Time: Thu Oct 16 02:21:44 1997
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Date: Thu, 16 Oct 1997 02:18:30 -0700
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From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: The Invention of "Substantive" Due Process (fwd)
<snip>
>
>The Invention of "Substantive" Due Process
>By Rachel Alexander
>Arizona Daily Wildcat October 8, 1997
>
>
>Certain provisions in the U.S. Constitution have received more validity
>from the courts than others, including ones which have a rather vague
>connection to the actual wording of the Constitution. One provision that
>has been used extensively to support "constitutional" decisions, which
>is taught to law school students as the defining constitutional issue of
>their second Constitutional Law class, is the due process clause of the
>Fourteenth Amendment. The relevant portion of this clause says "No State
>shall make or enforce any law which shall - deprive any person of life,
>liberty or property without due process of law." (The Fifth Amendment
>provides this same protection from the federal government.) Clearly,
>this is a procedural clause, meaning that without a fair trial or
>investigation under the law, no person shall be deprived of their life,
>liberty or property.
>
>However, beginning with Dred Scott v. Sandford in 1857, the Supreme
>Court expanded this meaning to cover something they called "substantive"
>due process. This meant that any protection not listed in the
>Constitution, which they wished a person to have, should be covered by
>this clause. So, in Dred Scott, Justice Taney for the Supreme Court held
>that a slave taken into free territory could not become free, because
>the slave-owner's property rights would be jeopardized.
>
>It is difficult to see how this second meaning of due process applies,
>since "process" has nothing to do with "substance." Unfortunately, this
>expansive meaning of due process caught on and opened the door for a
>whole Pandora's box of "constitutional" interpretations of all sorts.
>Furthermore, it ignored the obvious Ninth Amendment, which already
>provided that "The enumeration in the Constitution of certain rights
>shall not be construed to deny or disparage others retained by the
>people." Perhaps the reason this important amendment has been ignored is
>because our judges have forgotten that the Bill of Rights is not a
>complete list of the rights we have. It is only a list of some of the
>rights which the federal government absolutely cannot infringe upon. We
>still are endowed with rights as individuals.
>
>As a result of this forgetfulness, the courts felt it necessary to use
>this new "substantive" due process clause to "incorporate" the Bill of
>Rights. This meant they were going to apply the first 10 Amendments to
>the States, since the Bill of Rights only applied to the federal
>government. Again, this application was unnecessary since we are already
>endowed with natural rights, and most state constitutions have many more
>rights listed than our federal Constitution does, so there are no lack
>of protections there. Furthermore, the courts have selectively applied
>this "incorporation," only applying the Amendments they prefer. One
>right which has been purposely excluded by the courts is the Second
>Amendment, although for most citizens, especially Arizonans, their state
>constitutions protect this right to bear arms, and much more coherently.
>
>The Supreme Court used this expansive reading of the due process clause
>to strike down state laws they did not like, but which were not
>mentioned in the Constitution. Particularly troubling are areas in which
>the people, through Congress, have decided, yet the court steps in
>through this clause and strikes down their decisions. When you have a
>right which is trampled by the state or federal government, you can
>either appeal to your legislature or the courts. Instead of staying out
>of divisive situations in which the rights are not clear (e.g. one
>person claims they have a right, but this right may infringe on
>another's), the courts have decided to jump in and decide some of these
>highly contentious, moral issues for us.
>
>One of the most unfortunate decisions based on this judicial activism
>was Roe v. Wade. Here, the Supreme Court held that a woman had a "right
>to privacy," so that abortion could then be legalized, using the
>"substantive" due process clause of the Fourteenth Amendment to
>"incorporate" the First, Fourth, Fifth and Ninth Amendments. Since these
>Amendments mention nothing of a "right to privacy," Justice Blackmun,
>writing for the majority, cited the "penumbras" of the Bill of Rights as
>justifying this "right." In other words, since we "feel" this right
>should be in there, we will pretend it is in there.
>
>What is wrong with this approach is that it undermines the will of the
>people as represented by the 48 state legislatures which passed these
>laws against abortion. Secondly, since the courts began using their
>"substantive" due process interpretation to protect rights, they backed
>themselves into a corner by protecting only the rights delineated in the
>Constitution. Using this narrow interpretation of "rights," the courts
>have usurped the power of Congress, which should pass an Amendment
>making a "right to privacy including legalizing abortions" if the people
>wanted it.
>
>The real solution would have been to end the legacy of Dred Scott and
>its "substantive" due process, and allow the legislatures to decide
>controversial issues where rights are not clear. If there is determined
>to be a non-constitutional right at issue, then the courts may step in,
>solely through the Ninth Amendment, and protect it. Associating the
>controversial act of "abortion" with a "right to privacy" had no basis
>in the Constitution, and hurt the credibility of protecting a real
>"right to privacy." Legalized abortion may be considered a "right" for a
>portion of the population, but for another significant portion it denies
>a right. The Fourteenth Amendment protects "life, liberty or property."
>How ironic that such an Amendment should be used to deny life.
>
>
>To join Bork, a conservative law discussion list, send e-mail to
>listproc@u.washington.edu, and in the body of the e-mail, type subscribe
>bork your e-mail address your name.
>
<snip>
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