From: thf2@ellis.uchicago.edu (Ted Frank)
Subject: Federalism and Due Process
Reply-To: thf2@midway.uchicago.edu
Organization: University of Chicago Computing Organizations
Date: Wed, 23 Dec 1992 17:23:30 GMT

In article <1992Dec23.071640.4656@mksol.dseg.ti.com> noonan@mksol.dseg.ti.com (Michael P Noonan) writes:
>[On going debate concerning the states, the constitution and abortion....]
>
>In article <1992Dec23.052521.20134@netcom.com>, ray@netcom.com (Ray Fischer) writes:
>[Ray is writing in response to my query as to why the federal government
> should be involved in the abortion issue.]
>|> >|> Why should _any_ government have jurisdiction here?  It is a
>|> >|> fundamental principle of law that a person's property may not be taken
>|> >|> or used without either that person's consent or due process of law.
>|> >
>|> >I think that this is a state issue too.  The states all have laws
>|> >regarding property possession.  Would you argue that these laws are
>|> >not appropriate, or that the states should not have jurisdiction
>|> >concerning, say, auto-theft?  If abortion really is a property issue,
>|> >then it would seem to me that it is an issue tailor made for the states.
>|> 
>|> The US constitution, a federal document, states that no person may be
>|> deprived of life, liberty, or property without due process of the law.
>
>I know I don't have a copy with me, but does anyone out there know where
>the Constitution says this?  

Fifth Amendment.  The Fourteenth Amendment then extended federal protection
to the states.

It seems like you two are talk past each other -- one is referring to
the Fifth Amendment prohibiting the state and federal government from
depriving individuals of life, liberty, or property without due process
(or compensation in the case of property--the Takings clause), and the 
other is referring to laws regarding property possession.

I'll leave it to the two of you to decide which one is spouting
irrelevancies.

>If this is true, why do we have state laws protecting life and property?  

Some predate the Fourteenth Amendment.  Others are used to grant state
citizens greater civil liberty protections than the federal constitution
does.  New Jersey is a notable example.

Or, if you're just referring to anti-theft laws, the Fifth Amendment
doesn't implicate those at all.

>Would you consider these laws to be
>redundant and therefore unneeded?  I don't recall any "due process"
>being outlined in the Constitution to handle murder and stolen property
>cases.  

Fifth Amendment, in terms of the trial process for those accused of these
crimes.

For the creation of the law of these cases, the Fifth Amendment isn't
particularly implicated.

>You seem to imply here that the states should not meddle in any
>issue involving life, liberty or property.  Do you really believe this?

They may, but they just have to comply with due process requirements.

>And do you really think that the Constitution protects these things
>sufficiently without any state laws?  It was always my understanding that
>the method with which the Constitution handles these things is by leaving
>it up to the states.  Perhaps out friends in alt.politics.usa.constitution
>can help us out.
>
>Was the "due process" you mentioned that is supposedly in the Constitution
>used in the RvW decision?

The ability of the federal government to strike down unconstitutional
state laws has been uncontroversial for 200 years.  The Fourteenth
Amendment extended federal protection of certain civil liberties to
state residents.
-- 
ted frank                     | thf2@ellis.uchicago.edu 
standard disclaimers          | void where prohibited
the university of chicago law school, chicago, illinois 60637
Newsgroups: talk.abortion