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.
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.
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:
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?
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?
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.
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.
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.
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?
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.
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.
More like grandaddy’s second cousin’s hairdresser’s dog, twice removed, on your mother’s side.
One paragraph. Of hundreds. From dicta. And ignoring the remaining 99.9% of the decision.
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.
Again, not what he said.
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.
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.
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.
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.
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).
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?
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.
Interesting that you would pick this one. *Carroll * involved an interpretation of the Fourth Amendment, which says:
(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:
(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:
and then there is this gem:
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:
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).
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:
They start with the word “search,” and we quickly take a journey to the center of the mind:
um. . . I just see the word search there . . . but they found all of these nice distinctions in a dictionary?
So the meaning of the word search . . . has changed? Who changed it? It wasn’t the legislature.
(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?
(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.
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:
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.
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.
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).
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.
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.
A truly strict reading of the Constitution would be that officers are only removable by impeachment.
So if it was justice Bricker deciding the case, the opinion should be very short:
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:
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:
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].
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:
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.
The advice and consent requirement should be strictly construed.
(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.
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.
