# Limits on the judiciary and the "N" option play
**URL:** https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418
**Category:** Great Debates
**Created:** [May 18, 2005, 3:29pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418 "2005-05-18T15:29:32Z")
**Posts on this page:** 20
**Page:** 12
### Author:  [@Hamlet](https://boards.straightdope.com/u/Hamlet)
#### Post date: [May 22, 2005, 6:33pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/221 "2005-05-22T18:33:01Z")
> [@Dewey Cheatem Undhow](#):
>
> Rather than reinvent the wheel, allow me to refer you to [this old post of mine](http://boards.straightdope.com/sdmb/showpost.php?p=3191420&postcount=134) which describes the actvist nature of _Dred Scott_.
The question I asked was how would a “strict constructionist” rule in Dred Scott. I read your post, and reread Dred Scott. I still don’t follow the argument. It seems to me that a vast majority of the opinion doesn’t even deal with the due process issue, those words are used buy twice in the entire opinion. And when they are mentioned, they are not done so in a manner that I generally equate with “substantive due process”. There was no judicial creation of a right that was not previously recognized, there was no shoehorning into the term “due process”. What the majority seemed to be saying is that denying a person’s ownership of property when they cross state lines, without due process, violates the constitution. Although the opinion relies on the due process clause, I see no creation of a new right (i/e Lochner or Roe, to use your examples), it strikes me much less a substantive due process issue than one of recognizing property rights. The right Dred Scott was concerned with had nothing to do with an unstated “liberty” interest, but rather an interest in “property”.
Do you understand what I’m trying to say?
---
### Author:  [@Gadarene](https://boards.straightdope.com/u/Gadarene)
#### Post date: [May 22, 2005, 7:04pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/222 "2005-05-22T19:04:17Z")
**Hamlet** , let me tell you a story. As you may know, Yale law professor Bruce Ackerman has proposed a grand unified theory of constitutional interpretation, in which he posits that the familiar features of the constitutional landscape historically have been impelled not merely by the Article V amendment process, but by some manifestation of the will of “We the People” in times of change or crisis. These manifestations are known as “constitutional moments,” and serve to amend the Constitution _de facto_ without, well, amending the Constitution. That is, after a constitutional moment, judges and the legislatures must properly behave as if the constitution has been amended, even though the number of formal amendments remains the same. He views this as a validation of the role of popular sovereignty in constitutional change.
Ackerman names three constitutional moments that have occurred thus far in our history – the framing of the Constitution in violation of the Articles of Confederation, the shoehorning in of the Civil War Amendments and the following Reconstruction, and the success of the New Deal. He unifies these three disparate events by stating that each of them proceeded through the five stages of a constitutional moment: Constitutional Impasse, Electoral Mandate, Challenge to Dissenting Institutions, Switch in Time, and Consolidating Election.
He goes to great lengths in his books to try and match up each of his three constitutional moments under this rubric; whether he’s successful (I don’t think he is) is a separate question. What’s both interesting and relevant, though, is that there are other periods in American history which might also easily be seen to accord with those five stages, but which he doesn’t recognize as constitutional moments. Most notably, there is no structural reason that the repudiation of Reconstruction – a constitutional reconfiguration that began with the Slaughterhouse cases and the Hayes-Tilden Compromise of 1877 and continued through _Plessy_, lasting three-quarters of a century – doesn’t also fit within Ackerman’s parameters, **except that Ackerman might not to legitimize a constitutional era so closely tied with racism and subjugation**. I’d argue that Ackerman’s three constitutional moments are grouped together at least as much because they accord with Ackerman’s personal constitutional vision as because they represent unique points of extra-constitutional change.
The point being, people with “magic bullet” theories of constitutional interpretation often are loath to acknowledge that a faithful application of their theory in historical circumstances has led to normatively “bad” results.
Much better, I say, not to have a magic bullet theory at all. Textualism should be one arrow in a quiver of constitutional tools. (Which returns me to responding to **Dewey** , which I’ll do coming up.)
---
### Author:  [@Gadarene](https://boards.straightdope.com/u/Gadarene)
#### Post date: [May 22, 2005, 7:07pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/223 "2005-05-22T19:07:53Z")
“…except that Ackerman might not want to legitimize a constitutional era so closely tied with racism and social subjugation.”
For clarity’s sake, I’d also amend the following sentence thusly:
> [@](#):
>
> The point being, people with “magic bullet” theories of constitutional interpretation often are loath to acknowledge that a faithful application of their theory in historical circumstances has sometimes led to normatively “bad” results.
The underlined words have been added in both cases to my original post. Carry on. 🙂
---
### Author:  [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)
#### Post date: [May 22, 2005, 7:55pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/224 "2005-05-22T19:55:07Z")
> [@Gadarene](#):
>
> But, o strictest of strict constructionists, what is it about the care, control, and management of one’s child that makes it so self-evidently a fundamental liberty interest, even though it’s not mentioned by name (or even alluded to by subject matter) in the constitutional text?
I think “fundamental liberty interest” is unfortunate word choice. What they’re really saying, or ought to be saying, is that the stakes in child custody cases are so high as to warrant a higher threshhold of mandatory procedural safeguards. Which is fine: due process demands more of capital cases than it does of traffic tickets, too. I have no problem with that line of reasoning – interpreting “due process” necessarily entails determining how much process is due under a given set of facts.
> [@Gadarene](#):
>
> Do you agree, by the way, that my proposed construction of the Second Amendment, offered supra, is plausible as an initial matter – that is, before one undertakes the necessary historical inquiry?
By this I take it you’re referring to the “second as militia only, because individual ownership was so obvious” position. I agree it’s plausible, at least as a starting hypothesis, although it’s tough to work around the “of the people” language in the text. Certainly a pure originalist would cede the point if there is historical evidence that the authors intended only to be encapsulating rights related to militias. Textualists would have a harder time swallowing that notion, though.
> [@Hamlet](#):
>
> The question I asked was how would a “strict constructionist” rule in Dred Scott. I read your post, and reread Dred Scott. I still don’t follow the argument. It seems to me that a vast majority of the opinion doesn’t even deal with the due process issue, those words are used buy twice in the entire opinion. And when they are mentioned, they are not done so in a manner that I generally equate with “substantive due process”. There was no judicial creation of a right that was not previously recognized, there was no shoehorning into the term “due process”. What the majority seemed to be saying is that denying a person’s ownership of property when they cross state lines, without due process, violates the constitution. Although the opinion relies on the due process clause, I see no creation of a new right (i/e Lochner or Roe, to use your examples), it strikes me much less a substantive due process issue than one of recognizing property rights. The right Dred Scott was concerned with had nothing to do with an unstated “liberty” interest, but rather an interest in “property”.
_Dred Scott_ cannot be a simple property rights case because if it were, Taney would have to grapple with the just compensation issue. It also fails to meet the analysis you describe because no other property is so treated: if you live in a state that allows handguns, and then go to a state where they are banned, and you are caught with a handgun and have it seized, no one would suggest you have been unlawfully been deprived of your handgun (ignoring _arguendo_ the second amendment issues for the moment). Sure, you probably have a right to a hearing on the matter, but it’s a slam dunk for the state. And the same applies on _Dred Scott_’s facts.
Taney went out of his way to essentially try to craft a constitutional right to own slaves. Indeed, the ultimate disposition of the case was on purely jurisdictional grounds, and under normal rules of jurisprudence that fact should have prevented him from making any kind of ruling on the merits.
---
### Author:  [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)
#### Post date: [May 22, 2005, 8:02pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/225 "2005-05-22T20:02:19Z")
> [@Gadarene](#):
>
> The point being, people with “magic bullet” theories of constitutional interpretation often are loath to acknowledge that a faithful application of their theory in historical circumstances has led to normatively “bad” results.
I don’t disagree. As I’ve said, I think it inappropriate for judges to craft a right to, say, same-sex marriage, even though I support same-sex marriage as a policy matter – that is, I think that the better normative result.
Normative results aren’t an end-all, be-all. I would oppose a perfectly just and wise benevolent dictatorship on purely ideological grounds as well.
I’m with Justice Holmes, who so famously once said of the role of judges in interpreting the constitution: “I always say, as you know, that if my fellow citizens want to go to Hell I will help them. It’s my job.”
---
### Author:  [@Hamlet](https://boards.straightdope.com/u/Hamlet)
#### Post date: [May 22, 2005, 8:21pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/226 "2005-05-22T20:21:31Z")
> [@Dewey Cheatem Undhow](#):
>
> _Dred Scott_ cannot be a simple property rights case because if it were, Taney would have to grapple with the just compensation issue.
IIRC, there wasn’t even an issue of just compensation. The law was a complete prohibition, not after a hearing, not with a certain burden of proof, but a complete prohibition. As such, there was no issue of just compensation for the court to even consider. There wasn’t a “due” to the process at all.
> [@Dewey](#):
>
> It also fails to meet the analysis you describe because no other property is so treated: if you live in a state that allows handguns, and then go to a state where they are banned, and you are caught with a handgun and have it seized, no one would suggest you have been unlawfully been deprived of your handgun (ignoring _arguendo_ the second amendment issues for the moment). Sure, you probably have a right to a hearing on the matter, but it’s a slam dunk for the state. And the same applies on _Dred Scott_’s facts.
See above. There was no “process of law” to even consider. The due process clause, I would imagine, would require a hearing. I’m pretty sure the forfeiture laws do require such process. If the legislature enacted a statute that stated if \_\_\_\_\_\_\_\_\_\_ enters our state, it is no longer considered the property of another, I’m pretty sure that would violate due process. They wouldn’t even have to consider “substantive due process”.
> [@Dewey](#):
>
> Taney went out of his way to essentially try to craft a constitutional right to own slaves.
No, he didn’t. The case is pretty clear that slaves were property, and, as such, the due process clause recognizes the right not to be deprived of life, liberty, or property without due process. If anything, that’s a pretty textual reading of the due process clause. He never creates a right that wasn’t there in the text of the clause. Just because it was the due process clause doesn’t make it “substantive”.
> [@Dewey](#):
>
> Indeed, the ultimate disposition of the case was on purely jurisdictional grounds, and under normal rules of jurisprudence that fact should have prevented him from making any kind of ruling on the merits.
Yes, but then they wouldn’t have upheld the constitutionality of slavery. Dred Scott is clearly a result orientated case, but they got there by using strict construction, not substantive due process.
And I’m still interested in how you, a strict constructionist, would have ruled in Dred Scott.
---
### Author:  [@Scott\_Plaid](https://boards.straightdope.com/u/Scott_Plaid)
#### Post date: [May 22, 2005, 8:26pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/227 "2005-05-22T20:26:28Z")
> [@Dewey Cheatem Undhow](#):
>
> I don’t disagree. As I’ve said, I think it inappropriate for judges to craft a right to, say, same-sex marriage, even though I support same-sex marriage as a policy matter – that is, I think that the better normative result.
::Old man voice::Are you posting while high on “the weed?”::Old man voice::
We have been over this and over this, time and time again, in threads in which both you and I particapated in. You keep on claming “judges to craft rightS to, say, same-sex marriages.” However, saying it doesn’t make it true, instead it makes it an attempt at the “Big Lie” theory of truth. Not the same thing at all. You simply cannot post such a statement in a thread, have it defeated, then go on to post the same claim in another thread. Believe it or not, people actually read what you post in GD.
“But wait,” you ask,“How is your statement not also an example of the “Big Lie” technique? After all, you keep on saying that when, you are repeating your claim that my statement isn’t true.”
Well, it would be, except in past threads, you and Bricker, made the claim that the ruling of the Mass. judges were examples of Judges breaking laws, and had no real, legitimate claim to an actual point-for-point argument that it wasn’t, but instead a perfectley on point ruling of the State’s constitution. Instead, you simply hand waved away all the points made against you.
[Cite.](http://boards.straightdope.com/sdmb/showthread.php?t=314828)
---
### Author:  [@Polycarp](https://boards.straightdope.com/u/Polycarp)
#### Post date: [May 22, 2005, 8:28pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/228 "2005-05-22T20:28:46Z")
> [@Dewey Cheatem Undhow](#):
>
> I think “fundamental liberty interest” is unfortunate word choice. What they’re really saying, or ought to be saying, is that the stakes in child custody cases are so high as to warrant a higher threshhold of mandatory procedural safeguards. Which is fine: due process demands more of capital cases than it does of traffic tickets, too. I have no problem with that line of reasoning – interpreting “due process” necessarily entails determining how much process is due under a given set of facts.
> By this I take it you’re referring to the “second as militia only, because individual ownership was so obvious” position. I agree it’s plausible, at least as a starting hypothesis, although it’s tough to work around the “of the people” language in the text. Certainly a pure originalist would cede the point if there is historical evidence that the authors intended only to be encapsulating rights related to militias. Textualists would have a harder time swallowing that notion, though.
>
> _Dred Scott_ cannot be a simple property rights case because if it were, Taney would have to grapple with the just compensation issue. It also fails to meet the analysis you describe because no other property is so treated: if you live in a state that allows handguns, and then go to a state where they are banned, and you are caught with a handgun and have it seized, no one would suggest you have been unlawfully been deprived of your handgun (ignoring _arguendo_ the second amendment issues for the moment). Sure, you probably have a right to a hearing on the matter, but it’s a slam dunk for the state. And the same applies on _Dred Scott_’s facts.
>
> Taney went out of his way to essentially try to craft a constitutional right to own slaves. Indeed, the ultimate disposition of the case was on purely jurisdictional grounds, and under normal rules of jurisprudence that fact should have prevented him from making any kind of ruling on the merits.
Pardon my smart-assery here, but all I can hear in this answer, which does have some sense behind it, is that substantive due process is OK when it does what **you** want it to. Which was, I think, your complaint regarding it when it’s used regarding civil rights (good) but not in support of Lochnerian property rights (bad). Am I misinterpreting your position in seeing it founded in a variation on SDP?
---
### Author:  [@Gadarene](https://boards.straightdope.com/u/Gadarene)
#### Post date: [May 22, 2005, 9:02pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/229 "2005-05-22T21:02:50Z")
> [@](#):
>
> Allow me to ask the question again: do you believe that the constitution forbids the states from getting out of the marital-recognition business?
Nope. I do think it forbids them from dissolving or substantially burdening a couple’s already-recognized marriage without that couple’s consent, if the states don’t jump through a whole bunch of strict procedural hoops beforehand.
For those of you who aren’t wholly fluent in constitutional law and are, improbably, still reading this thread, let me offer an encapsulated take on the difference between procedural and substantive due process as articulated by the courts. **Dewey** , **Poly** , **Hamlet** , and **Bricker** , et al., feel free to correct or amplify my explanation.
The Fifth Amendment states in part that “no person . . . shall be deprived of life, liberty, or property without due process of law.” The Fourteenth Amendment extends this edict to the states.
The first tricky bit here is figuring out whether something constitutes life, liberty, or property. Slaves are property, per _Dred Scott_; being able to raise your child your own way is a protected liberty, per _Santosky_; being able to enter into a contract with a consenting individual is also a protected liberty, as _Lochner_, for example, acknowledges.
Two important points here:
1. There is virtually unanimous agreement that something need not be explicitly mentioned in the constitutional text in order to be classified as a life, liberty, or property interest. That is, the Constitution doesn’t say, “The following things shall be considered liberty interests…” It is necessarily left to the courts and the legislatures to so infer. “Liberty” could fairly easily be restricted to, literally, a person’s liberty – whether or not an individual is being bodily confined by the government. “Life” and “property” could be given similarly narrow readings. This has not, interpretatively, been remotely the case.
2. The analysis of whether something is a life, liberty, or property interest is the same for both procedural and substantive due process. This is why **Dewey** confused me by saying, “Sure, _Santosky_ says something about a fundamental liberty interest, but it’s really concerning itself with procedural due process.” Whether something is a liberty interest is a necessary part of whether procedural process is due.
Now. Once something has been characterized as a life, liberty, or property interest (“the Interest”), the difference between procedural and substantive due process is (to my view) as follows:
**Procedural due process** states that the government may not deprive someone of the Interest at issue without jumping through procedural hoops to do so. The more fundamental the Interest, the more stringent the nature of the procedural hoops – at its strictest, due process demands “fundamentally fair” procedures, a term that incorporates, among other things, “the opportunity to be heard at a meaningful time and in a meaningful manner,” Mathews v. Eldridge, 424 U.S. 319, 333 (1976), and the “opportunity to confront and cross-examine adverse witnesses.” Goldberg v. Kelly, 395 U.S. 254, 269 (1970), although the analysis of what procedures are fair “is flexible and calls for such procedural protections as the particular situation demands.” Eldridge, 424 U.S. at 334. If fundamentally fair procedure has been afforded an individual, the government may deprive that individual of a fundamental life, liberty, or property interest.
**Substantive due process** , by contrast, states that there are some life/liberty/property interests that are _so_ fundamental that no procedure, however fair, justifies their deprivation in certain circumstances. So where procedural due process says “the government can deprive me of Interest A if first provides me with fundamentally fair procedure,” substantive due process says, “the government cannot act broadly to deprive me of Interest A.” This is not to say that the government can’t _regulate_ and _limit_ Interest A – the liberty to contract still exists, even post-_Lochner_ and _West Coast Hotel_, but it’s never been the case that such a liberty prevents the government from criminalizing prostitution or drug trafficking or the sale of children.
As can be seen, the line between procedural and substantive due process, regarding deprivation of a recognized life, liberty, or property interest, can be altogether blurry.
Is that about right, guys? (I’m assuming that **Dewey** and **Bricker** will take issue with that last sentence there…)
---
### Author:  [@Gadarene](https://boards.straightdope.com/u/Gadarene)
#### Post date: [May 22, 2005, 9:22pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/230 "2005-05-22T21:22:40Z")
**Dewey:**
> [@](#):
>
> I think “fundamental liberty interest” is unfortunate word choice. What they’re really saying, or ought to be saying, is that the stakes in child custody cases are so high as to warrant a higher threshhold of mandatory procedural safeguards. Which is fine: due process demands more of capital cases than it does of traffic tickets, too. I have no problem with that line of reasoning – interpreting “due process” necessarily entails determining how much process is due under a given set of facts.
Yes, but the whole reason that a higher threshold of mandatory procedural safeguards would be necessary is because the care and control of your children qualifies as “liberty” under the Due Process Clauses. Due process is not required if something is not properly classified as life, liberty, or property. Do you agree with that?
> [@](#):
>
> By this I take it you’re referring to the “second as militia only, because individual ownership was so obvious” position. I agree it’s plausible, at least as a starting hypothesis, although it’s tough to work around the “of the people” language in the text. Certainly a pure originalist would cede the point if there is historical evidence that the authors intended only to be encapsulating rights related to militias. Textualists would have a harder time swallowing that notion, though.
Awesome. So textualists would agree (as **Bricker** has cautiously done, pending his own review of the cases) that _Hans_ and _Seminole Tribe_ were wrongly decided, as it’s tough to work around the specific mention of citizens of other states and citizens of foreign states in the text of the Eleventh Amendment, right? 🙂 And textualists would agree that the Slaughterhouse cases were wrongly decided, as it’s tough to work around the pretty damn clear language of the privileges and immunities clause, right? Or does this get us to what constitutes ‘common-sense context’? Would the argument be that a common-sense reading of the Eleventh Amendment and Article III, in conjunction, makes it clear that states retain sovereign immunity in federal court as against their own citizens (I’d argue the opposite), that a common-sense reading of the privileges and immunities clause makes it clear that it only protects such scant privileges/immunities as the federal government is empowered specifically to bestow upon its citizens (I’d argue the opposite), but that a common-sense reading of the Second Amendment views its first clause as pure surplusage?
> [@](#):
>
> Dred Scott cannot be a simple property rights case because if it were, Taney would have to grapple with the just compensation issue.
This simply isn’t true. The Takings Clause and the Due Process Clause are different animals – if property is not “taken for public use,” no just compensation is required, but process is still due.
> [@](#):
>
> Taney went out of his way to essentially try to craft a constitutional right to own slaves.
There is clearly no proscription in the Constitution against the ownership of slaves, and thus it’s entirely common-sensical to classify them as property for the purposes of due process analysis. (I absolutely agree with you that there were serious threshold jurisdictional issues, although I don’t think they _necessitated_ that Taney avoid ruling on the merits.)
---
### Author:  [@Gadarene](https://boards.straightdope.com/u/Gadarene)
#### Post date: [May 22, 2005, 9:29pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/231 "2005-05-22T21:29:38Z")
> [@](#):
>
> I’m with Justice Holmes, who so famously once said of the role of judges in interpreting the constitution: “I always say, as you know, that if my fellow citizens want to go to Hell I will help them. It’s my job.”
I’ve got a couple of issues with Holmes’s quote, particularly as regards countermajoritarianism and representation reinforcement, but I’ll just say what I said with the Ackerman example: I think that any interpretation of _Dred Scott_ that views it as an activist decision (and, more particularly, asserts that strict construction would have led to the opposite result) either a) denies any judicial role in overturning congressional statutes as unconstitutional, or b) is laboring under an implicit presumption that no decision founded on strict construction can be “bad,” and no decision founded on activism can be “good,” either in results or in process.
---
### Author:  [@Hamlet](https://boards.straightdope.com/u/Hamlet)
#### Post date: [May 22, 2005, 9:36pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/232 "2005-05-22T21:36:46Z")
> [@Gadarene](#):
>
> Two important points here:
>
> 1. There is virtually unanimous agreement that something need not be explicitly mentioned in the constitutional text in order to be classified as a life, liberty, or property interest. That is, the Constitution doesn’t say, “The following things shall be considered liberty interests…” It is necessarily left to the courts and the legislatures to so infer. “Liberty” could fairly easily be restricted to, literally, a person’s liberty – whether or not an individual is being bodily confined by the government. “Life” and “property” could be given similarly narrow readings. This has not, interpretatively, been remotely the case.
I don’t want to put words in anyone’s mouth, but, from other threads, I think it’s fair to say that there is not “virtually unanimous agreement” on this issue. **Shodan** , and I think to a lesser extent, **Dewey** have indicated that barring mention in the Constitution, or the individual state’s legislating it, there are no rights to protect. I may be wrong, so I’ll let them respond, but I think you may be premature in this arena.
---
### Author:  [@Gadarene](https://boards.straightdope.com/u/Gadarene)
#### Post date: [May 22, 2005, 9:39pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/233 "2005-05-22T21:39:53Z")
This is me expressing perfunctory shame at posting four times in a row. I noticed something in one of my previous posts that I wanted quickly to expand upon.
> [@](#):
>
> The first tricky bit here is figuring out whether something constitutes life, liberty, or property. Slaves are property, per _Dred Scott_; being able to raise your child your own way is a protected liberty, per _Santosky_; being able to enter into a contract with a consenting individual is also a protected liberty, as _Lochner_, for example, acknowledges.
I recognized that all of my examples above stemmed from cases in which the court itself determined whether something was a life, liberty, or property interest. I wanted to say that, in my view, Congress could constitutionally place an activity under the aegis of due process by identifying it as life, liberty, or property, as long as it could legitimately legislate in that area to begin with. I think Congress could legitimately state, “We find that X interstate commercial activity is a protected liberty interest for the purposes of due process,” and that the courts would be compelled to treat it as such. I think it’s much tougher to make the argument, however, that Congress could pass a law, somewhat like they tried to do in a different context with _Miranda_, invalidating the courts’ identification of something as an interest for which due process is required.
That is, when it comes to (intentionally) ambiguous portions of the constitutional text, I don’t think the courts should be the sole organ able legitimately to identify what is included within.
---
### Author:  [@Gadarene](https://boards.straightdope.com/u/Gadarene)
#### Post date: [May 22, 2005, 9:41pm UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/234 "2005-05-22T21:41:08Z")
**Hamlet:**
> [@](#):
>
> I don’t want to put words in anyone’s mouth, but, from other threads, I think it’s fair to say that there is not “virtually unanimous agreement” on this issue. Shodan, and I think to a lesser extent, Dewey have indicated that barring mention in the Constitution, or the individual state’s legislating it, there are no rights to protect. I may be wrong, so I’ll let them respond, but I think you may be premature in this arena.
In that case, I’d be interested to see how they define life, liberty, and property for the purposes of real-world analysis. 🙂
---
### Author:  [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)
#### Post date: [May 23, 2005, 12:03am UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/235 "2005-05-23T00:03:39Z")
> [@Hamlet](#):
>
> There was no “process of law” to even consider. The due process clause, I would imagine, would require a hearing. I’m pretty sure the forfeiture laws do require such process. If the legislature enacted a statute that stated if \_\_\_\_\_\_\_\_\_\_ enters our state, it is no longer considered the property of another, I’m pretty sure that would violate due process. They wouldn’t even have to consider “substantive due process”.
If Taney was trying to say that the process was provided was insufficient, then the approprite remedy is to remand the case back to lower courts in order to provide that process. But he went much further than that: he effectively said these laws are unconstitutional, full stop, and cannot be made so by tweaking procedural matters.
> [@Hamlet](#):
>
> And I’m still interested in how you, a strict constructionist, would have ruled in Dred Scott.
I would have ruled that the Constitution at the time was silent on the matter of slavery, and thus in the case of the federal territories, Congress was free to craft its own rules. Given the Missouri Compromise, not handing over Scott would be no more unconstitutional than not handing over the drugs the feds seize from a drug runner. Essentially, slaveowners wanted to keep their slaves, they would have to keep them in jurisdictions where slavery was legal.
---
### Author:  [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)
#### Post date: [May 23, 2005, 12:06am UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/236 "2005-05-23T00:06:34Z")
> [@Polycarp](#):
>
> Pardon my smart-assery here, but all I can hear in this answer, which does have some sense behind it, is that substantive due process is OK when it does what **you** want it to. Which was, I think, your complaint regarding it when it’s used regarding civil rights (good) but not in support of Lochnerian property rights (bad). Am I misinterpreting your position in seeing it founded in a variation on SDP?
I have no idea how you reached that conclusion, and thus no idea how to respond.
---
### Author:  [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)
#### Post date: [May 23, 2005, 12:14am UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/237 "2005-05-23T00:14:06Z")
> [@Scott Plaid](#):
>
> ::Old man voice::Are you posting while high on “the weed?”::Old man voice::
>
> We have been over this and over this, time and time again, in threads in which both you and I particapated in. You keep on claming “judges to craft rightS to, say, same-sex marriages.” However, saying it doesn’t make it true, instead it makes it an attempt at the “Big Lie” theory of truth. Not the same thing at all. You simply cannot post such a statement in a thread, have it defeated, then go on to post the same claim in another thread. Believe it or not, people actually read what you post in GD.
>
> “But wait,” you ask,“How is your statement not also an example of the “Big Lie” technique? After all, you keep on saying that when, you are repeating your claim that my statement isn’t true.”
>
> Well, it would be, except in past threads, you and Bricker, made the claim that the ruling of the Mass. judges were examples of Judges breaking laws, and had no real, legitimate claim to an actual point-for-point argument that it wasn’t, but instead a perfectley on point ruling of the State’s constitution. Instead, you simply hand waved away all the points made against you.
>
> [Cite.](http://boards.straightdope.com/sdmb/showthread.php?t=314828)
Let’s just say that I think you are grossly misrepresenting the course of that thread. If you think **Bricker** or I were hand-waving away arguments, well, that’s not the way I see it. And I stand behind the characterization of the opinion in question, and think my view of that opinion was adequately defended.
Here’s a clue for you: you are not the ultimate arbiter of victory in a debate. You do not get to decide when a point has been conclusively determined beyond any further discussion. Just because you are not persuaded by \*\*Bricker \*\*and I’s arguments does not mean those arguments are defeated in an objective sense.
However, Sparky, we’re in GD. If you want to accuse me of lying – or even perpetrating the “Big Lie” – take it to the Pit.
---
### Author:  [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)
#### Post date: [May 23, 2005, 12:29am UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/238 "2005-05-23T00:29:00Z")
> [@Gadarene](#):
>
> Yes, but the whole reason that a higher threshold of mandatory procedural safeguards would be necessary is because the care and control of your children qualifies as “liberty” under the Due Process Clauses. Due process is not required if something is not properly classified as life, liberty, or property. Do you agree with that?
Yes, sorta. I mean, life, liberty and property are pretty broad descriptors. I have a hard time thinking of anything worth ligitigating over that couldn’t be classed into one of those categories. I guess you need a label, and that’ll do – “takings of important shit without due process” doesn’t have quite the same ring to it – but what we’re really talking about in due process terms is “how important is the thing being fought over, and are the procedural safeguards consonant with its level of importance?”
So I suppose my objection is rhetorical. Say something’s a liberty interest. Then it becomes a fundamental liberty interest. Before you know it, you’ve got a fundamental right to whatever that thing is. But at least in the case of marriage, it is plainly not so: the states can stop dealing in marriage at any time. It is thus extremely misleading to say one has a “fundamental right to marriage,” at least in the state-recognition sense, because that right can be abrogated with the stroke of the legislative pen.
The due process clause is fundamentally about the right to be heard, and how big a soapbox you have to be given. I think all the rest is just sideshow.
---
### Author:  [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)
#### Post date: [May 23, 2005, 12:33am UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/239 "2005-05-23T00:33:30Z")
> [@Gadarene](#):
>
> I’ve got a couple of issues with Holmes’s quote, particularly as regards countermajoritarianism and representation reinforcement, but I’ll just say what I said with the Ackerman example: I think that any interpretation of _Dred Scott_ that views it as an activist decision (and, more particularly, asserts that strict construction would have led to the opposite result) either a) denies any judicial role in overturning congressional statutes as unconstitutional, or b) is laboring under an implicit presumption that no decision founded on strict construction can be “bad,” and no decision founded on activism can be “good,” either in results or in process.
Well, I disagree. As to (a), I think there are ample areas where the courts legitimately overturns things as unconstitutional. As to (b), I simply disagree. There are numerous areas where I support legislative solutions that are at odds with strict constructionist opinions giving the same result, including gay marriage.
---
### Author:  [@Gadarene](https://boards.straightdope.com/u/Gadarene)
#### Post date: [May 23, 2005, 3:36am UTC](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418/240 "2005-05-23T03:36:21Z")
**Dewey:**
> [@](#):
>
> I would have ruled that the Constitution at the time was silent on the matter of slavery, and thus in the case of the federal territories, Congress was free to craft its own rules.
1. In your opinion, did John Sandford have a property interest in Dred Scott? 2) In your opinion, was the then-Constitution silent on the right to own a piece of land?
> [@](#):
>
> Yes, sorta. I mean, life, liberty and property are pretty broad descriptors. I have a hard time thinking of anything worth ligitigating over that couldn’t be classed into one of those categories.
Let’s say my roommate has a car. Every week, my roommate will drive me, in that car, to the grocery store so I can do my shopping. Now let’s say that one day the city tows my roommate’s car – without even telling me about it first! That pisses me off. How’m I supposed to do my shopping now? Pist though I might be, have I been deprived of life, liberty, or property?
Or better yet: let’s say I’m saving to go to college. I’ve got my eye on the local community college, because it’s the cheapest available, and so I scrimp and cobble together enough for the first year’s tuition. And then – without even telling me about it first! – the state raises tuition across the board. That pisses me off. I have to put off college for a year to save more money! Pist though I might be, have I been deprived of life, liberty, or property?
Or better yet: let’s say I _loooooove_ going to the National Zoo. Most of all, I love the prairie dogs. Cute li’l prairie dogs. I’ve bought a season ticket just so I can go see them every day. I’m there so often people call me the prairie dog guy. And then one day – without even telling me about it first! – the Zoo eliminates its prairie dog exhibit and ships the buggers off to San Diego. That pisses me off. No more prairie dogs! Pist though I might be, have I been deprived of life, liberty, or property?
Or better yet: Oregon implements a statewide sales tax – without even telling me about it first!. Have I, a proud Oregonian, been deprived of life, liberty, or property?
> [@](#):
>
> I guess you need a label, and that’ll do – “takings of important shit without due process” doesn’t have quite the same ring to it – but what we’re really talking about in due process terms is “how important is the thing being fought over, and are the procedural safeguards consonant with its level of importance?”
You’re saying the Framers chose the phrase “life, liberty, and property” because it _sounded_ pretty? So how do you determine how important something is, if it’s not specifically mentioned in the constitutional text? And how do you figure out which things deserve procedural protection and which don’t? It’s not in the text.
> [@](#):
>
> So I suppose my objection is rhetorical. Say something’s a liberty interest. Then it becomes a fundamental liberty interest. Before you know it, you’ve got a fundamental right to whatever that thing is.
I would _love_ to see a cite for the Court designating something a liberty interest, and then later a fundamental liberty interest, and then later a fundamental right.
> [@](#):
>
> But at least in the case of marriage, it is plainly not so: the states can stop dealing in marriage at any time. It is thus extremely misleading to say one has a “fundamental right to marriage,” at least in the state-recognition sense, because that right can be abrogated with the stroke of the legislative pen.
I think I answered this in my response to your previous question. Forget about a right to marry, because that implies a positive state obligation. But there is a fundamental liberty interest – and, contrary to your apparent assertion, this is a term of art with a specific meaning – in choosing to be married. The state cannot abrogate _existing_ marriages without due process. Prospective legislation is a different story.
> [@](#):
>
> The due process clause is fundamentally about the right to be heard, and how big a soapbox you have to be given. I think all the rest is just sideshow.
Well…okay. But that doesn’t tell you anything about anything. What I must admit I’ve never heard the “the phrase ‘life, liberty, and property’ is surplusage” argument before, especially from a textualist. And I honestly think that your problem – as it’s now framed, anyway – is at least as much with the Due Process Clause itself, as it’s worded, as it is with the idea of substantive due process.
> [@](#):
>
> Well, I disagree. As to (a), I think there are ample areas where the courts legitimately overturns things as unconstitutional. As to (b), I simply disagree. There are numerous areas where I support legislative solutions that are at odds with strict constructionist opinions giving the same result, including gay marriage.
In my view, the only way in which strict constructionism even remotely impels an opposite result than occurred in _Dred Scott_ is if you conclude that owning slaves back then wasn’t a protected property interest. To thus conclude is, in my opinion, eminently ahistorical.
[Previous page](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418.md?page=11)
[Next page](https://boards.straightdope.com/t/limits-on-the-judiciary-and-the-n-option-play/304418.md?page=13)