Newsgroups: bit.listserv.politics
Date:         Tue, 8 Sep 1992 11:07:40 EDT
From:         Jamie <PL436000@BROWNVM.BITNET>
Subject:      Re: Due Process interpretation

>From:         JCOCURUL@DREW.BITNET

>> True. I should have made clear: I do think that the "incorporation
>> doctrine" is correct, of course. That is, the 14th amendment does
>> make the states responsible to the Bill of Rights.
>>
>how?  If you reject substantive due process, that leaves us with the
>"privileges and immunities" clause which the Supreme Court arbitarily
>rejected for it was limited to protection of certain national rights
>such as voting in the Slaughter House Cases.  Various justices in
>passing took the tack of using this clause to incorporate the
>fourteenth amendment, and it's an interesting idea (Article IV speaks
>of a similar right and early jurists suggested such an
>interpretation).

Right. I'm a big fan of the privileges and immunities clause, and I
think it's a shame that it has been effectively written out.

>> First, don't you think that it is odd to interpret a clause that
>> obviously talks about PROCEDURE so that it turns out to be about
>> SUBSTANCE?
>
>I did some research about "due process" to check up on my
>interpretation.  It seems that "due process of law" from quite early
>had some idea of substantive due process in it, but in England
>parliamentary supremacy (the juducial branch can't interpret laws
>different than the legislature there) nipped that in the bud.  But, in
>this country, the right of the courts to interpret law fuller allowed
>it to develop the substantive part of due process.  Such an
>interpretation of the 14th came about pretty early, not just to expand
>the power of corporations.  The idea however was the the _states_
>couldn't break their own "ordered liberty", which was not as broad as
>the federal gov't by a long shot.  The idea that the states had to
>uphold national standards was rejected 5-4 (largely for Reconstuction
>was on the way out as was the idea of expanded federal power) in the
>Slaughter House Cases and didn't come back to the 1920s with cases
>pertaining to the first amendment.

Good, but I don't see how any of this answers my question.

The phrase on the face of it doesn't say of any particular rights
that a state may not abridge them, EXCEPT for procedural rights.
It doesn't, on the face of it, say that a state may not deprive a
person of the right of free speech. It does seem to say that if a state
wants to deprive people of that right, it must use "due process."


>> Second, I take it that you believe that the due process clause actually
>> protects a certain (unstated) list of liberties. What's on the list?
>> How do you determine what is on the list?
>
>if we used the ninth amendment (after somehow applying them to the
>states), we have the same problem, don't we?

Yes, we do.
I guess my point was this. If you don't mind plumbing around in the
well of the ninth amendment for unenumerated rights, then you don't
need the due process clause. If you do have some objection to using
the ninth to find unenumerated rights, then why wouldn't the same
objection apply to the hunt initiated by the due process clause?

Either way, the due process clause is otiose. And at least the
ninth amendment approach has the virtue that the ninth obviously,
on the face of it, suggests that there are some rights reserved
by the people that aren't explicitly listed. Not so for the 14th.

>   Coming back to the question of where we get the liberties to protect,
>they can usually be dealt easily by using the liberties enumerated in
>the Constitution.   Let's take homosexual marriage.  The 4th amendment
>protects the privacy of the home -- as was argued in Bowers v.
>Hardwick -- so whatever they want to do there is private as long as
>there isn't a compelling reason to ban it.

Ok, personally, I think that's fine. But now I don't see what work
the 14th is doing in the argument.

>               The 14th deals with equality, homosexuals should be
>treated equally as heterosexuals.  The first amendment deals with
>religion; laws against homosexuals can't be strictly for religious
>reasons.

Yep. Agree with both of these. But I don't see the need for the
due process clause.


>the 14th amendment applies to state equal protection, not federal, so
>something else is needed for that.

Ah. Good point, ok.

>still at issue is an act as well as a class of individuals.  the way
>many attempt to protect homosexual rights is to show that their
>actions are protected by the same liberties as we have (see my
>discussion above).  The idea that we have a time honored liberty to
>have a intimate relationship with others is the "liberty" at issue
>here, and I think it is more helpful to look at that than equal
>protection, which also comes into the picture.  It has both practical
>and theorical value to it to use "liberty" over "equal protection" in
>my view.

I see your point. I would rather have a specific liberty right than
a mere equal protection right. But I don't see that the liberty right
is protected by the Constitution, unless the privacy right and the
first amendment "non-establishment" right can do the trick.

Jamie
Comments: Gated by NETNEWS@AUVM.AMERICAN.EDU