damnum absque injuria

July 7, 2010

A Partial Defense of Substantive Due Process

Filed under:   by Xrlq @ 12:30 am

NK asks, I presume rhetorically, if every stupid law is unconstitutional. This brings me to a topic I’ve been meaning to blog about since the McDonald decision: was the reasoning of the Alito plurality really that bad, or even all that different from Justice Thomas’s position? In other words, is a law forbidding law-abiding residents to exercise one of their constitutionally protected liberties really any more consistent with this:

No State shall …. deprive any person of life, liberty, or property, without due process of law[.]

Than it is with this:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States[.]

And if so, why? Because it would seem to me that any law that arbitrarily deprives citizens of their freedom, without so much as the pretense that they’ve committed any crime (let alone due process to determine whether or not they have) is every bit as problematic under the Due Process Clause as it is under the Privileges or Immunities Clause – unless you think there’s some reason why freedoms secured by the Constitution are properly described as “privileges or immunities” but not simply as “liberty.”

Tell me why I’m wrong.

10 Responses to “A Partial Defense of Substantive Due Process”

  1. Manifesting Abundance through Subconscious Programming | Mind Movies 2.0 Blog Says:

    […] damnum absque injuria » A Partial Defense of Substantive Due Process […]

  2. Yu-Ain Gonnano Says:

    Well, my non-lawyer opinion would be two-fold.

    1) When comparing the two statements the second one suggests that there are things that may not be abridged even with due process.

    2) Just how much “Process” is “Due”? Can someone who has received all process which is due to them and convicted of speeding be deprived of his right to free speech?

  3. Yu-Ain Gonnano Says:

    Something else I saw brought up by Clayton Cramer over at Volokh is that Due Process would apply to everyone “any person” while “PoI of citizens” would only apply to citizens.

    Which seems to imply that citizens have additional protections above and beyond what may be protected by Due Process.

  4. nk Says:

    I believe Privileges and Immunities is another way of saying “We are our own king” or, in other words, “democracy”.

  5. nk Says:

    My neighbor is a tympanist — he likes to practice orchestral jazz. For hours. Sometimes, his wife complains about my chimes. They need to learn to live with us and we need to learn to live with them. Constitution?

  6. Anwyn Says:

    What’d you say when she complained about the chimes, nk? Windchimes or some other type?
    Anwyn´s last blog post ..The Tailor

  7. nk Says:

    I told her her hair looked nice or something like that. Noncommittall, nonconfrontational. Yes, stained glass windchimes.

    We had a stained glass artist in our village and we bought a lot of stuff from him (panels that we use as window treatments, globes, chimes) but, unfortunately, he passed away.
    nk´s last blog post ..When I Am King Of The World

  8. nk Says:

    For you, Anwyn. http://krites.blogspot.com/2010/07/picture-for-anwyn.html
    nk´s last blog post ..When I Am King Of The World

  9. Anwyn Says:

    Thanks for the pretty pic. :)

  10. mikee Says:

    Wind chimes that my neighbor had used to get stolen by unknown persons, again and again. Eventually he stopped putting them up. I wonder if the real criminal will ever be identified?

    P/I questions threaten to unleash possible repeal of a huge number of governmental power grabs going back fifty or more years, whereas Due Process has been used to incorporate individual rights against state infringement for even longer. So P/I arguments are avoided like the plague by the Supremes, who don’t want to overthrow federal power in one fell swoop.

    However, Clarence Thomas was absolutely, historically, rationally, legally correct in his concurring opinion that P/I was the correct way to go on the McDonald case.

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