyzing" such a claim. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443. Substantive due process should be reserved for otherwise homeless substantial claims, and should not be relied on when doing so will duplicate protection that a more specific constitutional provision already bestows.


So what are the majority of the Justices saying here? Exactly what I have been saying thus far. Once one of the 8 amendments is held to be incorporated onto the states, it is the Amendment itself which provides the source of the protection and NOT any notion of substantive due process.

So Debra this case, and the majority of the Justices in the case, are asserting I am right! That is why you had to cite a case decided in 1920 something. The fact is the modern Court, in fact the Court over the last forty to fifty years, has not used substantive due process to protect rights secured in one of the 8 amendments when those rights in those amendments are held to be incorporated onto the states.

Rather, once the amendment is held to be incorporated onto the state it is the AMENDMENT itself which is controlling and not substantive due process. The majority of Justices in the case are telling you the same thing. Once the amendment is incorporated it is the Amendment which is controlling as a source of protection and not substantive due process. Substantive due process is not the guide when one of the amendments is incorporated onto the states but the amendment itself is the guide. The same theme is repeated by the majority of Justices in the bolded material above. Essentially you were wrong and I was right.

So contrary to your erroneous claim Scalia is a hypocrit for not applying a procedural analysis to those amendments incorporated onto the states by the due process clause, Scalia is not a hypocrit. Why? Because it is the text of the incorporated Amendment which is controlling and not substantive due process of the 14th amendment which is controlling. The Majority of the Justices say so in this case.

Now I guess this just goes to show I got every penny worthy of my excellent legal education. It feels good to be right and vindicated, especially by the words of the Justices on the U.S. Supreme Court who say almost identical what I have said.



Again, you have misunderstood the point or constructed a strawman to avoid addressing the point.

You claim that Scalia never looks at "LIBERTY" in the Fourteenth Amendment. You claim that Scalia and other texualists never have to concern themselves with the meaning of liberty in a due process analysis because the due process clause protects only one thing: procedure. At least that was your response to Parados's question about the hypothetical nose-picking statute.

And yet, we know that's not true. If Scalia NEVER concerns himself with discerning the meaning of liberty contained in the Fourteenth Amendment and consistently applied his textualism argument that the due process clause of the Fourteenth Amendment concerned itself merely with procedure, then it would make no difference if the liberty interest at issue was flag-burning or consensual sex. Scalia asserts that the State can deprive a person of life, liberty (which includes the fundamental right of freedom of speech), and property so long as the State provides procedure. Scalia asserts that the State may abrogate individual liberty interests through a "validly enacted statute."

If Scalia was CONSISTENT, and not a hypocrite, then he would apply the due process clause consistently and assert that the State may abrogate all liberty interests (flag burning, consensual sex) through a validly enacted statute.

You responded that you went to a top tier law school, studied constitutional law and the first amendment, and you learned about "incorporation." Freedom of speech protected by the First Amendment was incorporated into the Fourteenth Amendment, so Scalia wasn't applying the Fourteenth Amendment, neener-neener-neener, Scalia was applying the First Amendment.

Your response was intellectually dishonest because your response FAILS to take into consideration HOW freedom of speech was incorporated into the Fourteenth Amendment in the first place.

If you truly learned about "incorporation" in law school, then you learned that the Court engaged in SELECTIVE incorporation. The Court selected ONLY those liberty interests that were protected from FEDERAL infringement in the Bill of Rights based upon their fundamental nature. If the liberty interest (e.g., freedom of speech) was deemed a fundamental right, then the Court determined that liberty interest was embraced by the Fourteenth Amendment and was protected against STATE infringements. If it wasn't a fundamental liberty interest, (e.g., indictment by a grand jury) wherein justice and liberty would NOT be sacrificed if it wasn't protected, then it wasn't incorporated into the Fourteenth Amendment and wasn't made applicable against the states.

THE INCORPORATION of the right in the first instance required a substantive due process analysis as set forth in the Gitlow case:

"For present purposes we may and do assume that freedom of speech and of the press - which are protected by the 1st Amendment from abridgment by Congress - are among the fundamental personal rights and 'liberties' protected by the due process clause of the 14th Amendment from impairment by the states."

AFTER the selective incorporation, then the courts will apply the same analysis to state infringements of the liberty interest that courts apply to federal infringements of the liberty interest developed through First Amendment jurisprudence. SO WHAT? Claiming that Scalia is applying the First Amendment (via the Fourteenth Amendment) to STATE infringements of a liberty interest due to "incorporation" merely BEGS THE QUESTION. (The same as your previous assertion that due process merely requires a "validly" enacted statute--your statement begs the question because you haven't explained how we determine if a statute is valid or invalid. If we don't apply a substantive due process analysis, how else do we determine validity? Still waiting for your answer.)

[As an aside, it is interesting to note that First Amendment jurisprudence essentially looks to the alleged protected interest, e.g., flag burning (which is NOT explicitly mentioned in the First Amendment--and as much as you HATE defining liberty, the Court had to define the protected liberty interest of freedom of speech to include flag-burning), and looks to the substantive rule of law that infringes upon the individual interest affected, and determines if the substantive rule of law unreasonably, arbitrarily, or unnecessarily infringes upon the protected interest through tests devised by the Court. And this is textually strange because the First Amendment explicitly states CONGRESS SHALL MAKE NO LAW abriding freedom of speech . . . and yet the due process clause of the Fifth Amendment says that CONGRESS may deprive persons of their liberty interest IF it does so WITH due process of law . . . which opens the door again to the question of whether due process of law embodies a substantive component that protects the people from ARBITRARY deprivations . . . and, if it does, then that would explain the development of First Amendment jurisprudence . . . but again, probably not something you would grasp given your narrow views.)

If the text of the due process clause does not protect the people from arbitrary government infringements of their liberty interests and merely secures procedure as Scalia contends, then there would have been no textual basis that would have allowed for INCORPORATION in the first place. Understand? I know that's a complex concept, but someone who claims to be a constitutional specialist who espouses textualism and original meaning should understand.

And, if the text of the due process clause does not protect liberty from arbitrary state infringements and merely protects procedure as Scalia contends, there would have been no textual basis for the Court to determine that the right to vote is a liberty interest protected against arbitrary state infringements (Bush v. Gore) and there would have been no textual basis for the Court to determine that the right to engage in consensual sex was a liberty interest protected against arbitrary state infringements.

NEVERTHELESS, Scalia, the hypocrite, conveniently abandons textualism (original-meaning) as he claims it to be (without regard to facts, but according to his self-serving interests) in order to support flag-burning and the right to vote against arbitrary government infringements, but uses textualism (original meaning) to oppose the right to engage in adult, consensual sex against arbitrary government infringments.

If you don't understand the basis for the charge of hypocrisy, I can keep explaining, but it probably won't be for your benefit . . . it will be for the benefit of those whom you attempt to fool . . . and your attempts are most likely unsuccessful, but we're entitled our laughs too. Laughing
0 Replies
 
James Madison
 
  1  
Reply Wed 19 Oct, 2005 05:08 pm
Quote:
JM is wrong.


No actually I am not wrong Debra. Ever since Parados asked the question my first reply to him included the words of, "If I recall correctly."

This is a simple admission I had not looked up the case nor did I ever make such a claim in subsequent replies to Parados on this very issue. So your entire claim I failed to check the facts is wrong. I never made a claim I had checked the facts. Just the opposite, I was making an admission I had not checked the facts, had not checked the case, and so your point I was wrong is moot since I never claimed to have reviewed the case before responding.
0 Replies
 
James Madison
 
  1  
Reply Wed 19 Oct, 2005 06:03 pm
Quote:
Again, you have misunderstood the point or constructed a strawman to avoid addressing the point.

You claim that Scalia never looks at "LIBERTY" in the Fourteenth Amendment. You claim that Scalia and other texualists never have to concern themselves with the meaning of liberty in a due process analysis because the due process clause protects only one thing: procedure. At least that was your response to Parados's question about the hypothetical nose-picking statute.

And yet, we know that's not true. If Scalia NEVER concerns himself with discerning the meaning of liberty contained in the Fourteenth Amendment and consistently applied his textualism argument that the due process clause of the Fourteenth Amendment concerned itself merely with procedure, then it would make no difference if the liberty interest at issue was flag-burning or consensual sex. Scalia asserts that the State can deprive a person of life, liberty (which includes the fundamental right of freedom of speech), and property so long as the State provides procedure. Scalia asserts that the State may abrogate individual liberty interests through a "validly enacted statute."

If Scalia was CONSISTENT, and not a hypocrite, then he would apply the due process clause consistently and assert that the State may abrogate all liberty interests (flag burning, consensual sex) through a validly enacted statute.


No you are confused, that is the problem.

Scalia is not going to apply a procedural analysis to the First Amendment because it is the First Amendment which is controlling and not the due process clause of the 14th amendment. This is the point you have yet to comprehend.

The reason Scalia does not apply a procedural analysis to free speech issues is because the First Amendment Free Speech clause is binding on the states and therefore, it is the First Amendment Free Speech Clause, and not the due process clause of the 14th amendment, which forms the basis and analysis of not only Scalia's analysis but the Court's analysis regarding state impairment of speech.

The fact the First Amendment has been incorporated as binding on the states is what makes all the difference here. Since it is the First Amendment Free Speech clause which protects speech, and not the due process clause of the 14th amendment, then it makes perfect sense Scalia would not apply a due process analysis but rather a 1st amendment analysis.

Hence, since it is the First Amendment which provides the basis to protect free speech, and not the due process clause, explains why Scalia does not apply a due process analysis at all. So, contrary to your mistaken claim Scalia is not being inconsistent.

Now if the Court actually still followed the approach in Gitlow you'd have a stronger case for Scalia's hypocrisy. But the Court, for the last 40 plus years, has been relying upon the text of the incorporated amendment as a source of protection as opposed to the due process clause itself. Hence, it is the incorporated amendment which provides the basis of protection and not the due process clause. Consequently, Scalia nor the Court are going to employ a due process analysis to an incorporated amendment because it is the incorporated amendment itself which serves as the basis of protection.

So you are just wrong on this point. Scalia is not being hypocritical. The only way this argument of yours works is if the text of the incorporated amendment did not afford the protection but rather the due process clause. However, as I have already demonstrated by the case of Albright, this is no longer true and has not been true for over 40 to fifty years. For the last 40 to 50 years the Court has consistently looked at the text of the incorporated amendment as the source of protection as opposed to the due process clause itself.

Quote:
Your response was intellectually dishonest because your response FAILS to take into consideration HOW freedom of speech was incorporated into the Fourteenth Amendment in the first place.


It does not matter how it was incorporated. It is irrelevant because the TEXT OF THE INCORPORATED AMENDMENT PROVIDES THE PROTECTION AND NOT DUE PROCESS. This is what the Court said in Albright.

Albright: Protections of substantive due process are for most part accorded to matters relating to marriage, family, procreation and right to bodily integrity. See, e.g., Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 847-849, 112 S.Ct. 2791, 2804-2806, 120 L.Ed.2d 674 (1992). (describing cases in which substantive due process rights have been recognized). Petitioner's claim to be free from prosecution except on the basis of probable cause is markedly different from those recognized in this group of cases.

When a particular Bill of Rights provision has been made applicable to states by Fourteenth Amendment, and provides an explicit textual source of constitutional protection against particular sort of government behavior, that amendment and not any more generalized notion of substantive due process must be the guide for analyzing claims. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443. ....Albright's claimed right to be free from prosecution without probable cause must be judged under the Fourth Amendment, and that substantive due process, with its "scarce and open-ended" "guideposts for responsible decisionmaking," Collins v. Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 1068, 117 L.Ed.2d 261, can afford Albright no relief. Where a particular Amendment "provides an explicit textual source of constitutional protection" against a particular sort of government behavior, "that Amendment, not the more generalized notion of 'substantive due process,' must be the guide for analyzing" such a claim. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443. Substantive due process should be reserved for otherwise homeless substantial claims, and should not be relied on when doing so will duplicate protection that a more specific constitutional provision already bestows.


This clearly demonstrates it is "IRRELEVANT" how it is incorporated. Why? Because as the case tells us, " When a particular Bill of Rights provision has been made applicable to states by Fourteenth Amendment, and provides an explicit textual source of constitutional protection against particular sort of government behavior, that amendment and not any more generalized notion of substantive due process must be the guide for analyzing claims.............Substantive due process should be reserved for otherwise homeless substantial claims, and should not be relied on when doing so will duplicate protection that a more specific constitutional provision already bestows.


So it is irrelevant how it is incorporated. You can argue it was incorporated a certain way until you are blue in the face, your fingers fall off from excessive repetitive typing of an irrelevent point, or you develop carpal tunnel syndrome. The fact is ONCE the Amendment is INCORPORATED, it is the INCORPORATED AMENDMENT that must GUIDE for analyzing claims and not substantive due process.

You were and remain quite simply wrong on this issue.

Quote:
If you truly learned about "incorporation" in law school, then you learned that the Court engaged in SELECTIVE incorporation.


Already mentioned it in a previous post. Had you actually recalled what I have previously said you would have realized this fact.

In fact I said the following on the 17th of this month. 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.

Quote:
The Court selected ONLY those liberty interests that were protected from FEDERAL infringement in the Bill of Rights based upon their fundamental nature.


Already said this as well Debra. In fact I noted the case in which the standard was espoused, namely Justice Cardozo's line from the case of Palko v. Connecticut.

I said the following on the 17th of October. 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.


Quote:
THE INCORPORATION of the right in the first instance required a substantive due process analysis as set forth in the Gitlow case:

"For present purposes we may and do assume that freedom of speech and of the press - which are protected by the 1st Amendment from abridgment by Congress - are among the fundamental personal rights and 'liberties' protected by the due process clause of the 14th Amendment from impairment by the states."

AFTER the selective incorporation, then the courts will apply the same analysis to state infringements of the liberty interest that courts apply to federal infringements of the liberty interest developed through First Amendment jurisprudence. SO WHAT?


So what? The "so what" comes from the fact the Court for the last 40-50 years has followed the approach announced in Albright. The Gitlow approach has been abandoned for a very long time and guess what, I have already said Gitlow has been abandoned as an approach for a very long time. What the Court did in Gitlow is irrelevant now as it is no longer applied to those Amendments which have been incorporated.

What the Court said in Albright is what is done now and has been done for the last 40-50 years.

Albright: Protections of substantive due process are for most part accorded to matters relating to marriage, family, procreation and right to bodily integrity. See, e.g., Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 847-849, 112 S.Ct. 2791, 2804-2806, 120 L.Ed.2d 674 (1992). (describing cases in which substantive due process rights have been recognized). Petitioner's claim to be free from prosecution except on the basis of probable cause is markedly different from those recognized in this group of cases.

When a particular Bill of Rights provision has been made applicable to states by Fourteenth Amendment, and provides an explicit textual source of constitutional protection against particular sort of government behavior, that amendment and not any more generalized notion of substantive due process must be the guide for analyzing claims. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443. ....Albright's claimed right to be free from prosecution without probable cause must be judged under the Fourth Amendment, and that substantive due process, with its "scarce and open-ended" "guideposts for responsible decisionmaking," Collins v. Harker Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 1068, 117 L.Ed.2d 261, can afford Albright no relief. Where a particular Amendment "provides an explicit textual source of constitutional protection" against a particular sort of government behavior, "that Amendment, not the more generalized notion of 'substantive due process,' must be the guide for analyzing" such a claim. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443. Substantive due process should be reserved for otherwise homeless substantial claims, and should not be relied on when doing so will duplicate protection that a more specific constitutional provision already bestows.


There it is for all to see. When the amendment has been incorporated it is the text of the amendment itself which provides the basis of protection and analysis and not substantive due process nor due process itself.

So since the First Amendment speech clause has been incorporated onto the states it is the First Amendment speech clause, along with a First Amendment analysis, which will form the basis of the Court's analysis and ultimately will provide protection as opposed to substantive due process.

The Court in Albright simply says you are wrong Debra. Way wrong and consequently, Scalia is not a hypocrit.

Quote:
merely BEGS THE QUESTION


No it doesn't beg the question. The Court in Albright has spelled it out for you. You are just being petulent and obstinate on this issue. The Court has TOLD YOU once the amendment has been INCORPORATED, IT IS THE TEXT OF THE INCORPORATED WHICH PROVIDES THE PROTECTION AND BASIS OF ANALYSIS and NOT SUBSTANTIVE DUE PROCESS.

The Court in Albright could not tell you this any clearer! It is the TEXT of the INCORPORATED AMENDMENT which provides PROTECTION and NOT SUBSTANTIVE DUE PROCESS.

This is what the Court in Albright is saying. So no it is not begging the question and you are just wrong on this point.

Unless, of course, you want to argue Albright is somehow "wrong".

Quote:
If the text of the due process clause does not protect the people from arbitrary government infringements of their liberty interests and merely secures procedure as Scalia contends, then there would have been no textual basis that would have allowed for INCORPORATION in the first place. Understand? I know that's a complex concept, but someone who claims to be a constitutional specialist who espouses textualism and original meaning should understand.


IRRELEVANT THANKS TO ALBRIGHT, WHICH I HAVE REPEATEDLY POSTED HERE.

Again the Court in Albright has CLEARLY said, it is the INCORPORATED AMENDMENT and NOT SUBSTANTIVE DUE PROCESS which forms the basis of the analysis and AFFORDS THE PROTECTION.

Hence, the COURT will look to the TEXT of the INCORPORATED AMENDMENT to decide the case and WILL NOT look to substantive due process because this is what the Court in ALBRIGHT SAID.

I know this is a hard complex to understand but someone who claims to be a lawyer should be able to read and comprehend a case.

The Court in Albright is telling you it does not matter how the amendment was incorporated. ONCE INCORPORATED, whether it was done through Mars, Venus, Jupiter, some abstract mathematical formula, or by consulting the writings of Nostradamus, ONCE INCORPORATED by WHATEVER MEANS it is the INCORPORATED AMENDMENT which provides the BASIS of Protection and ANALYSIS and AS OPPOSED TO SUBSTANTIVE DUE PROCESS.

Since it is the incorporated AMENDMENT which is controlling and not substantive DUE PROCESS or the due process clause, then Scalia is not a hypocrit in looking to the TEXT of the INCORPORATED amendment to decide the case. WHY? Because the Court in ALBRIGHT has SAID the text of the INCORPORATED AMENDMENT is the BASIS Of the ANALYSIS and PROTECTION and not Substantive DUE PROCESS.

Hence, it makes perfect sense for Scalia to look to the text of an incorporated amendment because it is the text of the incoroprated amendment which is controlling and not substantive due process or the due process clause. Hence, he is not being HYPOCRITICAL.

Now I know you understand what Albright has said and I further know you are well aware Albright says the text of the incorporated amendment is controlling and not substantive due process, and consequently, you know Scalia is not being hypocritical by looking at the text of the incorporated amendment because it is the incorporated amendment which is controlling and not substantive due process, therefore, no hypocrisy.

Quote:
If you don't understand the basis for the charge of hypocrisy, I can keep explaining, but it probably won't be for your benefit . . . it will be for the benefit of those whom you attempt to fool . . . and your attempts are most likely unsuccessful, but we're entitled our laughs too.


Yeah they are laughing at how you botched what the Court said in Albright. I am laughing because it so weakens your argument as to not even make this an issue any longer.

Your entire claim Scalia is a hypocrit rests on the idea the due process clause, namely substantive due process, provides the basis of protection and therefore, Scalia should be applying a due process analysis.

Yet Albright specifically tells you the text of the INCORPORATED AMENDMENT provides the basis of protection and not substantive due process, which pretty takes your argument and trashes it. Your argument is so done it shouldn't even be recycled. Albright could not even be anymore clear in telling you personally your argument is wrong because the text of the incorporated amendment controlls and not substantive due process.

Since it is the text of the incorporated amendment which controls and provides the basis of protection and analysis as opposed to substantive due process or the due process clause then neither Scalia nor the Court is going to look ANYWHERE else other than the TEXT OF THE INCORPORATED AMENDMENT as the basis of the analysis and as the basis of protection.

If 7 Justices on the U.S. Supreme Court by their own words in an opinion they have written cannot tell you that you are clearly wrong, then in your own words neither myself or this opinion by the 7 Justices will really be for your benefit but rather for our amusement as you squirm and ignore what the Court in Albright said was controlling.

The Court said in Albright the text of the incorporated amendment and not substantive due process IS CONTROLLING, FORMS THE BASIS OF THE ANALYSIS AND AFFORDS PROTECTION AND NOT SUBSTANTIVE DUE PROCESS.

But it is amusing to watch someone essentially argue those 7 Justices are wrong, especially when they way they have said it is clear and unambiguous as to leave NO MISTAKE as to what they were saying. Now this all of us can laugh at.
0 Replies
 
Debra Law
 
  1  
Reply Wed 19 Oct, 2005 06:42 pm
James Madison wrote:
Parados, the Court said the fact ballot examiners, applying the same standards to each chad, could not yield consistent results.

For example one examiner would look at a chad and applying some set of standards determine it was a vote for Gore. Then another examiner would look at the chad and applying the same standards as the examiner before reach a completely different outcome, namely determine the chad indicated a vote for Bush.

This disparity in the results despite the fact the same standard was being used disturbed the Court.

Second of all, in some instances no standards were applied at all and whether or not a chad was a vote for Gore of Bush was just a "guess".

Both of these disturbed the Court and determined it violated the Equal Protection clause of both Bush and Gore.

Now is it judicial activism? As I said before I do not know at this point. I would actually have to read what the words originally meant to the Framers.




Why would you claim the Court said something that it didn't say? Why would you give examples of what the Court found when your examples are false? Why would you say some "fact" disturbed the Court when the alleged fact is a falsehood? Why would you claim the Court determined something that it didn't determine?

You made several statements of fact. ALL of your statements are false.

You claim to be an expert or specialist in constitutional law and textualism based on original meaning, yet you have no idea that everything you stated was FALSE and when asked a question within your claimed area of expertise, you claim you don't know. As mentioned before, you should concentrate less on using your alleged top tier law school training as a means to bolster your erroneous statements and concentrate more on trustworthiness.
0 Replies
 
Debra Law
 
  1  
Reply Thu 20 Oct, 2005 02:17 am
James Madison wrote:
Quote:
Again, you have misunderstood the point or constructed a strawman to avoid addressing the point.

You claim that Scalia never looks at "LIBERTY" in the Fourteenth Amendment. You claim that Scalia and other texualists never have to concern themselves with the meaning of liberty in a due process analysis because the due process clause protects only one thing: procedure. At least that was your response to Parados's question about the hypothetical nose-picking statute.

And yet, we know that's not true. If Scalia NEVER concerns himself with discerning the meaning of liberty contained in the Fourteenth Amendment and consistently applied his textualism argument that the due process clause of the Fourteenth Amendment concerned itself merely with procedure, then it would make no difference if the liberty interest at issue was flag-burning or consensual sex. Scalia asserts that the State can deprive a person of life, liberty (which includes the fundamental right of freedom of speech), and property so long as the State provides procedure. Scalia asserts that the State may abrogate individual liberty interests through a "validly enacted statute."

If Scalia was CONSISTENT, and not a hypocrite, then he would apply the due process clause consistently and assert that the State may abrogate all liberty interests (flag burning, consensual sex) through a validly enacted statute.


No you are confused, that is the problem.

Scalia is not going to apply a procedural analysis to the First Amendment because it is the First Amendment which is controlling and not the due process clause of the 14th amendment. This is the point you have yet to comprehend.



Rolling Eyes

That's not what I said. Go back and read what I actually said and try again.


Quote:
The reason Scalia does not apply a procedural analysis to free speech issues is because the First Amendment Free Speech clause is binding on the states and therefore, it is the First Amendment Free Speech Clause, and not the due process clause of the 14th amendment, which forms the basis and analysis of not only Scalia's analysis but the Court's analysis regarding state impairment of speech.



I never said that Scalia should apply a procedural due process analysis to a flag burning case. Go back and read what I actually said.

How was the fundamental right of freedom of speech protected from federal abridgment by the First Amendment incorporated into the Fourteenth Amendment in the first place?

If you don't know from a legal standpoint how this selective incorporation took place, I told you and I copied and pasted all the relevant passages from the Gitlow case to support what I told you. But you ignore what I actually said and make things up that are senseless.


Quote:
The fact the First Amendment has been incorporated as binding on the states is what makes all the difference here. Since it is the First Amendment Free Speech clause which protects speech, and not the due process clause of the 14th amendment, then it makes perfect sense Scalia would not apply a due process analysis but rather a 1st amendment analysis.


BUT HOW WAS the fundamental right of freedom of speech protected from federal abridgment by the First Amendment incorporated into the Fourteenth Amendment in the first place? The Gitlow Court used a substantive due process analysis to accomplish the "incorporation" and to determine that substantive rule of law at issue did NOT arbitrarily infringe upon Gitlow's liberty interest.

Again, the Gitlow Court noted that LIBERTY protected by due process of law against state infringement includes the fundamental right of FREEDOM OF SPEECH. LIKEWISE, in other cases, the Court noted that LIBERTY protected by due process of law against state infringement includes the fundamental rights to marriage, to the care, custody, and control of one's children, to determine one's own procreative destiny, and to privacy, etc.

Under a First Amendment analysis, the government may not infringe upon the fundamental LIBERTY interest--FREEDOM of SPEECH--unless the government uses means that are narrowly tailored to serve a compelling government interest. See, e.g., N. A. A. C. P. v. BUTTON, 371 U.S. 415 (1963) ("Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity. . . The decisions of this Court have consistently held that only a compelling state interest in the regulation of a subject within the State's constitutional power to regulate can justify limiting First Amendment freedoms."). If the substantive rule of law arbitrarily, unreasonably, or unnecessarily infringes upon the liberty interest (freedom of speech), the substantive rule of law is unconstitutional.

Under a substantive due process analysis, the government may not infringe upon a fundamental LIBERTY interest unless the government uses means that are narrowly tailored to serve a compelling government interest. If the substantive rule of law arbitrarily, unreasonably, or unnecessarily infringes upon the liberty interest, the substantive rule of law is unconstitutional.

Accordingly, your declaration that INCORPORATION makes all the difference is pure avoidance hogwash.


Quote:
Hence, since it is the First Amendment which provides the basis to protect free speech, and not the due process clause, explains why Scalia does not apply a due process analysis at all. So, contrary to your mistaken claim Scalia is not being inconsistent.


You're just begging the question and avoiding the issue because FREEDOM OF SPEECH is LIBERTY. The First Amendment protection of liberty against government infringement does not apply to the States unless it is channeled through the due process clause of the Fourteenth Amendment.

What you fail to understand is that a substantive due process analysis balances the private interest against the government interest to determine the reasonableness of the challenged substantive rule of law. A First Amendment analysis does the SAME THING. In both a substantive due process analysis and a First Amendment analysis, we're protecting LIBERTY from arbitrary government infringements.

Even though you argue that the liberty interest in freedom of speech is somehow different than other liberty interests because of the magic of INCORPORATION, (and you're only fooling yourself), that doesn't explain why Scalia supported the fundamental right to vote (another liberty interest) in Bush v. Gore. There is no explicit right to vote in the text of the Bill of Rights capable of being incorporated into the Fourteenth Amendment.




Quote:
This clearly demonstrates it is "IRRELEVANT" how it is incorporated. Why? Because as the case tells us, "When a particular Bill of Rights provision has been made applicable to states by Fourteenth Amendment, and provides an explicit textual source of constitutional protection against particular sort of government behavior, that amendment and not any more generalized notion of substantive due process must be the guide for analyzing claims.............Substantive due process should be reserved for otherwise homeless substantial claims, and should not be relied on when doing so will duplicate protection that a more specific constitutional provision already bestows.



Rolling Eyes

If you knew your facts and history, you wouldn't be spouting such nonsense. The court wants UNIFORMITY in the protection of individual liberty interest against both state and federal infringements. In the past, substantive due process protected liberties specified in the Bill of Rights, but almost always did so in a WATERED-DOWN fashion. The Court acted to provide the same level of protection for liberties against state infringements that the bill of rights provided against federal infringements. See BENTON v. MARYLAND, 395 U.S. 784 (1969):

The Supreme Court wrote:
III.

In 1937, this Court decided the landmark case of Palko v. Connecticut, 302 U.S. 319 . Palko, although indicted for first-degree murder, had been convicted of murder in the second degree after a jury trial in a Connecticut state court. The State appealed and won a new trial. Palko argued that the Fourteenth Amendment incorporated, as against the States, the Fifth Amendment requirement that no person "be subject for the same offence to be twice put in jeopardy of life or limb." The Court disagreed. Federal double jeopardy standards were not applicable against the States. Only when a kind of jeopardy subjected a defendant to "a hardship so acute and shocking that our polity will not endure it," id., at 328, did the Fourteenth Amendment apply. The order [395 U.S. 784, 794] for a new trial was affirmed. In subsequent appeals from state courts, the Court continued to apply this lesser Palko standard. See, e. g., Brock v. North Carolina, 344 U.S. 424 (1953).

Recently, however, this Court has "increasingly looked to the specific guarantees of the [Bill of Rights] to determine whether a state criminal trial was conducted with due process of law." Washington v. Texas, 388 U.S. 14, 18 (1967). In an increasing number of cases, the Court "has rejected the notion that the Fourteenth Amendment applies to the States only a `watered-down, subjective version of the individual guarantees of the Bill of Rights . . . .'" Malloy v. Hogan, 378 U.S. 1, 10 -11 (1964). 12 Only last Term we found that the right to trial by jury in criminal cases was "fundamental to the American scheme of justice," Duncan v. Louisiana, 391 U.S. 145, 149 (1968), and held that the Sixth Amendment right to a jury trial was applicable to the States through the Fourteenth Amendment. 13 For the same reasons, we today find that the double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage, and that it should apply to the States through the Fourteenth Amendment. Insofar as it is inconsistent with this holding, Palko v. Connecticut is overruled.

Palko represented an approach to basic constitutional rights which this Court's recent decisions have rejected. It was cut of the same cloth as Betts v. Brady, 316 U.S. 455 (1942), the case which held that a criminal defendant's right to counsel was to be determined by deciding in each case whether the denial of that right was "shocking to the universal sense of justice." Id., at 462. It [395 U.S. 784, 795] relied upon Twining v. New Jersey, 211 U.S. 78 (1908), which held that the right against compulsory self-incrimination was not an element of Fourteenth Amendment due process. Betts was overruled by Gideon v. Wainwright, 372 U.S. 335 (1963); Twining, by Malloy v. Hogan, 378 U.S. 1 (1964). Our recent cases have thoroughly rejected the Palko notion that basic constitutional rights can be denied by the States as long as the totality of the circumstances does not disclose a denial of "fundamental fairness." Once it is decided that a particular Bill of Rights guarantee is "fundamental to the American scheme of justice," Duncan v. Louisiana, supra, at 149, the same constitutional standards apply against both the State and Federal Governments. Palko's roots had thus been cut away years ago. We today only recognize the inevitable. . . .

As this Court put it in Green v. United States, 355 U.S. 184, 187 -188 (1957), "[t]he underlying [395 U.S. 784, 796] idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." This underlying notion has from the very beginning been part of our constitutional tradition. Like the right to trial by jury, it is clearly "fundamental to the American scheme of justice." The validity of petitioner's larceny conviction must be judged, not by the watered-down standard enunciated in Palko, but under this Court's interpretations of the Fifth Amendment double jeopardy provision.




It doesn't help your argument to spout that Scalia was applying the First Amendment to a STATE infringement of LIBERTY (freedom of speech) when you don't understand that the purpose was to ensure that the same constitutional standards apply against both the State and Federal Governments. Due to the Court's mandated standardization, the watered-down protections against state infringements upon liberty no longer exist.

And now we're back to square one--and the reason for the incorporation is relevant. Freedom of Speech is a LIBERTY interest protected against arbitrary state infringements in violation of due process of law--the law of the land--and you can find the standardized law of the land in First Amendment jurisprudence. Freedom of speech, like the right to privacy, is a liberty interest protected against governmental infringement unless the substantive rule of law infringing the liberty interest is narrowly tailored to serve a compelling government interest.

I'm done responding to your prolific, circular, repetitive, evasive, nonsensical arguments. You make up things that you want to respond to rather than respond to what was actually said. Just like your idol Scalia, it's easier to fabricate facts rather than be bothered by the truth.
0 Replies
 
Debra Law
 
  1  
Reply Thu 20 Oct, 2005 07:32 pm
Substantive Due Process
Substantive Due Process


The Due Process Clause was intended to prevent the government from abusing delegated powers or employing it as an instrument of oppression. "Due Process of Law" embraces both a procedural component and a substantive component.

The touchstone of due process of law is protection of the individual against ARBITRARY action by the government whether the fault lies (1) in a denial of fundamental procedural fairness, or (2) in the exercise of power without any reasonable justification in the service of a legitimate governmental objective.

In other words, due process of law protects individuals from both arbitrary procedures affecting individual life, liberty, and property, and arbitrary legislative (statutes) and executive actions affecting individual life, liberty, and property.

Identifying a liberty interest as a fundamental right, (e.g., freedom of speech, right to privacy, right to marry, etc.) does not mean the liberty interest is secured against deprivation--it means only that it is secured against ARBITRARY deprivation. The Court has devised standardized tests that evaluate the arbitrariness of the government deprivation or infringement with respect to the individual interest affected:

When a substantive rule of law (a statute) infringes upon a fundamental right, then the government must have a compelling interest and the means used must be necessary and narrowly tailored to serve that compelling interest.

When a substantive rule of law (a statute) infringes upon liberty interests that are not deemed fundamental, then the government must have a legitimate interest and the means used must be rationally related (reasonable) to serve that legitimate interest.

When a government actor engages in conduct that affects individual interests, the Courts have ruled that only the most egregious official conduct (at the conscience-shocking level) can be said to be "arbitrary in the constitutional sense."

If the protection of the individual against ARBITRARY action by the government is covered by a specific constitutional provision (e.g., freedom of speech, unreasonable search or seizure, cruel and unusual punishment), the claim must be analyzed under the standard appropriate to that specific provision.


See COUNTY OF SACRAMENTO ET AL . v. LEWIS, 523 U.S. 833 (1998) for an extensive review of substantive due process:

http://laws.findlaw.com/us/523/833.html
0 Replies
 
 

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