It has been posited before here on UA, by LMD I believe, that Substantive Due Process (SDP - not the socialist democratic party) is, to put it politely, a load of shit. Now, I do not hold this position, and I would like a lively little debate on the subject, hopefully with both LMD and dear Joe contributing.
First, some ground rules: Let's not make this a "Roe sucks" v. "Roe rocks" party. We could of course degenerate to fighting over Roe, but that would be far less stimulating than discussing SDP in a greater context. (Here by the way, is my potshot at Joe: Overturning Roe does more harm than good, even when one takes the pro-life position, perhaps especially when one takes the pro-life position, ok, that's it for Roe, sorry)
Ok, I guess that was really only one ground rule. Now, onto the substance! Huzzah!
Why SDP?
SDP was originally necessary, at least in part, because of the Slaughterhouse Cases which, when it boils down to it, wrote the priviliges and immunities clause of the fourteenth amendment out of the constitution. If you want to talk about a godawful decision that should have been overturned decades ago, don't talk about Roe, talk about the Slaughterhouse Cases (hell, should have been overturned a century+ ago). Because there were no new rights (say, no new priviliges and immunities) in the P&I clause, the Court, instead of overturning the Slaughterhouse Cases, turned to the next clause in the fourteenth amendment, the Due Process clause.
"nor shall any State deprive any person of life, liberty, or property, without due process of law"
This little guy, along with it's brother the Equal Protection clause, have been mighty useful. I won't get into Incorporation here, but that is one huge effect of the Due Process clause, the other is procedural due process, which I also won't get into here, the last, and most controversial is Substantive Due Process, which had to be resorted to, essentially because of the damned Slaughterhouse Cases.
So what is SDP?
There is "old" SDP and there is "new" SDP. Both share the same basic framework. And contrary to common belief, both currently coexist. (i.e. "old" is not dead, just mutated).
Old SDP
So back at the turn of the 20th century, there was this debate between those who believed in social darwinism and as free a market as possible, and those who were concerned for social welfare. The Court at the time was full of Social darwinist folks. They really despised all these damn "minimum wage" and "overtime" and other really horrible and stupid laws of that vein. So what they did, was read into the word liberty, a right of "freedom of contract" (FoK). Now, this right could only be impeded by a state if the state had 1) a legitimate purpose in mind for the statute in question, and 2) the statute had a substantial relation to that purpose. (think of it kind of like, there had to be a good end, and the means had to fit that end - only, think of most ends as illegitimate, especially when interfering with economic freedom, and when there is a legitimate end, think of most statutes as really not related to that end. if you got that down, you can call yourself J. Peckham!) Ok. Now, some silly little depression comes along, and along with it, this big bad evil prick FDR. FDR is trying to, god forbid, help out the peasants! Now, each attempt that he makes in doing so is shot down by the Court, which uses one of a couple devices, one of the most prominent being SDP - The Justices just really F_______ hated anything that impeded on the free market. Anyway, long story short, J. Roberts (no relation to the current C.J.) switched over to the dissenters in West Coast Hotel, and SDP was never the same.
After West Coast Hotel and the SDP cases that followed, the rule changed. Now, when there was a right being impeded upon by a statute, the statute merely had to have a rational relation to the legitimate purpose. Basically, by changing one word (and the mindset and makeup of the Court), the Court turned the test from one of strict scrutiny, striking down almost every statute that came before it in a SDP challenge (notable and interesting exception: Euclid), into a test that allowed pretty much every statute to stand. This is the "death" of old SDP. While not overturned, Lochner and old SDP have had since 1937 the opposite effect than they did pre-1937.
New SDP
"New" SDP really is born in Roe. The previous statement is highly misleading. It was conceived in Griswold, it is highly analogous to the Court's approach to Equal Protection and the First Amendment. It is not wildly creative or absurd.
New SDP goes like this: if you have a fundamental right, and a statute impedes on that fundamental right, then the state must have a compelling interest/purpose behind the statute, and the statute must be necessary to complete that purpose. If the right in question is found to be a mere right, go directly to "old" SDP, do not pass go, do not collect $200.
How does one decide whether a right is fundamental or not? Answer: you look to history. To how the law has historically treated that right. And I don't mean just American history, nay, not even merely anglo-american history. You can look to Ancient Greece, Rome, Persia, all of western civilization. Fun! J. Black must be rolling in his grave. For once J. Harlan (the younger) has defeated him. (granted, they were both dead at the time, but it's true, this is J. Harlan - the younger - winning on the grand debate that the two had had since the Incorporation debate that C.J. Warren forced a compromise on).
What is the effect of new SDP? For all intensive purposes, if the Court finds that there is a fundamental right that is being impeded by a statute, that statute is going to be invalidated. If the right is declared a mere right, the statute will be validated. Generally speaking, economic rights are mere rights.
A Wrinkle!
So there is also a middle road! how fun! This is the one that J.Scalia &Co. really hate. It involves Intermediate Rights and the end result is not all that predictable, it involves a balancing test and all the sorts of things that J. Scalia despises. It's the great grey area. And before you get your panties in a bunch, this is completely consistent with the tests involved with Equal Protection and First Amendment matters.
Ahem
So, where's the beef guys? What's so wrong with all that then?
Subscribe to:
Post Comments (Atom)
8 comments:
1) I cannot fathom how you can put forth so much on the subject and NOT reference Roger Taney's unique contribution to the creation of substantive due process. He inferred, in a majority opinion, mind you, that since slaves were property their masters could take them anywhere in the country because the Constitution prohibited taking "property" without due process. The genesis of SDP is pure hokum.
2) I'm in the "Roe was wrongfully decided on the law" camp, our ranks include J. Ginsburg.
3) I believe I stated my disgust at the Slaughterhouse Cases awhile back, the Court, erroneously in my view, afforded corporations 14th Amendment rights it refused to give to freedmen.
4) Agreed, Lochner was crap, and, yes, overruled, albeit sub silentio.
5) You should note that a substantial part of so-called 1937 Revolution owes to reinterpretation of the Commerce clause/X. Years later, justices would strike down segregationist establishments, post-1964, on the grounds that they were located by a highway, and thus subject to interstate commerce (The Heart of Atlanta Motel Case). Baseball, to the Court's mind, continued to receive exemption. You should also note that the Rehnquist Court began to undo some of this with its rulings on such federal statutes as The Gun-Free School Zone Act of 1990 (Lopez). J. Thomas is pre-1937 in ideology, thus the most dangerous member of the court.
6) Roe deserved to prevail on Equal Protection grounds (TX = NY) not on some judicial chicanery involving "penumbras" of the I, III, IV and IX Amendments. I would like to see the word "abortion" written into the Constitution, although, I'm certain, you'll tell me that's unnecessary.
6B) A right to privacy is undeniably implied in III, yet is MUCH flimsier in IV. I would vote in favor of adding a new constitutional amendment explicitly denoting a "right to privacy." Its current construction, or J. Breyer's "active liberty" is a bridge too far. SCOTUS is not a supra-branch of the US Government.
6C) A note on procedural due process, it is rendered much less controversial because of VIII.
6D) I note your silence on C. J. Taney and The Dred Scott Case, proponents of SDP despise having to continually explain that one away. I will agree that SDP looks better today than it did 1857-1937, but it remains chicanery, even when provides more rights (e.g. contraception, abortion, sodomy).
6E) So Justice Harlan was right in addressing Griswold from the angle of IX? The "right to privacy" stands thus as an "unenumerated right"?
Questions... What do you think of Pierce, or the "liberty of parents" doctrine? I don't agree with J. White on much, yet his argument in Bowers, legally, should have some appeal. The federal judiciary should not have license to create right after right. Which is why, again, I would prefer a "right to privacy" amendment.
1) Dred Scott was decided in 1856. XIV was adopted in 1868. The first sentence of XIV overrules Dred Scott. Dred Scott is irrellevent to discussing current SDP, which is based on XIV, not V.
2) J. Ginsburg thought Roe unnecessary because the states were moving in a pro-choice direction at the time, and Roe stopped all that. Please direct me to any statement by her to the effect that the holding in Roe was incorrect legally.
3) we have no disagreement here.
4) Not explicitely overruled, but altered significantly with the rational relation test taking over from the substantial relation test
5)Yes, the switch on Commerce power jurisprudence (as well as no longer treating unions as monopolies) were also involved with 1937. Neither is relevant to the current discussion on SDP. Also, it is questionable how much of a real departure Lopez and Seminole Tribe are, especially given the more recent medical marijuana case. Commerce power should really be another post.
6) No where did I mention J. Douglas' ridiculous "penumbra" notion here. (which comes from Griswold, not Roe). J. Blackmun's opinion relies on its construction of "liberty" in XIV, NOT penumbras or IX. "This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." 410 U.S. 113, 153.
Griswold was decided while J. Black was still on the court, thus any mention of using SDP to invalidate a law was verboten, and so Justices resorted to ridiculousness like "penumbras." J. Stewart's concurrence in Roe (after J. Black had died) asserts that Griswold was really a SDP case. "Griswold stands as one in a long line of pre- Skrupa cases decided under the doctrine of substantive due process, and I now accept it as such." 410 U.S. 113, 168 (J. Stewart concurring). I would argue it went its obtuse way because of J. Black.
I fail to see how there is an equal protection challenge to the texas statute here. do enlighten me.
6B) as stated above in 6, the right of privacy is found in the word "liberty" in XIV. As for a privacy amendment, I direct you to my favorite president, FDR: "For an amendment, like the rest of the Constitution, is what the justices say it is rather than what its framers or you might hope it is." (Fireside Chat on Reorganization of the Judiciary, March 9, 1937)
6c) irrelevant to current discussion.
6d) please see #1
6e) i personally am a fan of IX, even though it's as dead as the P&I clause in XIV currently is, the problem with IX is that it's just as subjective as SDP, probably more so, and there is no established test for using it, unlike SDP. at least SDP provides a neutral framework for discussion.
Note on Bowers: utter shit, was wrong then, and was wrong when Lawrence overturned it. White read Griswold, Eisentradt, Roe, etc as recognizing a fundamental right of control over begetting a child, rather than a fundamental right of privacy. That, I do not buy. Interestingly, J. Powell, who joined C.J. Burger's concurrence in Bowers, later told i believe the NYT that he was wrong and should have gone with the dissent in Bowers. (if he had, that would have been 5-4 in favor of overturning the GA statute). The federal judiciary in these cases did not create right after right, they recognized a historically respected fundamental right of privacy, and then interpreted what flowed from that fundamental right. For a liberal you are speaking an awful lot like a certain sicilian.
1) 1857, actually, just after the inauguration. Doesn't matter, SDP first took root in trying to allow for slavery in all parts of the country. I would argue it is not irrelevant. In EITHER form, it is a judicial-activist approach to the Constitution.
2) Read Linda Greenhouse's recent book on Justice Blackmun. He was originally concerned with the rights of doctors, not women.
4) C. J. Taft noted in a later opinion that he thought Lochner had been overruled sub silentio, or not explicitly overruled but ignored as precedent.
6) Without Griswold do you see a Roe? "Liberty" = "Privacy"? That is exceedingly broad.
Consider the laws of Texas and New York at the time of Roe, vis-a-vis abortion. Did everyone woman, whether from Alabama or Washington D. C., possess the right to have an abortion?
Yeah, how well did that campaign go for him? As in many other areas, FDR was full of it. An explicit Constitutional amendment protecting "privacy," not "privacy by way of liberty" would settle the issue. If NARAL is so confident we live in a pro-choice America, let the people vote. I'd certainly stump for it.
I note your derogatory remarks, so Angry Left of you... I think our disagreement is on the matter of "liberty" in XIV.
Final note on Bowers, I sympathize with some of J. White's opinion, but ultimately agree with J. O'Connor's concurrence in Lawrence, when she deemed the GA statute a case of failing to provide equal protection to homosexuals.
Perhaps a point of clarification is in order. I tend to form my views according to the way I live--and I'm not a private person. Examples:
1) I wouldn't put my name on the national No-Call list.
2) Aside from the Third Amendment, I believe Americans have very few privacy "rights."
3) I think "indecency" statutes, which prohibit sexual behavior in public because lawmakers don't want to see gays and lesbians "acting out" are unwarranted.
4) I question the philosophy of many liberals that read so much into "the right of privacy" unless II is stake. I question the right of individuals to own some guns, particularly assault weapons. I would agree, however, with the recent D. C. Circuit ruling on the handgun ban in the capital. I think that goes too far.
5) I admire Locke's (that's right, Joe, we've entered into philosophy! There's your cue...) intellect, but don't believe as fervently in his "social right" to property, the very essence of privacy.
6) I would advocate less privacy in government: cameras in the Supreme Court, cameras in the Oval Office. I think Executive Privilege is more or less bunk as well.
7) I have no problem with the NSA monitoring telephone calls and e-mail, whether in a Bush administration or a Clinton one.
8) I also have no problems with either the new digital imaging airport screeners or cameras posted in traffic lights.
Separate, but related to SDP, I would vote to overturn the law from the Santa Clara Cases, whereby corporations attained legal personhood.
On a personal level, I will answer any question that does not reveal other people's names or actions (save to prevent a crime) or require me to speak for other people. Any question.
One might ask, what of your books then? It is certainly true my books are not in my own name. Yet, you'll note the initials correspond precisely. One may also note that my real name, though not prominently displayed on this blog, is simply one link away.
1) SDP did not really take root until the lochner era, and those cases did not reference Dred Scott, understanding that the central holding in Dred was that Mr. Scott was not a citizen and therefore the constitution's P&I clause and V did not apply to him. The bit about due process in the rest of the opinion, which is really dicta more than anything once the previous decision has been made, does not resemble SDP in any significant fashion. If you argue that it does, please be more detailed about it.
2) yes J. Blackmun wrote Roe in the Mayo clinic, yes he got plenty of medical input, but look at the opinion, it is worded not in terms of doctor's rights, but of a woman's rights.
3) C.J. Taft retired from the court in 1930, he died in 1930. Lochner was good law until 1937. Tell me, how could he have written an opinion post 1937? He did write that he thought it should be overruled, in a dissent, in 1923, but he died before he saw that happen.
4) yes griswold is a roe-precurser, but that is not at all to say that Roe relies on J. Douglas' penumbras; it explicitely does not.
5) there was no equal protection problem with state by state abortion law. The P&I clause in article IV guarantees that a citizen of state x will be treated as any citizen of state y when x is in state y. Because of this, x could go to state y and get an abortion if his state x does not allow abortions, but state y does. There is no equal protection problem with this, each state is sovereign and has its own laws, these laws vary from state to state, the constitution expects it to be so. EP problems arise when in the same state (or in the U.S. as a whole in the case of federal legislation), disparate classes of people are treated inequally by the law.
FDR was not full of it on re: amendments. Look at IX, look at the P&I clause of XIV. An amendment is unnecessary, not all protected rights are enumerated in the constitution or the amendments. By making amendments stating what further rights are, the danger is that those rights enumerated will be the sole rights recognized.
O'Connor is one of my least favorite justices. Unprincipled. Period. compromise compromise compromise.
In Lawrence, she took the easy way out, without addressing the difficult issue, without addressing privacy. DP does come before EP in the amendment, why should EP come first in our analysis? By taking O'Connor's tact, Bowers would not be overruled, as it deserved to be, see my last comments.
1) No, that was NOT the central holding. The majority opinion could've stopped there. Pointedly, they did not. "Dicta," it was not. The opinion sought to provide sanctuary for slaveowners everywhere in the US, by way of Amendment V, relating to the right of individuals to take their property anywhere they pleased. SDP is judicial-activism, rightly or wrongly, and the 1857 decision stands as the most blatant moment of judicial excess in the history of the court, also, the most nakedly partisan.
2) Without the initial concern over doctors, however, women's rights never achieve recognition.
3) Your last sentence answers your query. I did not meant to assert he had overruled it. I refer thus to the dissent.
4) Nonetheless, it provided a form of cover--and that matters. You're arguing J. Blackmun goes as far without the quasi-Griswold precedent?
5) I do not doubt that Bowers deserved to be overruled. My point, though, is to say that it never should've become law. For me, the EP provision is enough to strike it down. Once again, our disagreement on the word "liberty" is quite apparent.
Truly? You'd rather have Rehnquist, Thomas, Scalia, or a host of other "principled" justices? What true "principles," might I inquire, exist in J. Blackmun's Roe I assume you rate O'Connor ahead of the aforementioned? In any event, I would select Justices Black, Brennan, Douglas, Frankfurter, Ginsburg, Marshall (T.), O'Connor, Stevens, and Warren. Essentially, six liberals, two moderates (the Chief and O'Connor) and one conservative (Frankfurter).
I do not pretend to agree with the sentiments of all the justices.
Dred Scott: it is dicta. Once the court decides that Scott had no standing or claim on which relief could be granted, anything more than that is extraneous dicta. Kind of a "for the sake of argument, if we did decide that Scott were a citizen,..." thing. Clearly dicta. and irrelevant to the debate about modern SDP.
your point about doctors/women is very arguable, perhaps that is true about J. Blackmun's mindset, but not his opinion is not worded as such, and those joining in his opinion did not nec. feel that way.
I'm arguing that Roe never is worded in SDP fashion with J. Black still alive, it would be messy as all hell like Griswold was. Griswold was a SDP case in disguise, which J. Black noted in his dissent. Roe is a SDP case that has shed its disguise. this is my point.
there is no possible EP argument in Bowers, the GA statute applied to everyone, not just homosexuals like the TX statute did in Lawrence. Because of this, ruling in Lawrence on EP grounds would not overrule Bowers.
there are at most 4 "anti-privacy" justices on the current court, maybe 5. This is assuming J. Alito and C.J. Roberts go the way they are expected.(I would argue a big assumption, especially for C.J. Roberts)
My dream team of justices: J. Black, his rival and his protege, J. Harlan the younger, and J. Douglas respectively, J. Brandeis, J. Stephens, J. Cardozo (even though he often wrote law review articles in the guise of opinions), J. Ginsburg, C.J. Marshall (John).
Earl Warren being honorable mention for C.J. honors, but alas, he lacked the intellectual Prowess of a Marshall. (Though he more than made up for in his political and dealmaking skills, don't mean to bash the guy at all, not even calling him dumb or anything, just think Marshall was by far the greater scholar).
NOW, if I were allowed to include non-justices who should have been justices into this list, the following would be added
James Skelly Wright (E.D. LA 1949-1962, DC Ct. of appeals, 1962-1988)
Roger J. Traynor (CA Supreme Court, 1940-1964, C.J. CA supreme court, 1964-1980)
Lawrence Tribe (oh i donno, just some guy who's written a few things)
1) Not when it becomes the law of the land, it is not. The decision was pointed, Scott is property, and by our viewing of V (using the same logic as "modern" SDP) his owner may take him anywhere in the country as a slave, period. This decision, coupled with Brown's 1859 raid did more to send the nation to civil war than anything.
2) "Sodomy" is generally understood to mean homosexual sex between men (of any variety). This is quite clear. The GA statute clearly meant to apply to male homosexuals.
3) I think, personally, C. J. Roberts supports Griswold but not Roe. J. Alito supports neither of them.
4) Greater scholar? Yes, but more conservative than generally realized. I would also argue C. J. Marshall was the greatest dealmaker of them all. No conservatives at all? Cardozo over Frankfurter? J. Frankfurter was J. Black's true rival. No J. Brennan? I count only eight, whom did I miss? Both Marshalls?
Should've been...
Margaret Marshall, MA (wouldn't have passed Senate, though, after 2003)
Alan Page, MN Supreme Court
Daniel Webster, MA (prior to his apostacy in 1850)
Post a Comment