Newsgroups: bit.listserv.politics
Date:         Mon, 7 Sep 1992 18:30:53 EDT
From:         Jamie <PL436000@BROWNVM.BITNET>
Subject:      Re: 14th amendment jurisprudence

>From:         JCOCURUL@DREW.BITNET

>you aren't just with the conservatives in this matter, you are with a
>small section of them!  Ever since the 1880s (14th came in 1868),
>"liberty" and thus due process was seen as more than a procedural
>right, but meaning the law had to pass some base minimum of what
>"liberty" meant.

Well, that's a bit misleading. It has long been seen by SOME as
encompassing non-procedural rights, but the substantive reading
has also long been rejected by others.

>                                                      Without this
>interpretation, the Bill of Rights (to the most part, shy a few things)
>wouldn't apply to the states.

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.

>Griswold v. Connecticut was largely
>seen as a "liberty" right (only three justices took the ninth amendment
>stand and this idea didn't last that long) with Justice Harlan (a
>conservative) explaining it nicely in his dissent of Poe v. Ullman.

Right, historically. But I think the majority in Griswold gave a bad
argument. The ninth amendment tactic was the right one, I think, and
it is too bad that it didn't last.

>    What do you think such liberty rights such as contraception (and
>even free speech in NJ) comes from?  The ninth amendment?  Even Chief
>Justice Rehnquist (who incidently writes good books) supports due
>process liberty interests, just in a much more limited fashion than
>some others.  Your not so usual rejection of such well accepted law
>surely does warrant a discussion here or by e-mail.

Ok.

Well, let me see if I can ask a few questions to show what I'm worried
about.

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? If the clause means that people shouldn't be deprived of
certain liberties, no matter how scrupulously states follow procedures,
then why doesn't it say so? (This is what I was trying to get at
by pointing out that "procedural due process" is redundant, and
"substantive due process" is an oxymoron.)

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? And if the list is to be
found somewhere in the rest of the Constitution, either explicit
or tacit, then why do we need to go to the due process clause to
appeal to those liberties?

>> I think that if a state wanted to make all marriage illegal, there
>> would be scant constitutional grounds for striking down the law.
>> Shocking, but true.
>
>I truly doubt this.  Way back in the 1820s, when reading the federal
>due process clause, a justice included many liberty rights not in the
>constituion -- your due process analysis seem very suspect.  Even
>without it, the "privileges and immunities" clause of the 14th alone
>would seem to protect such basic liberties as marriage even if you
>scrape the due process clause of its accepted function.  Then there is
>the ninth amendment, which protects unenumerated rights.

Unfortunately, I don't exactly understand what Joe is saying in this
paragraph. But I do want to clarify: I wasn't making a prediction about
what the Supreme Court would do in various circumstances. I was telling
you what I think the Constitution actually says.

> But if the state wants to make, say, interracial
>> marriage illegal, no dice. Why? Because that would violate equal
>> protection. Same for recognizing only heterosexual marriage.
>
>equal protection won't protect my right to free speech;

No, it won't. Fortunately, we have other parts of the Constitution
to appeal to.

>I really see
>the ninth amendment as somewhat flimsy in protecting liberty interests,
>and without due process, the federal gov't wouldn't have to have the
>equal protection of laws!

Again, I don't understand.
Equal protection, I think, is the really important bit in the 14th
amendment. I don't think the ninth amendment is flimsy at all. Just
the opposite. If anything, it is too, er, stiff.

>Anti-sodomy laws apply to both sexual preferances and equal protection
>wouldn't cover the liberty of the act itself.

They don't really "apply" to both sexual preferences, as you well know.
They have a discriminatory effect. So, the state has to show a compelling
interest for laws with that effect to stand.

>I truly happy your interpretation isn't followed and hasn't been for a
>long if ever completely.

Well, in a way I am too!
But I think the question of what the Constitution says is one thing,
and what state governments should do is another. I think the Constitution
allows state governments to do many things that they shouldn't do.

Further, I have a much more liberal (in more than one sense of "liberal")
interpretation of both equal protection and the ninth amendment than
does the mainstream. So maybe my interpretation would protect a lot
more rights than you think it would.

Jamie
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