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Date:         Tue, 8 Sep 1992 00:10:00 EST
From:         JCOCURUL@DREW.BITNET
Subject:      Re: Due Process interpretation

In article <tfilt318039@drew.edu>, Jamie <PL436000@BROWNVM.BITNET> writes:
>>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, 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.

the ninth amendment doesn't apply to the states without the 14th so
we're back to how incorporation takes places.  I presume that leaves
us back to the "privileges or immunities" clause.

> 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.

> 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?

> 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?

the due process clause applies the liberties to the states as the due
process clause of the fifth amendment applies it to the federal gov't.
The fifth amendment due process clause according to one source was an
extra for the clause was held in high esteem, so was put in even with
its rights protected elsewhere.  This interpretation was rejected by
other sources.
   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.  The first amendment deals
with assembly, marriage is a type of union that can be see as a
intimate organization or group so protected (Justice Douglas used such
an 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.  All of these are "liberties" which should apply to the
states via the 14th amendment -- I see the due process clause as a
reasonable way to do this, but I'll take the "privileges or
immuntities" clause  too if you want.  And for federal action, the
ninth, if you so desire.

[random thoughts apparently too random to be clearly understood
deleted]

>>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.

the 14th amendment applies to state equal protection, not federal, so
something else is needed for that.  I was a bit hasty denouncing the
ninth amendment, but I will say it seems too flimsy in practice in the
view of most courts -- that's what I really meant.

> 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.

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.
>
> 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
>
I don't doubt you have a wide sense of what the ninth amendment and
equal protection will protect, but I think there is an easier way to
do it in most cases.  Various situations just made looking to the 14th
-- which is more extact as to what is at issue ("life, liberty,
property...equality") -- the way the court handled it, and I think it
is a good way to do things.  I see however why you differ, and see
your point.

        -Joe
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