Activist Judges

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.

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.

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, §1. . . . 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.

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.

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.

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.

JM is wrong.

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.

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.

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?

merely BEGS THE QUESTION

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.

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.

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.

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.

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.

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.