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A Jurisprudence of Original Intent?

 
 
Reply Tue 15 Nov, 2005 09:07 am
To start off this topic, let me repeat what I've said in another post:
    I happen to believe in the "living constitution." Furthermore, I am convinced that most "originalists" believe in it too -- they just don't like to admit it. For instance, I doubt that many "originalists" would think that the Eighth Amendment, which prohibits cruel and unusual punishments, would permit a state to execute "sodomites," even though some of the states that ratified the Bill of Rights had such statutes on their books at the time (South Carolina maintained its law until 1873). And no doubt most people -- even, I dare say, most originalists -- would hesitate before approving the whipping of convicted criminals, even though that too was permissible in some of the states at the time of the adoption of the Eighth Amendment. Our views regarding these constitutional concepts mature over time, and must accomodate societal changes. Remember, even Antonin Scalia thinks that the "freedom of the press" mentioned in the First Amendment covers television and radio.

So is a jurisprudence of "original intent" even possible? If it is, what is it?
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boomerang
 
  1  
Reply Tue 15 Nov, 2005 09:55 am
I'm not sure I even completely understand your question but it sounds very interesting so I'm just going to listen and learn....
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joefromchicago
 
  1  
Reply Tue 15 Nov, 2005 10:23 am
This website should provide a useful introduction to the theory of "originalism."
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Thomas
 
  1  
Reply Tue 15 Nov, 2005 11:36 am
Joe --

even though I find it outrageously unfair of you to quote Posner to defeat a Posner fan, I agree with the part you italicised, so here is the political philosophy that leads me to lean strongly on the originalist side. The bulk of it consists of two arguments.

Firstly, a point about legitimacy. The constitution is law, and the citizens of the United States ought to be conscience-bound to obey it, because a democratically elected Congress enacted it. What got enacted into law at the time was the original understanding of the bill enacted, so this is the understanding that ought to bind the citizens litigating, and the judges deciding cases. Every later interpretation lacks this legitimacy to the extent it departs from that original meaning. It does not matter, at least not to the legitimacy argument, what other virtues the reinterpretations of modern judges may have.

The second important argument for originalism is grounded in the same reason I am a (small-d) democrat: I abhor dense concentrations of power among groups unaccountable to the people. They frustrate the whole concept of self-governance, which I hold dear. To plagiarize Thomas Jefferson, if your (and Posner's) philosophy of interpretation was enacted, that would in practice allow the US Supreme Court to interpret into the US constitution whatever good things it finds appropriate. And since the court would be the supreme judge of good and evil, you would also allow it to interpret into the US constitution whatever evil things it finds appropriate.

Joe, you may feel comfortable vesting such great discretionary power in such a small group of unaccountable people. I do not. If we have to give a small group of unaccountable people that much power, I at least want to chain them to some reasonably narrow rules. By the way I feel the same way about the Federal Reserve Bank, another extremely powerful institution led by a board of seven almost unaccountable people. I want to confine them to narrow rules too, which is why I like things like the gold standard, or a monetarist policy of growing the money supply at a constant rate, or the kind of inflation targeting Bernanke favors. Whatever limits the discretion of the Federal Reserve Bank best. I want the same kind of constraint for the Supreme Court, and originalism is the only method I have seen proposed for the job. But if you can offer a better constraint to limit judicial discretion, I'm all ears.
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Thomas
 
  1  
Reply Tue 15 Nov, 2005 12:22 pm
Oops -- for some reason I thought Joe's initial post was the same as the one he posted on BBB's thread. Hence my references to Posner. Let me just quote that post as a whole here:

joefromchicago wrote:
For those interested in the issue of originalism, I've started a new thread in the Legal Forum: A Jurisprudence of Original Intent?.

Richard Posner wrote:
"Many provisions of the Constitution, however, are drafted in general terms. This creates flexibility in the face of unforseen changes, but it also creates the possibility of alternative intepretations, and this possibility is an embarrassment for a theory of judicial legitimacy that denies that judges have any right to exercise discretion. A choice among semantically plausible interpretations of a text, in circumstances remote from those contemplated from its drafters, requires the exercise of discretion and the weighing of consequences. Reading is not a form of deduction; understanding requres a consideration of consequences. If I say, "I'll eat my hat, "one reason why my listeners will "decode" the meaning of this statement in nonliteral fashion is that I couldn't eat a hat if I tried. The broader principle which applies to the Constitution as much as to a spoken utterance, is that if one possible interpretation of an ambiguous statement would entail absurd or terrible results, that is a good reason to reject it.

Even the decision to read the Constitution narrowly, and thereby to "restrain" judicial interpretation, is not a decision that can be read directly from the text. The Constitution does not say, "Read me broadly, or, "Read me narrowly" THE DECISION TO DO ONE OR THE OTHER MUST BE MADE AS A MATTER OF POLITICAL THEORY AND WILL DEPEND ON SUCH THINGS AS ONE'S VIEW OF THE SPRINGS OF JUDICIAL LEGITIMACY AND THE RELATIVE COMPETENCE OF COURTS AND LEGISLATURES IN DEALING WITH PARTICULAR TYPES OF ISSUE>"

I agree.

Source
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Setanta
 
  1  
Reply Tue 15 Nov, 2005 12:36 pm
I for one feel that the abolition of the public stocks, the cat-o-nine-tails, the iron maiden, etc., etc., and the salutory minatory effects of those societal institutions is at the very heart of the moral degredation and decay which is eating out polity to an empty husk from within . . . 'scuse me, the nurse's aide is here, it's time to take my meds . . .
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joefromchicago
 
  1  
Reply Tue 15 Nov, 2005 12:54 pm
Thomas wrote:
Firstly, a point about legitimacy. The constitution is law, and the citizens of the United States ought to be conscience-bound to obey it, because a democratically elected Congress enacted it. What got enacted into law at the time was the original understanding of the bill enacted, so this is the understanding that ought to bind the citizens litigating, and the judges deciding cases. Every later interpretation lacks this legitimacy to the extent it departs from that original meaning. It does not matter, at least not to the legitimacy argument, what other virtues the reinterpretations of modern judges may have.

Then what is the "original meaning" of the word "press" in the First Amendment? That amendment says: "Congress shall make no law ... abridging the freedom ... of the press." In 1791, I'm confident that "press" meant something that was printed on a printing press -- e.g. books and newspapers -- and I'm sure that's what the framers of the Bill of Rights had in mind. Or, to put it another way, that was their "original intent."

So what would you do, Thomas, if you were a supreme court justice and you were confronted with a case which tested the constitutionality of a law passed by congress prohibiting television networks from broadcasting anything negative about the government? According to an original intent analysis, wouldn't you have to side with the government because the framers of the First Amendment did not "intend" to include television under the term "press?" Or would you take a more expansive approach and define "press" to mean "printed materials and things that are like printed materials," even though the First Amendment says nothing about "freedom of press-like things?"

Thomas wrote:
The second important argument for originalism is grounded in the same reason I am a (small-d) democrat: I abhor dense concentrations of power among groups unaccountable to the people. They frustrate the whole concept of self-governance, which I hold dear. To plagiarize Thomas Jefferson, if your (and Posner's) philosophy of interpretation was enacted, that would in practice allow the US Supreme Court to interpret into the US constitution whatever good things it finds appropriate. And since the court would be the supreme judge of good and evil, you would also allow it to interpret into the US constitution whatever evil things it finds appropriate.

You're setting up a strawman. Those who believe in a "living constitution" always start with the text of the constitution. If the text is clear (e.g. the qualifications for office clauses of Article I), then there is no justification to interpret the text any further. When the constitution, for example, says that senators must be 30 years old, it would be improper for a judge to hold that what the constitution really means is that a senator must have the maturity level of a 30-year-old in 1787. It is only where the constitution is open to interpretation (and, it should be noted, the constitution is designed to be open to interpretation) are judges free to interpret it. The notion that a court can "interpret into the US constitution whatever good things it finds appropriate," then, is a mischaracterization of the "living constitution" school of thought.

Thomas wrote:
Joe, you may feel comfortable vesting such great discretionary power in such a small group of unaccountable people. I do not. If we have to give a small group of unaccountable people that much power, I at least want to chain them to some reasonably narrow rules.

And so do I. The text of the constitution, however, is not the only one of those rules -- it may not even be the most important. Certainly the rule of stare decisis binds judges much more strongly than any judicial adherence to strict textual analysis -- that's what separates a common-law system like the US from a civil law system like Germany.
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Thomas
 
  1  
Reply Tue 15 Nov, 2005 01:08 pm
Re: A Jurisprudence of Original Intent?
joefromchicago wrote:
I doubt that many "originalists" would think that the Eighth Amendment, which prohibits cruel and unusual punishments, would permit a state to execute "sodomites," even though some of the states that ratified the Bill of Rights had such statutes on their books at the time (South Carolina maintained its law until 1873).

I note that while South Carolina maintained its law surprisingly long, it still changed it before, not after, a supreme court (state or federal) found the practice unconstitutional. I see that as a reason to trust the democratic process, and be skeptical about the courts.

joefromchicago wrote:
And no doubt most people -- even, I dare say, most originalists -- would hesitate before approving the whipping of convicted criminals, even though that too was permissible in some of the states at the time of the adoption of the Eighth Amendment.

I agree that Congress and the state legislatures have failed at their job to keep America's constitutions up to date. Nevertheless, updating them remains the responsibility of the legislatures not the courts. I also believe that you are assuming much of your conclusion by using "approval" as a synonym for "finding constitutional". One can believe, as I do, that the US constitution sucks in important respects, that it does not deserve the aureole that America's civil religion surrounds it with, and that it is in desparate need of amendment. For people like me, saying "I strongly disapprove of this" is perfectly consistent with saying "I find this constitutional".

joefromchicago wrote:
Our views regarding these constitutional concepts mature over time, and must accomodate societal changes.

Who is "our" in this sentence "the American jurists'", or "the American people's"? That's an important difference in the context of our discussion.

joefromchicago wrote:
Remember, even Antonin Scalia thinks that the "freedom of the press" mentioned in the First Amendment covers television and radio.

... and even Robert Bork thinks that a wiretap is a search under the Fourth Amendment. But it is clear from founding era documents that the First Amendment was meant to protect the communication of ideas, and that the Fourth was meant to protect a realm of privacy within ones home and records. What originalists are saying is that you cannot make up new principles such as proscribing voluntary prayer in government buildings (as recently applied to school prayers) or extending the realm of privacy beyond ones homes and records (as recently applied to abortion)
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Thomas
 
  1  
Reply Tue 15 Nov, 2005 01:22 pm
Sorry Joe, you posted while I was writing.

joefromchicago wrote:
So what would you do, Thomas, if you were a supreme court justice and you were confronted with a case which tested the constitutionality of a law passed by congress prohibiting television networks from broadcasting anything negative about the government?

I would look at founding era documents, for instance at the excellent collection in The Founders' constitution Looking up their sources on the First Amendment, I would discover that it's clearly understood meaning was to protect the communication of ideas. That includes speech, it includes printing, but it also includes other forms of expressive conduct, which I think Scalia discusses in his opinion on the flag burning case.

joefromchicago wrote:
According to an original intent analysis, wouldn't you have to side with the government because the framers of the First Amendment did not "intend" to include television under the term "press?"

How very petty is your strawman.

joefromchicago wrote:
You're setting up a strawman. Those who believe in a "living constitution" always start with the text of the constitution.

They may begin there, but they will not end there. Let's take the example you no doubt expected me to come up with. If you look up "commerce" in a founding era dictionary, or read Madison's notes of the ratification debate, you will find nothing in the founders' understanding of the word "commerce" that any reasonable reader would find consistent with Ashcroft v. Raich. No interpretation of the original understanding, even if suitably abstract, would find that a guy who grows his own marijuana in his own house fits in under "commerce among the several states". This is a case where the text is clear, and the court applied salami tactics to give it the meaning of a clause that was proposed at the constitutional convention, and explicitly voted down. ("Congress can do pretty much all it wants to" -- I can find the exact wording if you want to.) Clarence Thomas stated the obvious in his dissent: "Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything-and the Federal Government is no longer one of limited and enumerated powers." I find it utterly alarming that nobody on the Supreme Court joined Thomas's dissent. And I am troubled how frequently Thomas is chided as an "extremist" when he draws conclusions as straightforward as this one.

joefromchicago wrote:
Certainly the rule of stare decisis binds judges much more strongly than any judicial adherence to strict textual analysis -- that's what separates a common-law system like the US from a civil law system like Germany.

But written constitutions have always been creations of Roman Law, not Common Law. If America had wanted to stick with its English common law tradition, why have a written constitution in the first place?
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Thomas
 
  1  
Reply Tue 15 Nov, 2005 02:15 pm
Re: A Jurisprudence of Original Intent?
Just noticing I forgot to answer the last question in your initial post.

joefromchicago wrote:
So is a jurisprudence of "original intent" even possible? If it is, what is it?

I agree with your pointing out that the distinction between "originalism" and the "living constitution" is a matter of degree -- even if it's quite a lot of degree sometimes. I also agree when you suggest that there is no rigorous way of defining "originalism". There always is an element of "I know it when I see it" in labeling someone an originalist (or not). But that said, on this "I know it when I see it basis", I assure you that every judge on Germany's Bundesverfassungsgericht (Federal Constitutional Court) would count as an "originalist" if he was sitting on the United States Supreme Court. And while I don't always agree with them either, they do find it possible to decide cases competently. (And our constitution does not explicitly talk about TV and radio either.)
0 Replies
 
joefromchicago
 
  1  
Reply Tue 15 Nov, 2005 02:47 pm
Re: A Jurisprudence of Original Intent?
Thomas wrote:
I note that while South Carolina maintained its law surprisingly long, it still changed it before, not after, a supreme court (state or federal) found the practice unconstitutional. I see that as a reason to trust the democratic process, and be skeptical about the courts.

And you feel the same way laws regarding racial segregation, interracial marriage, and prohibitions on the sale of contraceptives?

Thomas wrote:
I agree that Congress and the state legislatures have failed at their job to keep America's constitutions up to date. Nevertheless, updating them remains the responsibility of the legislatures not the courts. I also believe that you are assuming much of your conclusion by using "approval" as a synonym for "finding constitutional". One can believe, as I do, that the US constitution sucks in important respects, that it does not deserve the aureole that America's civil religion surrounds it with, and that it is in desparate need of amendment. For people like me, saying "I strongly disapprove of this" is perfectly consistent with saying "I find this constitutional".

In a discussion regarding constitutional principles, you can be assured that when I say "approve" I mean it as a shorthand way of saying "regard as constitutional."

Thomas wrote:
Who is "our" in this sentence "the American jurists'", or "the American people's"? That's an important difference in the context of our discussion.

I presume that the former is a subset of the latter.

Thomas wrote:
... and even Robert Bork thinks that a wiretap is a search under the Fourth Amendment. But it is clear from founding era documents that the First Amendment was meant to protect the communication of ideas, and that the Fourth was meant to protect a realm of privacy within ones home and records.

That may be what it meant, but that's not what it says. The framers of the First Amendment were quite capable of drafting an amendment that protected "the communication of ideas" rather than simply the freedom of the press. That you depart from the plain text of the amendment to determine what it really means shows that originalism differs from a jurisprudence of a "living constitution" only as a matter of degree, not as a matter of kind.

Thomas wrote:
What originalists are saying is that you cannot make up new principles such as proscribing voluntary prayer in government buildings (as recently applied to school prayers) or extending the realm of privacy beyond ones homes and records (as recently applied to abortion)

Or proscribing whipping criminals, I suppose.

Thomas wrote:
I would look at founding era documents, for instance at the excellent collection in The Founders' constitution Looking up their sources on the First Amendment, I would discover that it's clearly understood meaning was to protect the communication of ideas. That includes speech, it includes printing, but it also includes other forms of expressive conduct, which I think Scalia discusses in his opinion on the flag burning case.

Who enacted those documents into law? Who stated authoritatively that they were to be accorded canonical status alongside the text of the amendment? Whose intent represents the intent of the behind the word "press?" You rely on these records as evidence of "intent," yet, because the authors weren't necessarily interested in creating a record of their intent when they drafted those documents, they are actually less reliable as indicators of intent than the words used in the amendment themselves. The text, therefore, should rule rather than the stray musings of its authors. Or, as a noted jurist once said: "The law is what the law says, and we should content ourselves with reading it rather than psychoanalyzing those who enacted it."

Thomas wrote:
How very petty is your strawman.

I merely asked a question. I did not mischaracterize your position, I invited you to define it.

Thomas wrote:
They may begin there, but they will not end there.

The same, of course, can be said of any originalist.

Thomas wrote:
Let's take the example you no doubt expected me to come up with. If you look up "commerce" in a founding era dictionary, or read Madison's notes of the ratification debate, you will find nothing in the founders' understanding of the word "commerce" that any reasonable reader would find consistent with Ashcroft v. Raich. No interpretation of the original understanding, even if suitably abstract, would find that a guy who grows his own marijuana in his own house fits in under "commerce among the several states". This is a case where the text is clear, and the court applied salami tactics to give it the meaning of a clause that was proposed at the constitutional convention, and explicitly voted down. ("Congress can do pretty much all it wants to" -- I can find the exact wording if you want to.) Clarence Thomas stated the obvious in his dissent: "Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything-and the Federal Government is no longer one of limited and enumerated powers." I find it utterly alarming that nobody on the Supreme Court joined Thomas's dissent. And I am troubled how frequently Thomas is chided as an "extremist" when he draws conclusions as straightforward as this one.

If the framers wanted to limit the term "commerce" as narrowly as you suggest, then they should have done a better job of drafting the commerce clause. That you want to interpret it more narrowly than it is written is an indication that you want the justices to rewrite the constitution -- exactly the sin you accuse them of committing now.

Thomas wrote:
But written constitutions have always been creations of Roman Law, not Common Law. If America had wanted to stick with its English common law tradition, why have a written constitution in the first place?

The American constitution was written to be interpreted within a common law system of jurisprudence. Just take a look at the Seventh Amendment.
0 Replies
 
joefromchicago
 
  1  
Reply Tue 15 Nov, 2005 02:57 pm
Re: A Jurisprudence of Original Intent?
Thomas wrote:
I agree with your pointing out that the distinction between "originalism" and the "living constitution" is a matter of degree -- even if it's quite a lot of degree sometimes. I also agree when you suggest that there is no rigorous way of defining "originalism". There always is an element of "I know it when I see it" in labeling someone an originalist (or not). But that said, on this "I know it when I see it basis", I assure you that every judge on Germany's Bundesverfassungsgericht (Federal Constitutional Court) would count as an "originalist" if he was sitting on the United States Supreme Court.

I'm not surprised that German jurists are "originalists." After all, they aren't judges in a common law system.

Thomas wrote:
And while I don't always agree with them either, they do find it possible to decide cases competently. (And our constitution does not explicitly talk about TV and radio either.)

No, it does mention radio (Die Pressefreiheit und die Freiheit der Berichterstattung durch Rundfunk und Film werden gewährleistet), as well as protecting the right of citizens to inform themselves from "generally accessible sources" (allgemein zugänglichen Quellen), which would cover television.

Compare Article 5 of the Grundgesetz with the First Amendment, and we can see that the drafters of the former did a much better job of anticipating new technologies than the latter. There is no equivalent to the "generally accessible sources" in the First Amendment.
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roger
 
  1  
Reply Tue 15 Nov, 2005 02:57 pm
Bookmarking too, boomerang. I have never lost anything by following a Thomas/joefromchicago discussion.
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Debra Law
 
  1  
Reply Tue 15 Nov, 2005 03:04 pm
Original Intent: Textualism

The major rules of contruing the text of the Constitution are as follows:

1. The enumeration of some individual rights in the constitution that are secured against goverment oppression shall not be construed to deny or disparage all other unenumerated rights retained by the people.

2. We examine the words of the text itself and give the words their ordinary meaning.

Examples: The words "cruel" and "unusual" mean the same thing today that those words meant in the 18th Century. The word "cruel" means: "Inhuman; barbarous (uncivilized, untutored, ignorant); savage; causing pain, grief or distress; exerted in tormenting, vexing or afflicting." The word "unusual" means: "Not usual; not common; rare."

As a society progresses and matures, punishments that might have been acceptable and common 230 years ago (e.g., the execution of children and/or incompetents) might be construed by the people to be the product of uncivilized ignorance and become uncommon. Inasmuch as the Constitution uses broad language prohibiting cruel and unusual punishments rather than prohibiting specific punishments thought to be cruel or unusual in the 1700's, our forefathers understood that future civilized and more enlightened (less ignorant) generations would undoubtedly add to the list of cruel and unusual punishments that the government is prohibited from inflicting.

The phrase "due process of law" means the same thing today that it meant throughout time which embodies the "law of the land" as the law exists when it is applied (not how the law might have existed 230 years ago) and requires the application of LEGITIMATE laws that provide both substantive fairness and procedural fairness. Inasmuch as the people never delegated power to the government to enact oppressive laws that arbitrarily or unreasonably deny or disparage liberty interests, oppressive laws do not serve legitimate government interests and are constitutionally invalid.

3. What the constitution forbids the government from accomplishing directly, it forbids the government from accomplishing indirectly.

4. If the language of the text is so ambiguous that its meaning cannot be discerned from the text itself, then we may look to the original intent of the drafters and ratifiers to resolve the ambiguity.

5. If one interpretation produces a reasonable result (achieves the purpose of the constitution) and another interpretation produces an absurd result (frustrates the purpose of the constitution), we apply the interpretation that produces a reasonable result.

6. When determining the original intent of the PEOPLE--the framers and ratifiers of the Constitution--we examine the purposes for which they drafted and ratified the Constitution as set forth in the Declaration of Independence and Preamble of the Constitution:

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

The primary purpose of establishing the Constitution was to SECURE the blessings of liberty. Although the establishment of a "police state" might promote the general welfare, our forefathers never intended that individuals should be required to surrender the blessings of liberty for the good of the whole--that's NOT justice. While it may be a legitimate interest to promote the general welfare, it is NEVER a legitimate interest to take away security for the preservation of individual liberty. Therefore, a broad recitation to a government's "legitimate" interest in promoting the general welfare is not sufficient to justify the denial or disparagement of individual liberty interests. As mentioned before on other threads, the government must articulate its specific interest that is ostensibly served by any statute that infringes liberty interests.

In Lawrence v. Texas, a state's generalized interest in preventing or punishing crime (as legitimate or compelling as that interest may be) to promote the general welfare of the people does not justify the enactment of any law that the legislature chooses to pass. The Court looked at the SPECIFIC government interest that was served by the statute at issue that criminalized the private, consensual sexual conduct between persons of the same sex. The Court found that the state does NOT have a legitimate interest in criminalizing the private, consensual conduct of members in a disfavored group based on moral disapproval alone. The majority of the people may not use the power of the government to impose their morals on others.

In Casey, a state's generalized interest in regulating the medical profession for the general welfare of the people (as legitimate or compelling as that interest may be) does not justify the enactment of any law that the legislature chooses to pass. The Court looked a the SPECIFIC government interest embodied in the spousal notification provision. The Court determined that the state does not have a legitimate interest in protecting the father's interest in the fetus at the expense of the woman's liberty interest in her own procreative destiny. The government cannot accomplish indirectly something that it cannot accomplish directly. The government cannot give a husband the power to effectively veto or penalize the wife's decision when the government itself could not veto or penalize the woman's decision.
0 Replies
 
Thomas
 
  1  
Reply Tue 15 Nov, 2005 03:31 pm
Re: A Jurisprudence of Original Intent?
joefromchicago wrote:
And you feel the same way laws regarding racial segregation, interracial marriage, and prohibitions on the sale of contraceptives?

There's no "feel" about it -- the Supreme Court was slightly ahead of some state legislatures in those cases. But even in these cases, I don't think it was very far ahead. If the issues had been settled by debating and voting, that's a benefit I would have been willing to pay with a few years of further delay.

joefromchicago wrote:
That you depart from the plain text of the amendment to determine what it really means shows that originalism differs from a jurisprudence of a "living constitution" only as a matter of degree, not as a matter of kind.

Fair enough -- and I acknowledge as much in my later post.

joefromchicago wrote:
You rely on these records as evidence of "intent," yet, because the authors weren't necessarily interested in creating a record of their intent when they drafted those documents, they are actually less reliable as indicators of intent than the words used in the amendment themselves.

No, I rely on these records as evidence of what the text meant to the people who read them at the time it was passed. You are the one referring to "intent", I am not. I suppose that the words of the constitution conveyed a reasonably clear meaning to the people they were written for. I believe we can discern this meaning through historical research. But I don't suppose I can know what the intent each of several hundred congressmen had in mind as he voted for the bill that was to become the constitution.

joefromchicago wrote:
I'm not surprised that German jurists are "originalists." After all, they aren't judges in a common law system.

I hate to admit this -- but I just tried to refute your argument by offering the 1789 French Declaration of human rights as a counterexample to it. It was written to be interpreted by Roman Law jurists, but is comparable with your Bill of Rights in every other way. In particular, it was co-written by the Marquis de Lafayette, a hero of America's war of independence, and Thomas Jefferson, an American founding father. I was hoping to show that it didn't lend itself to "originalism" any more than the American version; but it does. It is much better, much more abstractly written. Damn. (One wonders why the French Revolution didn't work out.)

joefromchicago wrote:
No, it does mention radio (Die Pressefreiheit und die Freiheit der Berichterstattung durch Rundfunk und Film werden gewährleistet), as well as protecting the right of citizens to inform themselves from "generally accessible sources" (allgemein zugänglichen Quellen), which would cover television.

You are right, I am wrong -- sorry.

Quote:
Compare Article 5 of the Grundgesetz with the First Amendment, and we can see that the drafters of the former did a much better job of anticipating new technologies than the latter. There is no equivalent to the "generally accessible sources" in the First Amendment.

Hmmm -- leaving the question of originalism aside for a moment, why don't the United States pass a new constitution, one that does a better job at being general? I hear you do that quite a lot on a state level, and that some of your states have run through three constitutions since they were founded. Why not do the same on the federal level?
0 Replies
 
Thomas
 
  1  
Reply Tue 15 Nov, 2005 03:47 pm
Debra_Law wrote:
1. The enumeration of some individual rights in the constitution that are secured against goverment oppression shall not be construed to deny or disparage all other unenumerated rights retained by the people.

Of course. But the converse is not true -- not everything that the constitution left unenumerated is an unenumerated right retained by the people. As a practical matter, then, how would you find out which unenumerated interests are rights protected under the Ninth amendment, and which are not?

Debra_Law wrote:
As a society progresses and matures, punishments that might have been acceptable and common 230 years ago (e.g., the execution of children and/or incompetents) might be construed by the people to be the product of uncivilized ignorance and become uncommon.

I know that by saying this, I am coming dangerously close to triggering Godwin's law. But I can't help being a German with a sense of history, so it never fails to amaze me how naively Americans take it for granted that their society progresses and matures. How does your principle apply when society regresses and falls apart, and a large number of people find it's okay again to execute all kinds of undesireables? If this happened in America, do you think a court would be justified in arguing that 'maturity', properly interpreted, now means the state can mass-deport dissidents to Sibiria? (Guantanamo Bay I guess.)

Debra_Law wrote:
The phrase "due process of law" means the same thing today that it meant throughout time which embodies the "law of the land" as the law exists when it is applied (not how the law might have existed 230 years ago) and requires the application of LEGITIMATE laws that provide both substantive fairness and procedural fairness.

Can you show me a founding era (or earlier) example where a court struck down a law on substantive due process grounds?

Debra_Law wrote:
3. What the constitution forbids the government from accomplishing directly, it forbids the government from accomplishing indirectly.

In your jurisprudence, how does that apply to the Commerce Clause as an instrument of accomplishing all kinds of things indirectly that the federal government doesn't have a delegated power to do directly?
0 Replies
 
Debra Law
 
  1  
Reply Tue 15 Nov, 2005 05:04 pm
Thomas wrote:
Firstly, a point about legitimacy. The constitution is law, and the citizens of the United States ought to be conscience-bound to obey it, because a democratically elected Congress enacted it.


Congress did not enact the Constitution nor did Congress enact the Amendments.

It was the delegates of constitutional convention who drafted the constitution and proposed it--it was the people in their respective states who ratified the constitution. The delegates of the constitutional convention never intended that their musings on the meaning of the constitution would be controlling. They were determined that the meaning of the Constitution would be ascertained by the judicial branch of government through the adjudication of cases and controversies arising under the Constitution.

It was the members of the First Congress who drafted and proposed the Bill of Rights (Amendments 1 through 10)--it was the people in their respective states who ratified the amendments.

The people retain the power to alter or amend the Constitution through a democratic process set forth in Article V:

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

The difficulting of invoking the amendment process to acquire the approval of three fourths of the states requires reflection and debate over our values as a nation--the amendment process was never intended to be invoked for transitory or trivial reasons. But, the fact remains--if the majority of the people in three-fourths of the states disagree with Supreme Court interpretations of the supreme law of the land--it is within the power of the people to overrule the Supreme Court through the amendment process.


Quote:
What got enacted into law at the time was the original understanding of the bill enacted, so this is the understanding that ought to bind the citizens litigating, and the judges deciding cases. Every later interpretation lacks this legitimacy to the extent it departs from that original meaning. It does not matter, at least not to the legitimacy argument, what other virtues the reinterpretations of modern judges may have.


What was RATIFIED (not enacted) was the text of the Constitution--not the "original understanding" of the meaning of the text of the Constitution. The job of determining the meaning of the Constitution as applied to actual cases and controversies was delegated to the judicial branch of government.


Quote:
The second important argument for originalism is grounded in the same reason I am a (small-d) democrat: I abhor dense concentrations of power among groups unaccountable to the people. They frustrate the whole concept of self-governance, which I hold dear. To plagiarize Thomas Jefferson, if your (and Posner's) philosophy of interpretation was enacted, that would in practice allow the US Supreme Court to interpret into the US constitution whatever good things it finds appropriate. And since the court would be the supreme judge of good and evil, you would also allow it to interpret into the US constitution whatever evil things it finds appropriate.


Our country was never intended to operate as a pure democracy. We are a nation of laws, not of men. The mob doesn't rule. Our founders placed constitutional limitations on the democratically-elected branches of government in order to secure individual rights from the oppressions of the many. We placed absolute authority in the Supreme Court to interpret the Constitution and determine its meaning as applied to cases and controversies arising under the Constitution while retaining the power to amend the Constitution if that's what we desire for our happiness.

If the people in three-fourths of the states disagree with Supreme Court interpretations of our Constitution, they may overrule Supreme Court decisions through the amendment process. Nevertheless, and despite the outcry by some, the people in the states have never rallied to pass a constitutional amendment that provides that life begins at conception and is entitled to protection or to otherwise effectively overrule Roe v. Wade. Although some might complain, we largely respect and honor the role of the Supreme Court to act as the final authority on the meaning of the Constitution. Our constitutional system works--and I believe--with each passing century--that we are making some progress as a nation that opposes oppression, rids itself of oppression (when we finally recognize it no matter what form it takes or how long it takes), and cherishes liberty and justice for all.
0 Replies
 
joefromchicago
 
  1  
Reply Tue 15 Nov, 2005 11:53 pm
Re: A Jurisprudence of Original Intent?
Thomas wrote:
There's no "feel" about it -- the Supreme Court was slightly ahead of some state legislatures in those cases. But even in these cases, I don't think it was very far ahead. If the issues had been settled by debating and voting, that's a benefit I would have been willing to pay with a few years of further delay.

Given that you are neither black nor a woman, I can understand.

Thomas wrote:
No, I rely on these records as evidence of what the text meant to the people who read them at the time it was passed. You are the one referring to "intent", I am not.

If originalism doesn't refer to "original intent," then it is meaningless. I can't discern the difference between what the framers "meant" and what they "intended."

Thomas wrote:
I suppose that the words of the constitution conveyed a reasonably clear meaning to the people they were written for. I believe we can discern this meaning through historical research. But I don't suppose I can know what the intent each of several hundred congressmen had in mind as he voted for the bill that was to become the constitution.

I'm not sure why "meaning" is any less elusive than "intent." A review of contemporaneous texts, for instance, would leave us just as bewildered about the original meaning of the Second Amendment as it would leave us about the original intent behind the Second Amendment.

Thomas wrote:
I hate to admit this -- but I just tried to refute your argument by offering the 1789 French Declaration of human rights as a counterexample to it. It was written to be interpreted by Roman Law jurists, but is comparable with your Bill of Rights in every other way. In particular, it was co-written by the Marquis de Lafayette, a hero of America's war of independence, and Thomas Jefferson, an American founding father. I was hoping to show that it didn't lend itself to "originalism" any more than the American version; but it does. It is much better, much more abstractly written. Damn. (One wonders why the French Revolution didn't work out.)

Better luck next time.

Thomas wrote:
Hmmm -- leaving the question of originalism aside for a moment, why don't the United States pass a new constitution, one that does a better job at being general? I hear you do that quite a lot on a state level, and that some of your states have run through three constitutions since they were founded. Why not do the same on the federal level?

Because we could never achieve the same kind of national consensus on basic principles that we managed in 1787. If we drafted a constitution today, it would be 500 pages long and would be more complicated than the tax code.
0 Replies
 
Thomas
 
  1  
Reply Wed 16 Nov, 2005 02:55 pm
Re: A Jurisprudence of Original Intent?
joefromchicago wrote:
Given that you are neither black nor a woman, I can understand.

Thanks for your understanding. Given that you are a jurist, it only seems plausible that you would rather give judges their moment of brilliance rather than let public discussion and voting run its cause. I understand, too. Razz

joefromchicago wrote:
Thomas wrote:
No, I rely on these records as evidence of what the text meant to the people who read them at the time it was passed. You are the one referring to "intent", I am not.

If originalism doesn't refer to "original intent," then it is meaningless. I can't discern the difference between what the framers "meant" and what they "intended."

I am not sure I understand: Did the Scalia snippet you quoted to me in your earlier post advocate a view you think meaningless? (I know you may not agree with it, but do you find it meaningless?)

joefromchicago wrote:
I'm not sure why "meaning" is any less elusive than "intent." A review of contemporaneous texts, for instance, would leave us just as bewildered about the original meaning of the Second Amendment as it would leave us about the original intent behind the Second Amendment.

I have not examined this question, since I am not really interested in the lawmakers' intent. As I said, legislators frequently intend different things when they cast the same vote on the same bill; and even if they intended the same, laws frequently have unintended consequences. That doesn't change the meaning of the words.

Now let me back up, if I may, on this concept of society progressing and maturing. As I mentioned in an earlier answer to Debra, I have two fundamental problems with any jurisprudence based on that assumptions. Firstly, as virtually every European who knows European history will tell you, societies don't always progress and mature. Quite frequently they regress and decay. Thus, the assumption both Debra and you implied, that American society continuously improves, strikes me as extremely naive. It is only by the grace of Murphy that America has never quite gone the way of Yugoslavia, Chechenya, or Northern Ireland yet. If it does, how does your jurisprudence apply to that scenario?

My second problem is this: Even if I conceded that society's standards of decency are improving, and that the Court's opinions could track them, I would still be left with a practical problem: Society already has a method for reflecting these standards in their laws: They can always discuss their old laws, decide that they no longer reflect them, and vote for legislators who change them. Which other methods does a court have for tracking society's evolving standards of decency, and what makes you think these methods generally work better than public debating and voting? I know you can cite cases where this has happened to be the case, but what makes you think the Supreme Court's tracking methods for social mores generally work better than popular vote?

EDIT: I just noticed I have one more backup question
joefromchicago wrote:
Thomas wrote:
They may begin there, but they will not end there.

The same, of course, can be said of any originalist.

A lot of things could be said about a lot of subjects, but that doesn't necessarily mean we have reason to think them true. Could you point me to a few Supreme Court cases where, in your judgment, the 'originalist' opinion starts with the text of the constitution but ends up subverting its properly understood meaning, and the 'living constitution' style opinion doesn't?
0 Replies
 
Debra Law
 
  1  
Reply Wed 16 Nov, 2005 03:30 pm
Thomas wrote:
Debra_Law wrote:
1. The enumeration of some individual rights in the constitution that are secured against goverment oppression shall not be construed to deny or disparage all other unenumerated rights retained by the people.


Of course. But the converse is not true -- not everything that the constitution left unenumerated is an unenumerated right retained by the people. As a practical matter, then, how would you find out which unenumerated interests are rights protected under the Ninth amendment, and which are not?


You're wrong, Thomas. The Ninth amendment is not a source of substantive protection of unenumerated rights; it is a rule of constitutional construction. Accordingly, when you claim that "abortion" (more specifically, a woman's liberty interest in determining for herself whether to continue or terminate a pregnancy and to control her own procreative destiny without unreasonable government interference) is not mentioned in the Constitution and is not protected, you are engaging in the very evil act of constitutional construction that the founders sought to prevent by the Ninth Amendment.

Justice Goldberg wrote:
In presenting the proposed Amendment, Madison said:

"It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the [381 U.S. 479, 490] last clause of the fourth resolution [the Ninth Amendment]." I Annals of Congress 439 (Gales and Seaton ed. 1834)

. . . To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment, which specifically states that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."


Source: GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965)(Goldberg, J., concurring).

You're operating under the false premise that there are some rights or liberty interests that are not protected simply because they are not mentioned in the Constitution or do not rise to the level of a "fundamental" right. Certainly, wearing a cap backwards at a county fair is not a right mentioned in the Constitution nor has any court ruled that it is a "fundamental" right, but the Constitution nevertheless protects that liberty interest from arbitrary government infringement.

Some people fail to understand that the Constitution secures ALL liberty, great and small, against unreasonable, arbitrary, or oppressive government denials or deprivations--which is the very essense of substantive due process. Although the Court will review infringements of rights deemed to be fundamental with a higher level of scrutiny, even NON-fundamental rights are protected against arbitrary, unreasonable, or oppressive infringements. At a minimum, ALL government enactments or conduct (the means used) affecting life, liberty, or property must be rationally related (reasonable) to serve a LEGITIMATE government interest. When statutes are challenged on their face or as applied on due process grounds, the courts examine the substance of the law to determine whether the ends are LEGITIMATE (within the power of the government) and whether the means chosen (e.g., a deprivation of liberty in whatever form it takes) are justified.



Debra_Law wrote:
As a society progresses and matures, punishments that might have been acceptable and common 230 years ago (e.g., the execution of children and/or incompetents) might be construed by the people to be the product of uncivilized ignorance and become uncommon.


Thomas wrote:
I know that by saying this, I am coming dangerously close to triggering Godwin's law. But I can't help being a German with a sense of history, so it never fails to amaze me how naively Americans take it for granted that their society progresses and matures. How does your principle apply when society regresses and falls apart, and a large number of people find it's okay again to execute all kinds of undesireables? If this happened in America, do you think a court would be justified in arguing that 'maturity', properly interpreted, now means the state can mass-deport dissidents to Sibiria? (Guantanamo Bay I guess.)


Here's what Scalia says about executing undesireables:

Justice Scalia wrote:
I want to make clear at the outset of my remarks that what I will have to say or, for that matter, what I have heard at this very interesting conference has nothing to do with how I vote in capital cases that come before the Supreme Court. That statement would not be true if I subscribed to the conventional fallacy that the Constitution is a living document; that is, a text that means from age to age whatever the society or perhaps the Court thinks it ought to mean. In recent years, that philosophy has been particularly well enshrined in our Eighth Amendment jurisprudence; that is, our case law dealing with the prohibition dealing with cruel and unusual punishments. Several of our opinions have stated that what falls within this prohibition is not static but changes from generation to generation to comport with “the evolving standards of decency that mark the progress of a maturing society.”

. . . If I subscribe to the proposition that I am authorized – indeed, I suppose, compelled – to intuit and impose our maturing society’s evolving standards of decency, this conference would be for me a sort of continuing judicial education. As it is, however, the Constitution that I interpret and apply is not living, but dead; or as I prefer to call it, enduring. (Laughter.) It means today not what current society, much less the Court, thinks it ought to mean, but what it meant when it was adopted. For me, therefore, the constitutionality of the death penalty is not a difficult, soul-wrenching question. It was clearly permitted when the Eighth Amendment was adopted – not merely for murder, by the way, but for all felonies, including, for example, horse thieving, as anyone can verify by watching a western movie. And so it is clearly permitted today as far as the Constitution is concerned.


Source: A Call for Reckoning: Religion & the Death Penalty.

According to Scalia, a state government may choose to define any undesireable conduct (picking pockets and stealing chickens) as a criminal felony and impose the penalty of death without violating the "original meaning" of the Eighth Amendment. Therefore, your fear that society will regress and start executing all kinds of undesireables is more likely to be realized under Scalia's interpretation of the Eighth Amendment as the floor constitutional protection against cruel and unusal punishments as opposed to justices who apply modern day standards as the floor constitutional protection against cruel and unsual punishments.

The level of punishment applied for the violation of criminal law is tied to the offender's culpability. The Court has determined that the government does NOT have a LEGITIMATE interest in treating less culpable offenders (children and incompetents) as harshly as other more culpable offenders. Once the floor constitutional protection has been established against cruel and unusual punishments, our adherence to precedent forbids the government from dropping below the floor and operating in the basement.



Debra_Law wrote:
The phrase "due process of law" means the same thing today that it meant throughout time which embodies the "law of the land" as the law exists when it is applied (not how the law might have existed 230 years ago) and requires the application of LEGITIMATE laws that provide both substantive fairness and procedural fairness.


Thomas wrote:
Can you show me a founding era (or earlier) example where a court struck down a law on substantive due process grounds?


In 1798, Justice Chase wrote the following:

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

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

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


CALDER v. BULL, 3 U.S. 386 (1798).
http://laws.findlaw.com/us/3/386.html

The people instituted the government to secure liberty; the people never delegated power to the government to enact arbitrary or oppressive laws. Example of one of our founder's views:

"The Legislative has no right to absolute, arbitrary power over the lives and fortunes of the people. The Legislative cannot justly assume to itself a power to rule by extempore arbitrary decrees…" Samuel Adams, The Rights of the Colonists (1772).

A substantive due process analysis reviews the SUBSTANCE of the challenged government enactment to determine whether it falls within the legitimate powers of government (within a legitimate power delegated by the people to government) and whether the means used are reasonable and just. Our founding society (the "give me liberty or give me death" generation) never tolerated the notion that the government may arbitrarily enact laws that deny or disparage their life, liberty, or property interests.

Justice Souter briefly outlined the history of "due process of law" in his concurring opinion in WASHINGTON et al. v. GLUCKSBERG et al. as follows:

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

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

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

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

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


See also Justice Marshall's opinion in McCulloch v. Maryland, 17 U.S. 316 (1819) wherein Justice Marshall discussed that the MEANS chosen by government to accomplish some END must be appropriate and serve a LEGITIMATE government interest:

Justice Marshall wrote:
We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.


http://laws.findlaw.com/us/17/316.html

From the very beginning, our founders recognized that it was not appropriate for the government to enact statutes that deny or disparage individual life, liberty, or property interests unless the statute served a LEGITIMATE government interest and the means used were plainly adapted (appropriate, reasonable, and just; not arbitrary, unreasonable, or oppressive) to that LEGITIMATE end. That is the very essence of substantive due process.

Another case, HURTADO v. PEOPLE OF STATE OF CALIFORNIA, 110 U.S. 516 (1884), reviews the history of due process of law and also notes that the SUBSTANCE of the law, not just the procedures employed, must be reasonable and just and serve a legitimate government interest:

Quote:
The supreme court of California, in the judgment now under review, followed its own previous decision in Kalloch v. Super. Ct. 56 Cal. 229, in which the question was deliberately adjudged. Its conclusion was there stated as follows: 'This proceeding, as [it] is regulated by the constitution and laws of this state, is not opposed to any of the definitions given of the phrases 'due process of law' and 'the law of the land;' but, on the contrary, it is a proceeding strictly within such definitions, as much so in every respect as is a proceeding by indictment. It may be questioned whether the proceeding by indictment secures to the accused any superior rights and privileges; but certainly a prosecution by information takes from him no immunity or protection to which he is entitled under the law.' And the opinion cites and relies upon a decision of the supreme court of Wisconsin in the case of Rowan v. State, 30 Wis. 129. In that case the court, speaking of the fourteenth amendment, says: 'But its design was not to confine the states to a particular mode of procedure in judicial proceedings, and prohibit them from [110 U.S. 516, 521] prosecuting for felonies by information instead of by indictment, if they chose to abolish the grand jury system. And the words 'due process of law' in the amendment do not mean and have not the effect to limit the powers of state governments to prosecutions for crime by indictment; but these words do mean law in its regular course of administration, according to prescribed forms, and in accordance with the general rules for the protection of individual rights. Administration and remedial proceedings must change, from time to time, with the advancement of legal science and the progress of society; and, if the people of the state find it wise and expedient to abolish the grand jury and prosecute all crimes by information, there is nothing in our state constitution and nothing in the fourteenth amendment to the constitution of the United States which prevents them from doing so.'

On the other hand, it is maintained on behalf of the plaintiff in error that the phrase 'due process of law' is equivalent to 'law of the land,' as found in the twenty-ninth chapter of Magna Charta; that by immemorial usage it has acquired a fixed, definite, and technical meaning; that it refers to and includes, not only the general principles of public liberty and private right, which lie at the foundation of all free government, but the very institutions which, venerable by time and custom, have been tried by experience and found fit and necessary for the preservation of those principles. . . .

. . . The principle and true meaning of the phrase have never been more tersely or accurately stated than by Mr. Justice JOHNSON in Bank of Columbia v. Okely, 4 Wheat. 235-244: 'As to the words from Magna Charta, incorporated into the constitution of Maryland, after volumes spoken and written with a view to their exposition, the good sense of mankind has at last settled down to this: that they were intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private right and distributive justice.' And the conclusion rightly deduced is as stated by Mr. Cooley, (Const. Lim. 356:) 'The principles, then, upon which the process is based, are to determine whether it is 'due process' or not, and not any considerations of mere form. Administrative and remedial process may [110 U.S. 516, 528] be changed from time to time, but only with due regard to the landmarks established for the protection of the citizen.'

. . . But to hold that such a characteristic is essential to due process of law, would be to deny every quality of the law but its age, and to render it incapable of progress or improvement. It would be to stamp upon our jurisprudence the unchangeableness attributed to the laws of the Medes and Persians. . . .

. . . This flexibility and capacity for growth and adaptation is the peculiar boast and excellence of the common law. Sir JAMES MACKINTOSH ascribes this principle of development to Magna Charta itself. To use his own language: 'It was a peculiar advantage that the consequences of its principles were, if we may so speak, only discovered slowly and gradually. It gave out on each occasion only so much of the spirit of liberty and reformation as the circumstances of succeeding generations required, and as their character would safely bear; for almost five centuries it was appealed to as the decisive authority on behalf of the people, though commonly so far only as the necessities of each case demanded.' 1 Hist. Eng. 221.

. . . In this country written constitutions were deemed essential to protect the rights and liberties of the people against the encroachments of power delegated to their governments, and the provisions of Magna Charta were incorporated into bills of rights, They were limitations upon all the powers of government, legislative as well as executive and judicial. It necessarily happened, therefore, that as these broad and general maxims of liberty and justice hald in our system a different place and performed a different function from their position and office in English constitutional history and law, they would receive and justify a corresponding and more comprehensive interpretation. Applied in England only as guards against executive usurpation and tyranny, here they have become bulwarks also against arbitrary legislation; but in that application, as it would be incongruous to measure and restrict them by the ancient customary English law, they must be held to guaranty, not particular forms of procedure, but the very substance of individual rights to life, liberty, and property. . . .


The law of the land is not concerned merely with PROCEDURE. Our procedural forms can change over time. The law of the land--due process of law--guarantees the security of individual life, liberty, and property interests against unreasonable, arbitrary, oppressive government denials and deprivations. If you actually discussed this issue with our founders and suggested that the "original meaning" of the due process clause "means" that the government may deprive individuals of their life, liberty, or property interests so long as the government provides a fair PROCEDURE for doing so--they would scoff at you.




Debra_Law wrote:
3. What the constitution forbids the government from accomplishing directly, it forbids the government from accomplishing indirectly.


Thomas wrote:
In your jurisprudence, how does that apply to the Commerce Clause as an instrument of accomplishing all kinds of things indirectly that the federal government doesn't have a delegated power to do directly?


The Constitution delegates broad powers to the federal government to regulate commerce among the states. If you can give me an example how the federal government is indirectly accomplishing something it was directly forbidden to do via the Commerce Clause or another constitutional provision, I will try to address your question.
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