# Constitutional Interpretation. Again. **URL:** \ **Category:** Great Debates\ **Created:** [June 14, 2005, 9:36pm UTC](https://boards.straightdope.com/t/constitutional-interpretation-again/308277 "2005-06-14T21:36:07Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [June 17, 2005, 1:55am UTC](https://boards.straightdope.com/t/constitutional-interpretation-again/308277/41 "2005-06-17T01:55:10Z")
> [@Bricker](#): > > That was the original intent, huh? > > Art IV, Sec 2 was probably a slip of the pen? No, it was a conscious decision in order to get some kind of a central government that was viable. That was the primary aim of the framers and all other conderations had to take a back seat. I think that you know perfectly well that the framers were men of affairs and those affairs were being damaged by the weakness of the central government under the Articles of Confederation. The United States had little credit or reliable currency so foreign trade was difficult. The commerce between the states was impeded by petty bickering and tit-for-tat charges and fees and business in general was getting pretty hard to conduct. The framers also knew that if slavery were to be touched upon in any way other than giving it some limited support there would be no new central government and their businesses would continue to suffer. So they pretty much ducked except for the clause you cited, and I cited even earlier, and another than banned importation of slaves after some year that I can’t remember at the moment. The clause you cited was a sop to the slaveowners in order to get some kind of strong central government into operation. And in that there was a certain amount of duplicity. One of the stated purposes of the document is to secure the blessings of liberty consistent with domestic tranquillity and the common defence. But the framers were so intent on getting something that the question of slavery could not be addressed. Unfortunately the presence of such a clause and the absence of any other mention of slavery allowed congress to ignore slavery for 100 years and the follow on legal segregation of the blacks for another 100. And I say that is a shame for which strict construction bears some responsibility. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 17, 2005, 2:16am UTC](https://boards.straightdope.com/t/constitutional-interpretation-again/308277/42 "2005-06-17T02:16:34Z")
> [@David Simmons](#): > > Unfortunately the presence of such a clause and the absence of any other mention of slavery allowed congress to ignore slavery for 100 years and the follow on legal segregation of the blacks for another 100. And I say that is a shame for which strict construction bears some responsibility. Listen: if the Constitution explicitly permitted slavery, you may not blame judges for permitting slavery. They were doing their job. You might argue that a judge should have resigned in lieu of issuing decisions in favor of slavery, and that’s a valid argument. But if you are truly ready to cede to judges the power to impose their moral views over the letter of the law, then I wonder how you will like it when the next instance of Alabama’s Roy Moore comes along. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [June 17, 2005, 3:12am UTC](https://boards.straightdope.com/t/constitutional-interpretation-again/308277/43 "2005-06-17T03:12:29Z")
> [@Captain Amazing](#): > > Yeah, but technically, that’s just dicta. 😃 And actually, thinking more about it, it’s not even a question of substantive due process…it’s a question of proceedural due process. If you look at a case decided the year before, Murray v. Hoboken Land and Improvement Co., the court says: > [@](#): > > That the warrant now in question is legal process, is not denied. It was issued in conformity with an act of Congress. But is it ‘due process of law?’ The constitution contains no description of those processes which it was intended to allow or forbid. It does not even declare what principles are to be applied to ascertain whether it be due process. It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process ‘due process of law,’ by its mere will. Here, we have a case where a person legally owns a piece of chattel property, and then, by the act of taking it into a US territory, he permanently and irrevocably loses his ownership of that property (not only that, he does so without compensation, raising a takings question). How is this consistant with due process guaranteed in the amendment, given that property is specifically mentioned in the due process clause? If Congress passed a law saying, “ **Bricker** shall be killed” would that be due process? ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [June 17, 2005, 5:06am UTC](https://boards.straightdope.com/t/constitutional-interpretation-again/308277/44 "2005-06-17T05:06:59Z")
> [@Bricker](#): > > Listen: if the Constitution explicitly permitted slavery, you may not blame judges for permitting slavery. They were doing their job. You might argue that a judge should have resigned in lieu of issuing decisions in favor of slavery, and that’s a valid argument. But if you are truly ready to cede to judges the power to impose their moral views over the letter of the law, then I wonder how you will like it when the next instance of Alabama’s Roy Moore comes along. Good point and I guess we have to depend upon the checks and balances to see that not too many Roy Moores get confirmed. I certainly don’t advocate judges just doing as they please on every occasion and I think the record is that most judges do follow precedent and try to make a reasonable interpretation of the words in the laws and the constitution. As an aside, Merriam-Webster _Collegiate_ defines _stare decis_ in such a way that there is an exception if following precedent would violate what it terms “ordinary principles of justice.” Is the also the common meaning given to the term in the profession? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 17, 2005, 6:36am UTC](https://boards.straightdope.com/t/constitutional-interpretation-again/308277/45 "2005-06-17T06:36:57Z")
Forget about Roy Moore-- there is a valid constitutional argument that posting the Ten Commandments is a violation of the 1st Amendment. After all, what does the very 1st Commandment say? What you should worry about is several activist judges of the conservative stripe who rule that a fetus is a person and deserving of protection as such. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [June 17, 2005, 11:20am UTC](https://boards.straightdope.com/t/constitutional-interpretation-again/308277/46 "2005-06-17T11:20:36Z")
> [@Bricker](#): > > The decision to dismiss based on standing was not SDP. The portion of the ruling that I quoted was SDP. The use of the term “due process” in the .01% of the decision that you quoted does not make the decision, or even just that portion, “substantive due process.” There was no creation of a liberty interest, there was no finding of a fundamental right. There was nothing “substantive” about it. In addition, Dred Scott was, first and foremost, a property case. Taney spent page after page describing why Dred Scott was property (which was pure strict constructionism, by the by) and one paragraph saying that there was no due process for the taking of the property. Hell, there was no process at all. And, remember, it was dicta. Supporters of “strict constructionism” or “originalism” do not want to be associated with the Dred Scott case, no matter how patently obvious that the decision itself was strict constructionist. So they, and Bush during the debates, made up the assertion that Dred Scott was somehow “substantive due process”. While I am no longer surprised at the repetition of a misstatement somehow gives it credence, I am surprised that it seems to have happened in the realm of constitutional jurisprudence. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [June 17, 2005, 12:55pm UTC](https://boards.straightdope.com/t/constitutional-interpretation-again/308277/47 "2005-06-17T12:55:35Z")
> [@Captain Amazing](#): > > If Congress passed a law saying, “ **Bricker** shall be killed” would that be due process? That’d be a [Bill of Attainder](http://caselaw.lp.findlaw.com/data/constitution/article01/47.html#2). 😉 ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [June 17, 2005, 3:42pm UTC](https://boards.straightdope.com/t/constitutional-interpretation-again/308277/48 "2005-06-17T15:42:03Z")
> [@Gfactor](#): > > That’d be a [Bill of Attainder](http://caselaw.lp.findlaw.com/data/constitution/article01/47.html#2). 😉 Details, details. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 17, 2005, 3:51pm UTC](https://boards.straightdope.com/t/constitutional-interpretation-again/308277/49 "2005-06-17T15:51:33Z")
> [@John Mace](#): > > What you should worry about is several activist judges of the conservative stripe who rule that a fetus is a person and deserving of protection as such. Sure – and that would be a classic “Wrong process, right result” for me. I _do_ believe that a fetus is a person and deserving of protection. And it wouldn’t even be creating new language for the Constitution – just defining “person” a bit differently. But I recognize that the 14th Amendment was never intended to apply to the unborn, and that such a monumental change, welcome though it owuld be, should properly come from the legislature. If the courts did it, I’d be the first to call it an activist decision. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 17, 2005, 4:20pm UTC](https://boards.straightdope.com/t/constitutional-interpretation-again/308277/50 "2005-06-17T16:20:56Z")
> [@Hamlet](#): > > The use of the term “due process” in the .01% of the decision that you quoted does not make the decision, or even just that portion, “substantive due process.” There was no creation of a liberty interest, there was no finding of a fundamental right. There was nothing “substantive” about it. In addition, Dred Scott was, first and foremost, a property case. Taney spent page after page describing why Dred Scott was property (which was pure strict constructionism, by the by) and one paragraph saying that there was no due process for the taking of the property. Hell, there was no process at all. And, remember, it was dicta. > > Supporters of “strict constructionism” or “originalism” do not want to be associated with the Dred Scott case, no matter how patently obvious that the decision itself was strict constructionist. So they, and Bush during the debates, made up the assertion that Dred Scott was somehow “substantive due process”. While I am no longer surprised at the repetition of a misstatement somehow gives it credence, I am surprised that it seems to have happened in the realm of constitutional jurisprudence. I agree that it was primarily a property case, and that it was decided by strictly reading the Constitution – which, absent the 13th Amendment, clearly permitted slavery. I have no problem with that. But it is also the grand-daddy of substantive due process doctrine. For the reader: What is “substantive due process?” It’s the concept that certain rights cannot be taken without appropriate governmental justification, regardless of the procedures used to do the taking. It requires a balancing of the government’s justification against the importance of the right in question. Who decides that a certain right deserves the protection of this shield? The courts. Who creates the test to balance the government’s interests against that value of the right in question? The courts. And who assigns the weight to each isde of the balancing scale when carrying out this test? The courts. How did _Dred Scott_ start this ball rolling? Why do I claim it’s the grand-daddy of this concept? > [@Justice Taney](#): > > And an act of Congress which deprives a citizen of the United States of his liberty or property, without due process of law, merely because he came himself or brought his property into a particular territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law… Here it is. The Court is saying that no process that frees a slave because the slave was brought into territory where slavery was illegal is acceptable. The right to own a slave is balanced against the interest of the government in having slavery-free territories and the government’s interest loses. The Constiution does not make this distinction. It mandates “due” process. The Court here was saying that no amount of process in this circumstance would rise to the level of “due.” Fifteen fact-finding hearings in a row would not suffice, even if all fifteen proved that Sanford brought his slave to a place where slavery was illegal, unrecognized, and against public policy. No process of law was sufficient to meet the “due” requirement when the issue was forcing a slave owner to abide by the laws of the territory he was in and relinquish ownership of his slave. THAT is the root of substantive due process - the idea that to decide no amount of process will ever rise to the level of “due.” And THAT is what the Dred Scott decision did. Don’t blame me if your great-grampy is ugly. ---
**Author:** ![AndyMatts](https://avatars.discourse-cdn.com/v4/letter/a/b38774/32.png) [@AndyMatts](https://boards.straightdope.com/u/AndyMatts)\ **Post date:** [June 17, 2005, 4:43pm UTC](https://boards.straightdope.com/t/constitutional-interpretation-again/308277/51 "2005-06-17T16:43:11Z")
> [@Gfactor](#): > > “My job is to pick people who will interpret the Constitution, not use the bench from which to write laws,” says the President. > > [http://www.foxnews.com/story/0,2933,157388,00.html](http://www.foxnews.com/story/0,2933,157388,00.html) > > If that is so, why not seek the smartest judges, or those who have been reversed the least? > > What does it mean to “interpret the Constitution” as opposed to writing laws. Does the Constitution provide answers to all questions? Are there right answers out there for people to find? > > Is Bush’s judicial appointment strategy inconsistent with the quoted statement? > > Is Bush correct about his description of his job in appointing judges? If you are a Republican - not intervening and making new laws from the bench in a “right to determine medical care” case = legislating from the bench. If you are a Democrat, not stopping anything conservatives get passed into legislation = legislating from the bench. Any ruling that agrees with me = proper interpretation of the Consitution Anything I disagree with = Activist Jurist At least that all applies in today’s world of rhetoric. If it’s a politician or a pundit, you can pretty much ignore whatever they have to say as far as defining activist or constructionist judges. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [June 17, 2005, 6:11pm UTC](https://boards.straightdope.com/t/constitutional-interpretation-again/308277/52 "2005-06-17T18:11:56Z")
> [@Bricker](#): > > I agree that it was primarily a property case, and that it was decided by strictly reading the Constitution – which, absent the 13th Amendment, clearly permitted slavery. I have no problem with that. But it is also the grand-daddy of substantive due process doctrine. More like grandaddy’s second cousin’s hairdresser’s dog, twice removed, on your mother’s side. > [@Bricker](#): > > Here it is. One paragraph. Of hundreds. From dicta. And ignoring the remaining 99.9% of the decision. > [@Bricker](#): > > The Court is saying that no process that frees a slave because the slave was brought into territory where slavery was illegal is acceptable. The right to own a slave is balanced against the interest of the government in having slavery-free territories and the government’s interest loses. That’s not what it says, though, your “interpretation” notwithstanding. What he is saying is that there was no process at all, let alone due process. There is absolutely no need to get into the issues of the “substantive” nature of due process where there was no process at all. Which adds to the point that it was a throwaway paragraph. Taney didn’t think the issue was even worth addressing in full. And, Taney never, ever recognized the “right to own a slave”, thereby creating a right. That’s one of the reasons he spent page after page of his originalist manifesto arguing Dred Scott is property. > [@Bricker](#): > > The Constitution does not make this distinction. It mandates “due” process. The Court here was saying that no amount of process in this circumstance would rise to the level of “due.” Fifteen fact-finding hearings in a row would not suffice, even if all fifteen proved that Sanford brought his slave to a place where slavery was illegal, unrecognized, and against public policy. No process of law was sufficient to meet the “due” requirement when the issue was forcing a slave owner to abide by the laws of the territory he was in and relinquish ownership of his slave. Again, not what he said. > [@Taney](#): > > THAT is the root of substantive due process - the idea that to decide no amount of process will ever rise to the level of “due.” And THAT is what the Dred Scott decision did. Again, that’s not what the Dred Scott decision did. The decision in Dred Scott, as you admit, was that Dred Scott had no right to sue. Which was decided completely on originalist and strict constructionist grounds. Which leaves the advocates of those theories of constitutional interpretation looking bad, so they created this meme that Dred Scott was substantive due process. The one iota of the decision that you quoted may, if you squint, look at it sideways and with a severely partisan-colored glasses, in a vague way, say something about due process. Getting from there to the conclusion that the case somehow is related to any other substantive due process case is untenable. > [@Bricker](#): > > Don’t blame me if your great-grampy is ugly. That’s funny, cause he seems to have your eyes, your hair, your mouth, your teeth, your ears, your body-type, and your DNA. But go ahead and ignore that festering sore on his face and pick nits out of his big toe which, in the dark, may look like me. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 17, 2005, 7:00pm UTC](https://boards.straightdope.com/t/constitutional-interpretation-again/308277/53 "2005-06-17T19:00:18Z")
> [@Hamlet](#): > > The decision in Dred Scott, as you admit, was that Dred Scott had no right to sue. Which was decided completely on originalist and strict constructionist grounds. Which leaves the advocates of those theories of constitutional interpretation looking bad, so they created this meme that Dred Scott was substantive due process. Not remotely. The decision does not reflect poorly on strict constructionists. It was the right decision. The decision reflects poorly on the lawmakers of the time, who had legalized slavery. The only people who believe it reflects badly on strict constructionists are the people that believe the courts should leap in and fix bad law by writing their own law. A failure to do that is obviously a profound failure, in their eyes. Dred Scott was decided in a time when slaves were legal non-persons. It was the correct legal decision - slaves had no standing to sue. All else is dicta, and the decision itself is solidly grounded in strict construction. I have no heartburn whatsoever acknolwedging that. And I’ll even allow that Taney may have had no intent of building any sand-castles upon his throwaway, “0.01%” use of due process. But the sandcastle started growing anyway. _Hurtado v. California_. A tiny step. _Mugler v. Kansas_. A bit more bold. _Loan Association v. Topeka_. Now we’re getting somewhere. Now we’ve trashed the restraints urged in Slaughterhouse. Now we can safely slip _Budd v. New York_ into play. More sand for the castle. Munn v. Illinois? Nonsense, dear chap. Never heard of it. Sand, baby. Matthew 7:26. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [June 17, 2005, 7:10pm UTC](https://boards.straightdope.com/t/constitutional-interpretation-again/308277/54 "2005-06-17T19:10:00Z")
> [@Bricker](#): > > IThe Constiution does not make this distinction. It mandates “due” process. The Court here was saying that no amount of process in this circumstance would rise to the level of “due.” Fifteen fact-finding hearings in a row would not suffice, even if all fifteen proved that Sanford brought his slave to a place where slavery was illegal, unrecognized, and against public policy. No process of law was sufficient to meet the “due” requirement when the issue was forcing a slave owner to abide by the laws of the territory he was in and relinquish ownership of his slave. > > THAT is the root of substantive due process - the idea that to decide no amount of process will ever rise to the level of “due.” And THAT is what the Dred Scott decision did. I don’t believe that’s true, but if it was, the granddaddy of substantial due process isn’t Dred Scott, it’s the Murray case I quoted above, which says that due process also limits the legislative branch…that the mere passage of a law by congress doesn’t constitute due process. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [June 17, 2005, 7:25pm UTC](https://boards.straightdope.com/t/constitutional-interpretation-again/308277/55 "2005-06-17T19:25:16Z")
> [@Bricker](#): > > Dred Scott was decided in a time when slaves were legal non-persons. It was the correct legal decision - slaves had no standing to sue. Well, while that’s true, Scott’s status as a slave was the matter at issue here. Taney ruled that, even if, arguendo, Scott was a free man, the fact that he was black and a descendant of slaves gave him no standing to sue (which Curtis pretty much demolishes in his dissent). ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [June 17, 2005, 7:30pm UTC](https://boards.straightdope.com/t/constitutional-interpretation-again/308277/56 "2005-06-17T19:30:51Z")
> [@Bricker](#): > > Not remotely. The decision does not reflect poorly on strict constructionists. It was the right decision. The decision reflects poorly on the lawmakers of the time, who had legalized slavery. The only people who believe it reflects badly on strict constructionists are the people that believe the courts should leap in and fix bad law by writing their own law. A failure to do that is obviously a profound failure, in their eyes. It’s one of the flaws of strict constructionism that is routinely raised whenever these discussions occur. Strict Constructionism and originalism have no concern for justice, right, or the greater principles of the Constitution. The necessity for a strict constructionist to sit by and allow great injustices to occur is not a positive, it is most certainly a negative. And, for approximately the 837th time, you can disagree with strict constructionism and originalism and not advocate that the “courts should leap in and fix bad law by writing their own law.” But why would I expect this time that would sink in? > [@Bricker](#): > > Dred Scott was decided in a time when slaves were legal non-persons. It was the correct legal decision - slaves had no standing to sue. All else is dicta, and the decision itself is solidly grounded in strict construction. I have no heartburn whatsoever acknolwedging that. Ahhh, but that’s not the end. Bork, then Scalia, and then Bush all tried to take what is acknowledged as a injust decision, and trying to push it off on the evils of substantive due process, where it does not belong. Rather than saying, as you appear to, that, yes strict constructionism can lead to horrible injustices, Borkaliaush (like the name?) goes beyond that and try to paint SDP with the same brush. > [@Bricker](#): > > And I’ll even allow that Taney may have had no intent of building any sand-castles upon his throwaway, “0.01%” use of due process. > > But the sandcastle started growing anyway. _Hurtado v. California_. A tiny step. _Mugler v. Kansas_. A bit more bold. _Loan Association v. Topeka_. Now we’re getting somewhere. Now we’ve trashed the restraints urged in Slaughterhouse. Now we can safely slip _Budd v. New York_ into play. More sand for the castle. Munn v. Illinois? Nonsense, dear chap. Never heard of it. > > Sand, baby. Matthew 7:26. And Dred isn’t even on the same effin beach. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [June 18, 2005, 5:28am UTC](https://boards.straightdope.com/t/constitutional-interpretation-again/308277/57 "2005-06-18T05:28:49Z")
> [@Bricker](#): > > OK. By “right process” I mean courts sticking to their role as interpreters of the substantive law created by the legislature. A court that creates new substantive law on it’s own is “wrong process.” “Right result” means an end result I personally agree with: bad guys goes to jail, deserving individual protected, whatever. “Wrong result” means that I personally disagree with the specific end result of the case. Illegally-obtained evidence suppressed and bad guy goes free might be a “right process, wrong result” type of example. > > 1. Right process, right result: _Carroll v. US_ Interesting that you would pick this one. \*Carroll \* involved an interpretation of the Fourth Amendment, which says: > [@](#): > > The right of the people to be secure in their persons, houses, papers, and effects, against \*unreasonable \* \*searches \* and _seizures_, shall not be violated, and no Warrants shall issue, but upon _probable cause_, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (Emphasis added.) All of the italicized terms have proven hard to define. In _Caroll_, the issue was whether a statute permitting the warrantless search and seizure of liquor from a vehicle was consistent with the Fourth Amendment: The intent of Congress to make a distinction between the necessity for a search warrant in the searching of private dwellings and in that of automobiles and other road vehicles in the enforcement of the Prohibition Act is thus clearly established by the legislative history of the Stanley Amendment. Is such a distinction consistent with the Fourth Amendment? We think that it is, The Fourth Amendment does not denounce all searches or seizures, but only such as are unreasonable. The Court went on to find in the term “unreasonable” a distinction between searches of private dwellings (which required a warrant) and searches of automobiles (which did not). The analysis is sort of a golem of Dworkin and Scalia: > [@](#): > > \*On reason and authority \* the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstaces known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid. \*The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens. \* (Emphasis added.) Scalia says you should look at what was considered reasonable at the time the Constitution was drafted; Dworkin says you should try to figure out what is reasonable in light of what the moral command, “Don’t search in an unreasonable fashion” means (in a manner which will conserve public interests…). Taft conjoins the two ideas. Taft also imports a distinction between evidence and contraband that does not derive directly from the term “unreasonable.” Next, he reads the probably cause requirement, which in the text applies to the issuance of warrants, to warrantless searches: > [@](#): > > But those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known to a competent official, authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise and then there is this gem: > [@](#): > > The main purpose of the act obviously was to deal with the liquor and its transportation, and to destroy it. The mere manufacture of liquor can do little to defeat the policy of the Eighteenth Amendment and the Prohibition Act, unless the forbidden product can be distributed for illegal sale and use. Section 26 was intended to reach and destroy the forbidden liquor in transportation and the provisions for forfeiture of the vehicle and the arrest of the transporter were incidental. Interpreting the statute based on its purpose! Based on this interpretation based on the purpose of the statute, Taft rejects the argument that by making the crime a misdemeanor, Congress actually barred search and seizure unless the crime was a third offense (which was a felony) because that was the law at the time. McReynold’s argued that the same logic that justified the decision that warrantless searches of cars on probable cause were reasonable justified the conclusion that searches were barred for first offenses: > [@](#): > > Nor are we now concerned with the question whether by apt words Congress might have authorized the arrest without a warrant. It has not attempted to do this. On the contrary, the whole history of the legislation indicates a fixed purpose not so to do. First and second violations are declared to be misdemeanors-nothing more-and Congress, of course, understood the rule concerning arrests for such offenses. Whether different penalties should have been prescribed or other provisions added is not for us to inquire; nor do difficulties attending enforcement give us power to supplement the legislation. Now that’s strict construction. So let’s see, Taft looks at the Fourth Amendment and sees in the term unreasonable, a distinction between searches of residences and searches of other property, a distinction between seizures of personal papers and seizures of contraband, and a requirement that warrantless searches be accomplished only on probable cause. The last item despite the fact that Congress used the apt words for such a distinction in the very next clause, which plainly shows that Congress knew how to tell us that searches required probable cause, but decided not to. Instead, Congress reserved the probable cause requirement for the issuance of warrants. As Cohen puts it, you don’t learn any of these distinctions by thinking hard about the word unreasonable. Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809 (1935). What am I missing? ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [June 18, 2005, 6:48am UTC](https://boards.straightdope.com/t/constitutional-interpretation-again/308277/58 "2005-06-18T06:48:57Z")
> [@Bricker](#): > > OK. By “right process” I mean courts sticking to their role as interpreters of the substantive law created by the legislature. A court that creates new substantive law on it’s own is “wrong process.” “Right result” means an end result I personally agree with: bad guys goes to jail, deserving individual protected, whatever. “Wrong result” means that I personally disagree with the specific end result of the case. Illegally-obtained evidence suppressed and bad guy goes free might be a “right process, wrong result” type of example. > > 1. Right process, right result: _Carroll v. US_ > 2. Right process, wrong result: _Kyllo v. U.S._ An omphaloskepsis into the meaning of the term “search.” As the Court point out, it has been doing much a lot of thinking about the term: > [@](#): > > One might think that the new validating rationale would be that examining the portion of a house that is in plain public view, while it is a "search"1 despite the absence of trespass, is not an “unreasonable” one under the Fourth Amendment. See Minnesota v. Carter, 525 U. S. 83, 104 (1998) (Breyer, J., concurring in judgment). But in fact we have held that visual observation is no “search” at all–perhaps in order to preserve somewhat more intact our doctrine that warrantless searches are presumptively unconstitutional They start with the word “search,” and we quickly take a journey to the center of the mind: > [@](#): > > As Justice Harlan’s oft-quoted concurrence described it, a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable. See id., at 361. We have subsequently applied this principle to hold that a Fourth Amendment search does not occur–even when the explicitly protected location of a house is concerned–unless “the individual manifested a subjective expectation of privacy in the object of the challenged search,” and “society [is] willing to recognize that expectation as reasonable.” um. . . I just see the word search there . . . but they found all of these nice distinctions in a dictionary? > [@](#): > > It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology. So the meaning of the word search . . . has changed? Who changed it? It wasn’t the legislature. > [@](#): > > We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area,” constitutes a search–at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted. (Textual citation omitted.) What about the word “search” suggests this result? What does this have to do with interpreting the text? When the technoogy enters general public use, what happens to the degree of privacy that existed when the Fourth Amendment was adopted? > [@](#): > > We have said that the Fourth Amendment draws "a firm line at the entrance to the house[.] That line, we think, must be not only firm but also bright–which requires clear specification of those methods of surveillance that require a warrant. While it is certainly possible to conclude from the videotape of the thermal imaging that occurred in this case that no “significant” compromise of the homeowner’s privacy has occurred, we must take the long view, from the original meaning of the Fourth Amendment forward. (Citation omitted.) As I have already pointed out, \*Carroll \* came up with the idea that warrants are required for searches of homes but not for those outside of homes by reading the distinction into the term “unreasonable.” Now they are generalizing this concept and using it to tell what a search is. But remember the Fourth Amendment protects persons, houses, papers, and effects, against unreasonable searches and seizures. It doesn’t mention any entrances. > [@](#): > > 1. Wrong process, wrong result: Roe v. Wade Wait. So it’s ok to read a reasonable expectation of privacy requirement into the term “search,” a warrant/no warrant distinction into the term “unreasonable,” and a probable cause requirement into the created warrant/no warrant requirement when the term “probable cause” appears in the very next clause; but it’s not ok to read an expectation of privacy into other Amendments? This paragraph looks a lot like the ones I have quoted from the cases you said applied the right procedure: > [@](#): > > The Constitution does not explicitly mention any right of privacy. In a line of decisions, however…the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8 -9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484 -485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923). These decisions make it clear that only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541 -542 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453 -454; id., at 460, 463-465 [410 U.S. 113, 153] (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra. Doesn’t it? The Court’s rule in \*Roe \* seems no more legislated that the one in _Kyllo_. The reason is the same. Each of the Amendments identified in these case is textually open. They all contain words that have no concrete referents. Unreasonable, Due Process, Liberty. All of these words are abstract and invite exactly the kind of philosophizing the court does in all three of these cases. They don’t invite courts to create statutes. But they leave the court to fill in the blanks. > [@](#): > > 1. Wrong process, right result: Gonzales v. Raich. Again, I see this case as consistent ith \*Caroll \* and _Kyllo_. This is another case where the standard doesn’t follow directly from the words. Rational basis, class of activities, aggregates, substantial effects? The words “commerce among the several states” does not bring any of these terms to mind. A narrow reading might be that the clause give congress to regulate commercial relations between states. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [June 18, 2005, 2:54pm UTC](https://boards.straightdope.com/t/constitutional-interpretation-again/308277/59 "2005-06-18T14:54:34Z")
> [@Bricker](#): > > > [@Gfactor](#): > > > > Dred Scott? > > Wrong process, wrong result. The first glimmerings of the substantive due process doctrine!! I think this has already been straightened out elsewhere in this thread. The holding seems to be a pretty good example of your process. The dicta suggests the beginnings of substantive due process. Given what I have said about \*Carroll \* and _Kyllo_, though, I don’t see much of a difference between search and seizure jurisprudence, which uses the open words of the Fourth Amendment to create distinctions not fouund in the text, and then create distinctions based on those distinctions; and substantive due process jurisprudence, which does the same thing with the Fourteenth and Fifth (and sometimes a few others). > [@](#): > > Bush v. Gore Wrong process, right result. (Shaky legal reasoning, but it reversed the Florida Supreme Court’s shaky reasoning). [/quote] On this one, we agree that the process was wrong, probably for different reasons, but disagree on the result. My feelings about the result are largely based on Federalism concerns. This just was not a case for the federal courts. I’m with [Dworkin](http://www.nybooks.com/articles/13954) on this one. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [June 19, 2005, 1:02am UTC](https://boards.straightdope.com/t/constitutional-interpretation-again/308277/60 "2005-06-19T01:02:12Z")
Response to **Bricker’s** argument that **Myers & Marsh** are examples of right procedure-right result cases. Hadn’t read these in ages. Here’s what I get. _Myers_ held unconstitutional a statute that subjected the president’s decision to remove first-class postmasters to a requirement that the Senate consent to the removal. The Court found that the executive power included the power to freely remove appointees. 1. A truly strict reading of the Constitution would be that officers are only removable by impeachment. > [@](#): > > The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. > **[U.S. Constitution - FindLaw](https://constitution.findlaw.com/)** > > Find law and legal articles including lawyers for legal advice, legal rights or legal help to your legal issues So if it was justice Bricker deciding the case, the opinion should be very short: > [@](#): > > There is no express provision respecting removals in the Constitution, except as section 4 of article 2, above quoted, provides for removal from office by impeachment. The subject [272 U.S. 52, 110] was not discussed in the Constitutional Convention. > **[FindLaw's United States Supreme Court case and opinions.](https://caselaw.findlaw.com/us-supreme-court/272/52.html)** > > FindLaw's searchable database of United States Supreme Court decisions since 1. Instead of taking the strict interpretation path, the Court looks at the actions of the First Congress, as a historian might, and reads a removal power that does not require the advice and consent of the Senate into the notion of executive power. Such question-begging sleight-of-hand as this, follows: > [@](#): > > It is very clear from this history that the exact question which the House voted upon was whether it should recognize and declare the power of the President under the Constitution to remove the Secretary of Foreign Affairs without the advice and consent of the Senate. That was what the vote was taken for. Some effort has been made to question whether the decision carries the result claimed for it, but there is not the slightest doubt, after an examination of the record, that the vote was, and was intended to be, a legislative declaration that the power to remove officers appointed by the President and the Senate vested in the President alone, and until the Johnson impeachment trial in 1868 its meaning was not doubted, even by those who questioned its soundness. So the Court is willing to construe the Constitution \*against \* its language if it is clear that Congress intended it to. But on your theory, shouldn’t Congress have put it in there if they had wanted it? This particular passage is about a statute, but in passing the statute, Congress needed to decide whether the constitution permitted the executive to remove officers without the Senate’s approval–that’s why the Court is talking about it. In further discussing the reasons that the House thought that the president had a Senate-free removal power, the Court explains the sort of arguments that persuaded the House to so believe: 1. It’s part of the structure of the Constitution. By establishing separate executive and legislative branches, the drafters implicitly gave unfettered removal power to the executive. [Obviously, this begs the question. The Court could easily have concluded that by assigning advice and consent of approvals to the Senate, the drafters implicitly gave the Senate advice and consent power over removals. There is nothing special about either conclusion]. [This is a structural argument that does not appeal to the text of the document at all]. 1. It’s necessary for the executive to have this power so that the executive can “take care that the laws be faithfully executed.” [Again, this begs the question. It is also another structural argument. While it does mention language, the language does not specifically discuss the issue at hand.] The Court makes clear that this necessity trumps the language of the Constitution: > [@](#): > > As he is charged specifically to take care that they be faithfully executed, the reasonable implication, **even in the absence of express words** , was that as part of his executive power he should select those who were to act for him under his direction in the execution of the laws. The \*\*further implication \*\* must be, **in the absence of any express limitation respecting removals** , _that as his selection of administrative officers is essential to the execution of the laws by him, so must be his power of removing those for whom he cannot continue to be responsible._ The bolded portions show that the Court was willing to overlook the text to do what it thought the drafters had intended. The italicized outline the perfect rebuttal argument. The executive’s selection of officers is subject to the Senate’s approval. If both appointment and removal are both essential, and Senate approval does not hinder one, why is it an issue for the other? You can’t find the answer by repeating the word executive to yourself. 1. The advice and consent requirement should be strictly construed. > [@](#): > > The requirement of the second section of article 2 that the Senate should advise and consent to the presidential appointments, was to be strictly construed. . . . The executive power was given in general terms strengthened by specific terms where emphasis was regarded as appropriate, and was limited by direct expressions where limitation was needed, and **the fact that no express limit was placed on the power of removal by the executive was convincing indication that none was intended.** (Emphasis added). Hey, wait a second. Maybe the drafters didn’t limit the removal power because they didn’t talk about the removal power at all. So we can read in a removal power and then, having discovered it in an open term, claim that it is unlimited because there is no discussion of how it (an invention of later readers of the document) should be exercised? That just doesn’t scan. 1. It’s incident to the power of appointment. [Again. This begs the question. The power of appointment is subject to advice and consent. If the power has a baby, why doesn’t the baby have its eyes?] Ultimately the Court considers some excellent political reasons for the distinction. But they are political ones. They certainly don’t appear anywhere in the text. [Previous page](https://boards.straightdope.com/t/constitutional-interpretation-again/308277.md?page=2) [Next page](https://boards.straightdope.com/t/constitutional-interpretation-again/308277.md?page=4)