Now, THAT would have been activist. The statute, IIRC, provided absolutely no process to challenge the taking of property, and you think the court should have remanded and let the lower court set up an entire system? I don’t think so.
Here’s what he said:
I’m not sure how much clearer he could have been about this being a property case. And I’m not too sure how he could have been more clear that he was a strict constructionist.
As long as those rules don’t violate the Constitution, of course.
Were there forfeiture cases before Dred Scott? What did they have to say about the taking of property without any process? And your drug analogy is incorrect, because drugs are contraband in all 50 states and, thus, there are no real property rights and they are seizable. You analogy is also incorrect because it’s not just a seizure issue, it’s a takings issue. It is a complete divestment of rights in property without due process, not seizure for illegality in the jurisdiction. You can be damn sure that any strict constructionist would have to find a violation of due process if the legislation of one state divested all property rights in property brought into the state. And that’s exactly what Dred Scott is: strict constructionist.
Not quite a takings issue. As I say earlier, something must be taken “for public use” in order for it to be a takings. This is a deprivation of property.
But I agree wholeheartedly with the rest of your post.
Yes, no. However, he did not have the right to take that particular piece of property into a free state and expect it to remain his property, just as you have no reason to expect to be able to keep your booze if you are caught delivering alchohol into a dry county.
Well, yeah, actually. Like I said, anything worth litigating over I can probably make fit into one of those categories.
No, but neither is the notion that libel is not protected by the first amendment. Strict constructionists are not about making judicial automatons.
Oh, poppycock. If the state decided it was going to cease recognizing all marriages tomorrow, do you really think there would be a constitutional argument to prevent said derecognition of existing marriages only? If, say, the state ceased doing stuff like allowing couples to file their taxes jointly, that would be unconstitutional with respect to already-marrieds?
As I noted, the state can’t prevent people from calling themselves husband and wife – that’s a first amendment isssue – but it isn’t required to confer benefits on those choosing that union. And from the state’s perspective, it’s those benefits that we’re really talking about.
Doesn’t change a thing about the Dred Scott decision being a strict constructionist decision or that the Dred Scott decision was not “substantive due process”.
Here in Chicago, there are a few wards that are dry wards, no alcohol allowed for sale . Are you arguing that the local Bud distributer who sends a truck through that part of town can lose all of his alcohol, without even the hint of due process? I fear you are horribly mistaken.
The fact remains that the statute Dred Scott struck down denied owners all of their rights in “property.” A strict constructionist reading of the Constitution only allows for one outcome, that the statute violates due process.
So it’s not that you have a problem with the notion that a slave was legitimately property for the purposes of the Due Process Clause, it’s that you think Sandford was given due process because he should have known that crossing over the state line nullified his property interest? That’s a different argument – it’s not necessarily a ridiculous argument, but it has little to do with activism vs. strict constructionism or what the words life, liberty, and property actually mean.
Me:
Dewey:
Despite the fact that I gave you four examples off the top of my head in which someone suffers a legitimate deprivation at the hands of the government without any process and, in my view, has no due process claim? :dubious:
Me:
Dewey:
I’m not claiming that they are. Above, you expressed severe reservations about the care, control, and management of one’s child being termed a “fundamental liberty interest.” My point is that procedural due process necessitates looking outside the text to determine what the really important shit is (a category, notwithstanding your own broad reading, that the Framers helpfully narrowed somewhat into life, liberty, and property) as much as substantive due process does. The difference between PDP and SDP isn’t in the identification of extra-textual liberties and freedoms, it’s in the nature of the judicial remedy to secure those liberties and freedoms from legislative trespass. That is to say, if Lochner and Griswold and Roe and the rest of the SDP decisions had never been handed down, the care, control, and management of one’s child would still be a fundamental liberty interest for the purposes of due process.
As a judge who is a strict constructionist but not an automaton, how do you classify something as really important shit deserving of due process without running the risk of doing what you claim to abhor and recognizing a right out of whole cloth? Keeping in mind, as you helpfully point out, that no rights are absolute – not the right to free speech, not the right to bear arms, not the right to raise your family. Identify for me a liberty interest that you believe to be legitimately protected by the Due Process Clause.
Well…yes. Yes that there would be a constitutional argument; I couldn’t state definitively how it would turn out. Pop into the rights/privileges thread and take a look at some of the caselaw Gfactor has quoted – the Supreme Court has held consistently that there is a difference between the government denying someone the ability to receive benefits in the future and the government revoking benefits that someone is already receiving. The latter generally requires due process; the former almost universally does not.
If I’m understanding you correctly, you said that the two sentences below are functionally and interpretatively equivalent:
No individual shall be deprived of life, liberty, or property without due process of law.
No individual shall be deprived of really important shit without due process of law.
To the extent that you’re saying that you don’t need to deal with the words “life, liberty, or property” to correctly apply the Due Process Clause, you’re calling them surplusage. Aren’t you?
I take no position on the main issue you two are debating. But, although **Hamlet ** is correct that there are areas in Chicago where you can’t buy booze(although I’m not aware of entire wards where the sale of alchohol is prohibited, there are certainly numerous dry precincts), there is no Chicago area where possession of alcohol is prohibited. Accordingly, the truck driver is in no danger.
It’s an argument from analogy. I’m saying that a person had no more right to continue possessing a slave brought into a free territory back then than a person bringing a controlled substance into a jurisdiction that bans it. Strict construction would no more have the former offend the constitution than the latter.
Your examples were more about standing than due process.
I have no problem with looking outside of the text to determine the scope of “life, liberty, and property” (or, if you prefer, “important shit”), so long as what you’re looking for is tied somehow to what the drafters were trying to accomplish. Different schools of strict constructionism will approach the “how” to that question differently: textualists will say just the words on the page, plus perhaps dictionaries and legal treatises of the day that explicate the common undestanding of that term of art at the time; Bork-style originalists would expand that to include things like legislative history.
I admit my “important shit” sidetrack has distracted more than it has illuminated. Like I said, it was a rhetorical objection. I think there is something of a problem when the court denotes something as a “fundamental liberty interest” in that whatever they’re so labeled becomes a fundamental right in the common vernacular, if not in the law. And then you have to spend a lot of time educating yahoos who point to that language as meaning something it doesn’t. I’d just as soon the court say something is “important shit” – or, more politely and more neutrally, an "interest subject to due process requirements – than unintentionally give their imprimatur to common notions of extratextual constitutional “rights.”
“Surplusage” means the words aren’t necessary, which isn’t true – you need a label there, if anything, for the sentence to make sense. And I don’t think they’re unnecessary as much as I think they are very broad, so broad, in fact, that “really important shit” conveys much the same message.
As I understand it, slavery was illegal in the free territories, though I welcome correction on the point if I’m wrong. I’m pretty sure the Missouri Compromise, for example, made slavery illegal in the territories north of the southern border of Missouri.
Your analogy is flawed in two major ways. One, slaves weren’t contraband. Two, for your latest analogy to be correct, I would have to have driven through a dry county, back to my home in a wet county, and the dry county would have to come and take my alcohol from where it is perfectly legal to possess it. And to do so without providing me any process at all to challenge it. How in heavens name is that strict constructionist?
Taney’s opinion spends two paragraphs of dicta on the issue of due process, without once creating a new right. The other 50+pages of his opinion is a manifesto of strict constructionism. Taking two mentions of due process, in dicta, out of a gigantic opinion and pretending the entire decision was substantive due process is ridiculous.
Dred Scott did not involve substantive due process, and it was originalism at it’s worse. Attempts by Bork and Scalia to somehow rewrite history notwithstanding. Dred Scott was decided under the property clause. A vast majority of the opinion was pure originalism, Taney even said so, and two references in dicta to the due process clause doesn’t change that. The actual holding of Dred Scott didn’t even involve the due process clause, but rather the strict constructionist based arguments that slaves are property and that slaves have no right to sue.
Finally, as a minor hijack, I’m intrigued that strict constructionism would require one state to recognize the complete divestment in property rights of another state. Does that hold true if, rather than applied to property, it applies to same sex marriage? Does strict constructionism require that Alabama recognize a marriage from Massachusettes?
What? Dewey. You claimed that “anything worth litigating over” could be classified as life, liberty, or property. If an individual suffers a deprivation at the hands of the government without being afforded process, the individual is only entitled to sue on due process grounds if the deprivation was of life, liberty, or property. I gave you four examples in which an individual was deprived by the government, and asked you whether you could fit the deprivation into one of the three categories. If you can, the individual has a due process claim. To the extent that having a due process claim confers standing where it would not otherwise exist, then yes, those examples were about standing. But they were fundamentally about whether process was due the individual who had suffered the deprivation, and I’m really surprised you’re arguing (or not arguing) this point in this way.
If you want something more concrete, take a look at any of the Court’s numerous public assistance or public employment cases, e.g. Board of Regents v. Roth, 408 U.S. 564 (1972) (no process due prior to dismissal to instructor on one-year contract), and Perry v. Sindermann, 408 U.S. 593 (1972) (process due prior to dismissal to professor with “de facto” tenure). These are procedural due process cases in which the Court is saying that loss of employment or benefits or what have you constitute really important shit – shit for which process is due – in some circumstances but not in others.
And I still say that to the extent you have a problem with judicially-created (extra-legislative, extra-textual) rights, your beef is with the breadth of due process doctrine in general, and not just the substantive version thereof. Judges need a principled, consistent test for which deprivations process is due – “life, liberty, or property” comes closer to that than your “really important shit,” and the Courts have done their best to winnow it down even further from there.
So: do you think the care, custody, and management of one’s child is an interest for which process is due before governmental deprivation? If so, how do you arrive at that conclusion on something other than an ad hoc basis? (I feel like I’m arguing for a more restrictive vision of the judicial role in constitutional interpretation than you are, which is weird to say the least.)
…And some – like Bricker and Random, when talking about state sovereignty – would expand that to other inferences that may be directly drawn from the context of the day. To the extent that legal treatises or legislative history or the self-evidently shared assumptions of the Framers take us beyond the text, it’s the judge’s role to sift good, relevant, and helpful information from bad, irrelevant, and unhelpful information. And, all in all, they’re damn good at it. So what’s the problem?
As I ask before: As a judge who is a strict constructionist but not an automaton, how do you classify something as really important shit deserving of due process without running the risk of doing what you claim to abhor and recognizing a right out of whole cloth?
(I take it you are premising the distinction on goods vs. a human. But if we’re starting with a premise that slaves are property, why would you not class them as goods?)
This is a decent factual distinction, but it isn’t terribly relevant based on what Dred Scott actually held. Taney didn’t say that a slave could not be freed if he went into a free territory and then returned to a slave state before bringing suit; rather, he said Congress could not ban slavery in the territories at all. That is, he essentially said that even if Dred Scott had sued for his freedom while he was living north of the Missouri Compromise line, he would not be able to attain his freedom.
Are you suggesting a full hijack into the full faith & credit clause? I’ve discussed that before, if you want to search for older threads. Gadarene:
Re standing – I always understood this as being a cases and controversy area rather than a due process area, though as I’m not a litigator I admit I haven’t given it much thought since law school.
Well, I think you make the effort to tie that to some form of framer’s intent, which is really to my mind what this is all about. Regardless of the method chosen, that should be the goal. The more egregious substantive due process cases, to my mind, either ignore completely or give only lip service to tying their view to the goals of those who drafted what they’re supposedly interpreting.
I also think the notion of procedural due process is itself limiting; after all, it doesn’t forbid the government from doing anything – it just demands fair procedures before it does it. Contra substantive due process, which actually cuts off policy choices from the government.
Once again, your confusing the actual holding and the dicta. The holding was that Dred Scott couldn’t sue for his freedom. The holding was that Dred Scott was property. To reach those two issues, Taney used strict constructionism. For 50+pages. Of a long…tedious… opinion. He then spends 2 paragraphs mentioning due process and never once created a right to hold slaves. As repellant as the idea is, Dred Scott was, once again, not substantive due process.
I don’t need a whole hijack, just an answer to my question. Does strict constructionism require the recognition of same sex marriage just as it would require the recognition of a law outlawing slavery.
This continues to be completely nonresponsive to the due process aspects of the examples I gave. I’ve explained a couple of times why the Due Process Clauses matter with regard to the ability of the individuals in my examples to bring suit, and was testing your proposition that it’s easy to classify anything that is litigable as life, liberty, or property. Could you at least take a shot at answering me? It’s actually relevant to whether judges must necessarily craft new “rights” in the guise of due process.
More later, but I wanted to get that in while you were (hopefully) still at the computer.
Minor quibble. Goldberg v. Kelly and its progeny make clear that a hearing is required *before * some benefits are terminated.
In Goldberg, Brennan acknowledged that, “*t is true, of course, that some governmental benefits may be administratively terminated without affording the recipient a pre-termination evidentiary hearing. [n10] [p264] But we agree with the District Court that, when welfare is discontinued, only a pre-termination evidentiary hearing provides the recipient with procedural due process.” (Emphasis added).
The Supreme Court has ducked the issue of whether an applicant who is denied benefits has procedural due process rights or not.
It’s actually relevant to whether judges must necessarily craft new “rights” in the guise of due process.