How have the Courts used this vehicle to incorporate so much of the Bill of Rights and make it pertain to the states? The recent McDonald decision used it, and it was used as validation for Roe.
Ok, let’s assume that gun rights or abortion or sodomy is in fact a liberty that a person possesses. From God, the constitution, or from wherever. Why does that mean that a state can’t outlaw such a thing? It says right there that in order to deprive me of that right it can, in fact do so, but only do so after giving me due process of law.
So, if I have an abortion or possess a gun, the simple text seems to me that as long as the state gives me a fair trial, then they can deny me all of the liberty that they want. What am I missing here?
The states are not bound to respect god or “wherever”. They are, however, bound to uphold the Constitution, and when a state seeks to pass laws that limit the rights guaranteed by the Constitution, that law can be overturned on appeal on Constitutional grounds.
The 14th amendment reference in Roe was weak, one of those “privacy” inferences that the Justices detected with their Spider sense, since there aren’t any actual words to support it. I wouldn’t strain too many brain cells trying to link abortion restrictions to the fourteenth. That requires a level of imagination apparently only resident in the craniums of SCOTUS Justices.
Your last sentence is roughly correct, if I understand it. The government can send you to jail, so long as they follow the rules in doing so.
My next question: How in the hell would the Court get the idea that “due process” entitles them to a judicial overview on justification for the law? Do they just make shit up as they go along?
I really am trying to understand, but how can you read that little snippet of the 14th and get this idea out of it?
To grossly simplify: some rights are so important that they can’t be deprived by any process, no matter how transparent and fair that process is. Remember, the people aren’t limited to only those rights specifically enumerated in the Constitution, as the Ninth Amendment reminds us. So there’s at least a philosophical notion that the government can’t control every aspect of our lives for no good reason, even in the absence of language that specifically bars them.
Yeah, I thought that debate might break out, so I wasn’t sure where to put it. Mods feel free to move.
I don’t disagree with anything you just said. I just don’t get how the due process clause in the 14th amendment could be read to do the things that you said.
And as far as doing things for no good reason, I can’t imagine how a state legislature could garner a majority of each house, have the governor sign off on it, just for giggles. Surely there was some purpose behind every law that is passed.
It seems that the privileges or immunities clauses gives a clear and unambiguous path to do the things you said while the due process clause requires judicial, well I want to call it gymnastics, but there is nothing there to even support calling it gymnastics.
Why not use the straightforward method instead of twisting and turning? Is there some sort of unforeseen consequence of doing this? (And I did read Thomas’ opinion in McDonald; makes sense to me)
Can you think of a good reason to make sodomy between consenting adults a crime?
As for why they use the Due Process clause, I don’t have a good explanation for that. Maybe it was respect for precedent; since the Slaughterhouse Cases had basically gutted the P or I clause, maybe they felt the Due Process clause was the only way forward.
In today’s world I think that it is pretty silly to continue to have such a law. It was passed at a time when it was widely accepted that sexual acts were a proper thing for the government to regulate. Laws are still on the books outlawing fornication, adultery, sodomy, co-habitation, and the like.
In recent years, it is almost universally recognized that private sexual behavior is something that most people don’t want to bother regulating. But just because public attitudes have changed, doesn’t elevate any of the above to be fundamental rights. The best place to cure those deficiencies is by the legislature repealing laws which no longer serve a purpose.
But given the idea that the state has the power to regulate private sexual behavior (which it historically has had) and that if the people of a state through their elected representatives decides that sodomy between consenting adults is something that they feel is injurious to the public morality or health, then it is a legitimate law in my opinion. It’s stupid as hell given that most people have no interest in enforcing the law and that homosexuality is more accepted today.
It is a leap however, to say that just because you, I, and most people disagree with the law, that there is no rational basis for it. Determining whether a law is good, bad, or rational should be the job of the legislature unless it touches a fundamental right.
A notion completed unsupported by the actual words of the duly ratified Constitution. The ninth is a rule of construction–it provides no guidance as to what those unenumerated rights are. A Justice who detects a right not enumerated is legislating from the bench. Not that there’s any lack of examples of that.
If it’s not a power granted in the U.S. Constitution, then the tenth says it’s up to the states. The Constitution states that the legislature makes law (including the Constitution, for that matter). Any Justice who says, “I recognize this unenumerated right, but not that one” is usurping the power of the legislature, in defiance of the powers granted by the Constitution.
And who gets to decide if it’s a fundamental right – the legislature? Ah-oh. That’s circular.
Isn’t that sort of the definition of “unenumerated…”? Doesn’t the Constitution as a whole give guidance?
It’s “legislating from the bench” when it’s a bad ruling decided by “that side” of the court. It is an intelligent application of the Ninth if it is a good ruling decided by my side of the court.
No, it’s not. It’s axiomatic. In our system, that’s what the legislature does. The legislature enshrines certain rights as law, including those in the Constitution (which is a legislative product). Which rights deserve legal protection? The ones the legislatures says so (again, including those in the Constitution).
Read the ninth. It gives absolutely no guidance as to what those unenumerated rights are or aren’t. Madison himself indicated it was simply a direction on how to apply the Constitution, and it has been referenced twice, I think, in the history of the U.S. as a specific source of a right, both times idiotically (Roe being one). It is there simply to prevent SCOTUS from dismissing a right that a state protects simply because it is not enumerated. It gives SCOTUS zero guidance regarding what the unenumerated rights might be, and it certainly does not grant them the power to create the inventory of such a list.
Seriously, read the ninth and tell me which unenumerated rights that directs us to accept and which to ignore. It is shapeless to the point that one could identify any right one felt inclined to. And I don’t care which “side” of the court is the majority. I do have the crazy notion, though, that the majority ought to find their constitutional rationales from the words in the Constitution. And not, you know, make shit up. Like substantive due process.
So a law providing that, e.g, “no observant Jew may contract marriage within this State” would be valid? It deprives nobody of any rights – you can be a practicing Jew. Or you can marry. Your choice – not both. Because there’s no explicit Constitutional right to marry.
In fact, the great and sovereign State of Freedonia, acting under its Tenth Amendment rights, has adopted the law that says that no marriages, whether supposedly contracted within Freedonia or contracted elsewhere, shall be recognized by the state and its courts. Free love, baby!
Do these pass Constitutional muster? Why or why not?
I say the first fails because of first amendment concerns–it applies a restriction only to a particular religion. The second, fire away, no U.S. constitutional issues. I think the legislators will be bounced out on their asses and the law repealed quickly, and likely never enforced. Such are the safeguards against legislative silliness that has worked for a long, long time. But SCOTUS ought to have no opinion on it. It’s up to the will of Freedonia’s people (as voiced by their elected officials), and no one knows better than them whether or not the institution of marriage will serve them best. Just IMO, of course. I realize SCOTUS says otherwise. But they’re not as wise as I am.
Much as I like that the Supreme Court recently held that the Second Amendment applies to the states under the Fourtheenth amendment, I can’t help but notice that the “due process” clause has been exceeded only by the Interstate Commerce Clause in it’s expansive interpretation of federal power. The whole reason the Supreme Court in the Slaughterhouse cases struck down most of the Privileges and Immunities part of the Fourteenth was precisely because interpreted broadly it would give the Federal government almost unlimited power to overrule the state governments- something the SC of the nineteenth century was unwilling to sanction. Now the due process clause has been used to achieve much the same end.
Maybe, but whether that’s true or not, that horse is out of the barn, and has been since at least Allgeyer, with its “liberty to contract”. and that’s about 115 years old.
Yep. I just tilt at windmills periodically, but I agree, that ship has sailed. I understand and expect that decisions will be made with only the vaguest of relationships to the actual words of the Constitution and the powers vested in SCOTUS, if at all.
I agree. The application of the interstate commerce clause is my other go-to windmill. George Will has described it as elastic to the point of infinity. Between that and substantive due process, there appears to be virtually nothing that couldn’t be considered to be within the power of the Feds to influence, create, edify or eradicate. Whatever right they detect in the Force, they get to install as law. Whatever right offends them, out it goes. No need to search too hard for any text to support the decision.
Intersting to note how the Supreme Court got widely condemned (:eek:) by not interfering with a legislative determination on what a local government could do. I’m referring to Kelo v. City of New London, where the court declined to substitute its judgment regarding proper scope of “public use” for eminent domain cases. [Note: the Supreme Court ruled in the 1830s that the taking clause applied only to the federal government, so the *Kelo *decision relied on 14th amendment grounds.]