In response to: The Legal Turn
On the Originalism blog, Michael Ramsey and Andrew Hyman responded to my post for Law and Liberty on the original understanding of substantive due process. Hyman disputes the definition of “liberty” I provided and asserts a different definition of “due process of law” in the Fifth Amendment, while Ramsey asks for more evidence that the definition of “liberty” given wasn’t unique to Thomas Jefferson.
Recently, I critically reviewed Damon Root’s new book, Overruled: The Long-War for the Control of the Supreme Court (see Part 1 and Part 2). In response, Root and others have now taken to the blogosphere in defense of the book and of libertarian constitutionalism. Unfortunately, Root just digs a deeper hole and his defenders only illustrate the problem with libertarian readings of the Privileges or Immunities Clause.
During a recent trip to the National Archives, I saw one of the earliest known copies of Magna Carta in existence. And I remembered one of my favorite parts of Magna Carta, the “Law of the Land” clause:
No freeman is to be taken or imprisoned or disseised of his free tenement or of his liberties or free customs, or outlawed or exiled or in any way ruined, nor will we go against such a man or send against him save by lawful judgement of his peers or by the law of the land. To no-one will we sell or deny of delay right or justice.
This pronouncement, that neither life, liberty, nor property can be taken except by the “judgment of his peers or by the law of the land,” is the constitutional predecessor of our Due Process Clause. This also served as a basis for some notion of judicial review. Some argue that this history provides for a substantive component of law, rather than a mere procedural aspect.
The seven articles and twenty-seven amendments to our national Constitution contain roughly 8,000 words. Of those, perhaps none have generated so much intense controversy as the fifty-two words placed inconspicuously in the second sentence of the Fourteenth Amendment: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” In this sentence’s three prohibitions—the Privileges or Immunities, Due Process, and…
David Upham argues with characteristic lucidity that, based on the due-process rights of children, the Constitution might actually prohibit same-sex marriage. The argument is innovative, but it ultimately demonstrates the danger of constitutionalizing policy disputes best left to prudential judgment. Upham’s argument, if it can be summarized without doing it violence, makes four steps: (1) The Due Process clauses of the Fifth and Fourteenth amendments cover children’s liberty understood as locomotion. (2) Parents are the trustees of that liberty. (3) The traditional “usages and modes of proceeding” guaranteed as part of due process by Murray’s Lessee include—this is Upham’s innovation, and,…
In FCC v. Fox Television Stations, Inc., and a companion case involving ABC, seven Justices ruled that decency standards promulgated by the Federal Communications Commission were so vague that their application to television programs broadcast by the respondents’ affiliates violated the Due Process Clause of the Fifth Amendment. On that basis, the Court voided FCC orders finding that the respondents had violated 18 U.S.C. § 1464 (and imposing what I take to be a civil forfeiture of almost $1.25 million on ABC’s affiliates). Justice Ginsburg concurred in the result on First Amendment grounds, and Justice Sotomayor did not participate in the consideration or decision in the case.