Maryland’s state song made the front page of the Baltimore Sun yesterday. The marching band at the state university doesn’t want to play it at football games anymore.
The lyrics, set to the tune of “O Christmas Tree” by a secession-minded poet in 1861, begin: “The despot’s heel is on thy shore.” It’s a reference to the federal government. Marylanders are urged to use their “peerless chivalry” to rise up and defend the state: “She is not dead, nor deaf nor dumb. Huzza! She spurns the Northern scum!”
This egregious song comes up for debate every so often. For years there’s been a bill in the legislature in Annapolis proposing that it be replaced. Amid moves all across the country to ditch public reminders of American slavery and/or the Confederacy, the on-again-off-again campaign against “Maryland, My Maryland” is on again.
Perhaps, amid the profound divisions revealed by the national conversation over Confederate monuments, consensus could emerge over this: If their removal is justified, it should be carried out in the light of day.
My good friend Matthew Franck has turned his considerable wit to the task of gleaning the meaning of due process from the history of our jurisprudence, English and American. And the account he published recently in American Political Thought—entitled “What Happened to the Due Process Clause in the Dred Scott Case? The Continuing Confusion over ‘Substance’ versus ‘Process’”—must surely stand as one of the most searching and thoughtful in recent memory.
The lawyers and writers most concerned about “substantive due process” have also been the most reserved about natural law and natural rights. They have regarded as a high judicial offense the willingness of judges to import into their decisions notions of rights, or natural justice, that are not contained in the text of the Constitution. They tend to hold fiercely to a law composed of “procedures,” and to the strict terms of the positive law.
But as the question is opened to a closer, more probing view—and opened by Franck’s piece—I think it becomes all the clearer that the difference between “substantive” and “procedural” due process fades away: that the issue simply cannot claim the moral import that has been attached to it, or be as portentous in our constitutional law as the critics of “substantive due process” have long thought it to be.
A reader asked for more discussion of the Charles River Bridge decision, which I cited as a precedent against claims that taxis displaced by Uber were legally entitled to compensation. Charles River Bridge is a fascinating Supreme Court case that is largely unknown to this generation of lawyers. I remembered it only from discussions in American history class as a high school student.
The case marks the transition from the Marshall Court to the Taney Court. In fact, it was first argued under the Great Chief Justice but decided under Taney. It shows how Jacksonian democracy shifted the course of constitutional law.
The case revolved around bridges and the anti-monopoly principle. The bridges at issue spanned the Charles River in Massachusetts. That first bridge builder, the Charles River Bridge Company, argued that the state had given it a monopoly in return for building its bridge. Thus a subsequent charter to another company for building another bridge violated the provision of the Constitution which bars states from “impairing the obligation of contracts.”
Justice Taney’s opinion based his reading on the original charter for Charles River Bridge company, which he interpreted as not granting any monopoly right. But his interpretation was heavily influenced by his democratic and indeed Democratic ideals.
In this post at Volokh, Ilya Somin challenges Justice Clarence Thomas' recent remarks that "We the People" in the Preamble of the Constitution did not include African-Americans when it was ratified in 1787. The history is much more complex and interesting than many know, obscured as it has been owing to Chief Justice Roger Taney's majority opinion in Dred Scott, which articulated that both the Declaration of Independence and the Constitution never recognized the rights of blacks who, in Taney's formulation, “had no rights which the white man was bound to respect.” Part of his conclusive proof was that the…