Making Sense of Substantive Due Process (Part II)

Substantive due process is a way for the Court to reconcile three important documents with the Fourteenth Amendment of the Constitution. First, the Declaration of Independence which states, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed ….”. Secondly, the 1823 case Corfield v. Coryell defines what it is meant by the privileges and immunities clause in the Constitution: “The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each state, in every other state, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old articles of confederation) ‘the better to secure and perpetuate mutual friendship and intercourse among the people of the different states of the Union’.” Thirdly, the Civil Rights Act of 1866 defined privileges and immunities as: “That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.”

The Declaration of Independence, Corfield v. Coryell, and the Civil Rights Act of 1866 were the main elements incorporated into the Constitution via the Fourteenth Amendment in 1868. Also, the natural rights contained in the above-mentioned documents can also be implied through the Ninth Amendment suggesting any rights not included in the Constitution should not be denied or disparaged. All persons are born with natural rights which must be the number one priority of any free government to protect and the only way to successfully achieve this goal is via substantive due process since thousands of natural rights are not outlined in the Constitution. Constitutional Convention member, James Wilson, opposed the Bill of Rights because it was impossible to outline all the natural rights that should be protected and he feared that doing so will disparage the rights not mentioned in the document. This fear brought about the Ninth Amendment, but the amendment has been very rarely used to protect individual natural rights. Therefore, Wilson was right, protecting some rights within the confines of the Constitution has disparaged thousands of rights.

Originally, I thought the first occurrence of substantive due process in American History was in Dred Scott v. Sanford (1857). However, this is not true, the doctrine had existed in English law prior to Constitution and was introduced into Constitutional law very early in our history. In Calder v. Bull (1798) Justice Samuel Chase wrote that the transfer of property from one person to another contradicted natural law and was unconstitutional. The Court reiterated Calder v. Bull in Terret v. Taylor (1815) and Wilkerson v. Leland (1829). In Hoke v. Henderson (1833) the Court held that holding a public office was also private property and it could not be taken away without due process of the law. Dartmouth College v. Woodward (1819) was an interesting case because the State of New Hampshire attempted to cancel the school’s charter to force it to become a public institution. Daniel Webster defended Dartmouth College through substantive due process claiming New Hampshire violated natural law by passing a bill of attainer. The Court ruled in favor of Dartmouth but did not adapt the substantive due process theories of Webster. In the 1852 case Bloomer v. McQuewan the Court adopted the “First Sale Doctrine”. This substantive due process ruling protected people from prosecution for reselling a product they legally purchased without violating copyright or trademark protections. For example, a person can resell a legally purchased book without facing prosecution from the author of the book for copyright violations. In Sharpless v. Mayor of Philadelphia (1853, Pennsylvania case) and Stockton and Visalia Railroad v. City of Stockton (1871, California case) the Courts found it legal for a city to tax its residents with the proceeds going to a private company to finance a railroad project. However, the Supreme Court rejected the rationale in both Stockton and Sharpless in Loan Association v. Topeka (1874). The Court held that redistribution of wealth through taxes violated the Fundamental Natural Rights of individual property rights. Persons ought to have the right to do anything lawful with their own bodies and their possessions without any government interference or restrictions so long as their actions do not violate the rights of others. Although liberals would agree that tax money should not be used to supplement the finances of a private company, they would adamantly disagree with preserving natural rights because they believe property (money) can be taken away from one private citizen and given to other private citizens in the form of welfare. Welfare violates the basic principles of individual natural rights to do as they lawfully please with their property (money).

Making Sense of Substantive Due Process (Part I)

Substantive due process is a doctrine used by some Supreme Court Justices to protect individual liberties and natural rights that are not mentioned in the Constitution. Before studying Constitutional law, I was adamantly against the use of this doctrine because it allows Justices the freedom to introduce their opinions and biases instead of deciding cases based on the law. For instance, both Dred Scott v. Sanford (1857, protect the slave property of owners) and Roe v. Wade (1973, protecting abortion) used substantive due process but were horribly decided. In Dred Scott Justices protected slave owner’s property rights but never considered the rights of slaves and in Roe the Justices protected the rights of pregnant women but never considered the rights of the unborn. Natural rights should be about protecting the rights of all persons, not just a few at the expense of others. Natural rights should not contradict or conflict with other rights. Because of decisions such as Dred Scott and Roe, I opposed the substantive due process doctrine. But just because errors were made using substantive due process, it does not mean the doctrine is not sound law. After all, the equal protection clause was misinterpreted for decades after Plessy v. Ferguson (1896, separate but equal doctrine), but that does not mean the equal protection clause was not sound law. Keep in mind, substantive due process is not much different than when the Court interprets implied powers. The Court often implies federal legislative powers even when the powers are not enumerated. Therefore, the Court implicitly interprets the Constitution all the time. This can be just as dangerous as the fears substantive due process will input judge’s biases and opinions into laws. For instance, in McCulloch v. Maryland (1819) Justice Marshall wrote the power to incorporate a National Bank could be implied from the Necessary and Proper Clause to carry out the government’s taxing power. Because of this ruling the Commerce Clause has been interpreted to imply the federal government has the power to control all manufacturing and just about anything economic in nature. The Court’s history is filled with hundreds of implied power cases. Finally, it is often argued that originalism and substantive due process cannot be reconciled and this is problematic since I consider myself as an originalist interpreter of the Constitution. However, I believe that originalism and substantive due process can be reconciled through the original intent of the founders for both the Ninth Amendment and or the Privileges and Immunities clause of the Fourteenth Amendment.

Many will argue incorrectly that the Constitution and henceforth the United States is a democracy. Actually, the Constitution put forth a Republican form of government. While many aspects of the Constitution support democratic ideals but the separation of powers, checks and balances, and federalism doctrines support many non-democratic principles. For instance, the electoral college may prevent presidential candidates with the highest popular vote from winning an election. In the 2016 election this prevented California (the most populous and liberal state) from deciding the outcome of the election. Another example is how all states regardless of population have the same representation in the Senate. Furthermore, many types of bills or procedures require super majorities to pass the House and Senate (not just a democratic majority). The fact the President and the Supreme Court can void democratically passed legislation by Congress is the best example of how separation of powers and our check and balances prevent majorities from having too much power. These are a few of many examples where the design of the Constitution is to limit the power of the democratic majority. The reasons for these security measures are explained best by Madison in Federalist Paper #10 where he highlights the concern over factions (majorities or powerful special interest groups) that will use their power to silence or limit the rights of minority groups. Madison’s fears have come to fruition for a variety of reasons outlined below.

First, many Supreme Court justices practice the use of judicial restraint to uphold questionable legislation. This process “under enforces the Constitution” because Justices believe Congress and States are acting in good faith and give them the benefit of the doubt. Secondly, the Supreme Court does not enforce natural rights within the Bill of Rights equally. For example, for political and commercial free speech the Court uses different levels of scrutiny to render decisions. What’s worse, government power to control, for instance, economic rights are absolute and often conflict with individual liberties. For example, in United States v. Carolene Products (1938), the Court outlines in Footnote Four of the case decision, a few minor exceptions where the Court may restrict a federal or state law which violates the rights of individuals. But Footnote Four fails to mention hundreds of other instances where a law may violate the rights of individuals. Hence, many laws violating the rights of individuals will be held Constitutional using a rational basis test proposed in Carolene Products. In fact, the decision in Carolene Products denied the company the right to sell their “filled milk” products across state lines. Brandies briefs for the case contained false information claiming filled milk products were far less healthy than milk. In essence, the milk lobby squashed their competition with the help of Congress since filled milk was cheaper than milk. This was not only prejudicial; their evidence was proven to be wrong: Filled milk products were healthier for humans than real milk. Regardless, no lawful company should have its rights violated at the expense of another company. Thirdly, the Supreme Court upholds laws and statutes (even if they violate the rights of individuals) because they support what the majority or a powerful special interest group want (like the Carolene Products example above). Consider how majority rule and judicial restraint kept slavery alive for nearly 100 years after our independence with rulings such as upholding the Fugitive Slave Act of 1793 in Prigg v. Pennsylvania and Jones v. VanZandt even though Congress has no enumerated power to legislate over the issue of slavery (the Fugitive Slave Clause is in Article 4, which is a compact between the states, it is not an enumerated power for Congress). Moreover, majority rule and judicial restraint led to some of the worst decisions in our history: Plessy v. Ferguson (1896, separate but equal doctrine), Buck v. Bell (1927, compulsory sterilization), and Korematsu v. United States (1943, the interment of a race of people). Even more recent decisions such as Quinn v. Nevada (2003) and New Orleans v. Dukes (1976) show the effects of majority rule and the power of special interest groups. In Quinn, the Court upheld a procedure by the Nevada legislature to remove a two / thirds majority within its Constitution to pass a budget and in Dukes the Court held a New Orleans law removing all but one company for vending machines was constitutional. In Kelo v. New London (2005) the Court held the taking of private property for private reasons was Constitutional if the result is to better the community. This means nobody’s property is secure from government intrusion and confiscation if a majority in the community feel it is necessary. In Grutter v. Bollinger (1997) the Court has held raced based standards for law school admissions to be Constitutional. In other words, if a majority of persons feel that social justice in the form of reverse discrimination is justified to make up for previous racial discriminatory acts against African-Americans, then it is legal. Let me be clear, no discrimination is justified in the Constitution. Just because a majority of Americans or a special interest group hold a certain belief, it does not make it right.

Popular Soverignty, the Executive, Congress, and SCOTUS: Battle for Supremacy (Part V)

Mootness involves cases where the injury goes away over time. For example, in DeFunis v. Odegaard (1974) the Court reviewed a case involving reverse discrimination of a White student rejected from law school because of diversity policies. However, by the time the case got the Supreme Court, the student was admitted to the law school and was only a year from graduation. Therefore, the Court held the case was moot since no injury remained. In Roe v. Wade (1973) the Supreme Court decided the case even though Roe’s baby was aborted and the injury was moot. Similarly, in Firefighters v. Stotts (1984) the Court decided this case even though there was no injury. In Stotts, those firefighters who lost their jobs due to affirmative action were rehired and hence the case should have been moot. Also, in North Carolina v. Rice (1971) the Court correctly decided a moot case to expunge the criminal record of Rice. In more recent times, the Court has settled a few environmental cases over the issue of mootness. In Friends of the Earth v. Laidlaw Environmental Services (2000) the Court held an environmentalist group could sue a company for polluting the Tyger River since they can no longer use the river for recreational purposes. The defendant claimed the case was moot because they already closed the polluting plant. The Court disagreed because the defendant still owned the plant and could reopen it at any time. In Summers v. Earth Island Institute (2009) the Court held an environmentalist group had no standing against the Forest Service because the dispute was settled prior to reaching the High Court making the case moot. In these environmental cases, once again, the Court protects the federal government, but refuses to do the same for a corporation or individual.

Ripeness is the opposite of mootness. A case can be brought to the Supreme Court too soon, prior to any injury. Poe v. Ullman (1961) is probably the most famous ripeness case. Since Connecticut did not enforce a state statute that made it illegal for married couples to use contraception, it was not ripe. That changed in the Landmark case Griswold v. Connecticut in 1965. The 1947 case United Public Workers v. Mitchell involved public workers questioning the constitutionality of the Hatch Act (denied public workers from working on political campaigns). The Court held that since no injury occurred, the case was not ripe. Similarly, in Doe v. Bush (2003) the Court held a citizen had no standing to challenge to the Iraq War because a “clear” Constitutional issue was not apparent and therefore, the case lacked ripeness.

The political questions doctrine was released in Baker v. Carr (1962). Baker v. Carr was a political questions case because it dealt with state districting guidelines for elections. However, the Court incorrectly ruled on the case saying that state house and senate seats have to be divided equally and proportionally based on population. The Court held that the Constitution says the Federal Government must assure each state has a Republican form of government. However, Republican and Democratic forms of government are not the same thing. The Court ruling in Baker v Carr implemented a Democratic form of government, not a Republican one (Luther v. Borden in 1849 said establishing Republican forms of government among the states was a political question). Elections and disputes between the Executive and Congress are generally seen as political questions beyond the powers of the Court. For example, the Court has held impeachment (Nixon v. United States, 1993), presidential termination of treaties (Goldwater v. Carter, 1979), amending the Constitution (Coleman v. Miller, 1939), and apportionment of state districts (Colegrove v. Green, 1946 overruled by Baker v. Carr, 1962) were political questions. On the other hand, the legislative veto (INS v. Chadha, 1983) and the exclusion of members from Congress (Powell v. McCormick, 1969) were not political questions. Of course, the most famous political questions case was Bush v. Gore (2000). In this case, the Court incorrectly decided that the Florida recount violated the equal protection clause for using different counting methods amongst the Florida counties. However, the Court correctly held that the Florida Supreme Court introduced violated the Florida constitution by creating new election law and only the Florida legislation could introduce and implement election law. Court jurisprudence doctrines of ripeness, mootness, standing, and political questions check Supreme Court power. However, the Court does not decide these types of cases in a consistent manner and generally decide them in favor of the government over the rights of individual citizens.

In most cases regarding overturned statutes and laws, the Court would eventually overrule itself to keep up with the changing times. The Court has essentially overruled prior decisions over a hundred times in the Court’s history. In most of these cases, the Court caved to political pressure from Congress and the voting public since the corrected decisions were worse than the original ruling. Here are some of the critical overturned cases by the Court: The Legal Tender Cases following the Civil War allowed the government to print paper money despite the fact the government defaulted on the payment to individual citizens. The right of employer and employee contracts over wages and hours in Lochner v. New York (1905) was overruled in West Coast Hotel v. Parrish (1937). This allowed the Federal government to control wages and hours of most American citizens. Child labor laws were left to the States in Hammer v. Dagenhart (1918) until it was overruled in United States v. Darby (1941). The Court, Congress, and history books never consider cases where children want to work and adults need longer hours to support their families. Instead, the new precedent denies these fundamental rights to people who are willing to do the work. To make matters worse, many wage, hour, and child labor laws were discriminatory because they only targeted certain businesses and genders. Some overruled cases, on the other hand, are good decisions to protect human rights. In Minersville School District v. Gobtitis (1940) the Court held that mandatory flag salutes in schools was constitutional even if it violated someone’s religious believes. This ruling was correctly overturned just three years later in West Virginia v. Barnette (1943). In Pennsylvania v. Nelson (1956) the Court held a Pennsylvania sedition law was unconstitutional because it conflicted with the Smith Act (Congress sedition law). While Congress was debating legislation to overturn the decision to allow both state and federal sedition laws to coexist the Court overruled itself in Uphaus v. Weiman (1959). In Olmstead v. United States (1928) the Court held that wiretaps outside the premises of the accused was Constitutional since there was not any search and seizure. Chief Justice Taft handed down the opinion and opened the door for Congress to act to correct this loophole. Congress debated the issue for nearly 40 years and could never reach a compromise over the legalities of wiretapping. In Klatz v. United States (1967) the Court acted and overruled Olmstead v. United States. Another example was the overruling of Bowers v. Hardwick (1986) by Lawrence v. Texas (2003), but the Courts methodology in doing so was highly flawed and created bad law.

The bottom line is that decisions and majority opinions handed down by the Court are never final supreme laws of the land otherwise the Court would have no power to overrule precedent. The Court has no say over certain cases because of standing, mootness, ripeness, and political questions. Congress may also fail to comply with decisions by the Court or Congress may act to overturn Court rulings with new laws and statutes. The National Bank issue showed that the interpretation of the Constitution is a task completed by all three branches of government and not just the Court. All branches of government take an oath to protect and serve the Constitution and the Constitution itself says Congress shall pass no laws which violate the Constitution nor should they pass any ex post facto laws or bill of attainers. The only way for Congress and the Executive to accomplish this task is to understand and interpret the Constitution (It is not just the task of the Supreme Court and the judicial system). Sometimes Congress and the Court work well together to protect the rights of individuals. For example, in Katzenbach v. Morgan (1966) the Court upheld a federal statute as a proper interpretation of the Fourteenth Amendment to protect the voting rights of Puerto Ricans in New York.

Popular Sovereignty, the Executive, Congress, and SCOTUS: Battle for Supremacy (Part IV)

It may appear as if Congress and State laws are more responsible for upholding civil rights than the Court, but that is not entirely true. Congress passed the Fugitive Slave Act of 1793 even though it had no authority to do so. In Loving v. Virginia (1967) the Court correctly invalidated any state statutes which banned interracial marriages. In United States v. Lovett (1946) the Court held that an amendment attached to an appropriations bill in 1943 was unconstitutional because it violated the Bill of Attainer Clause. In this amendment, Congress withheld payment to certain government officials because they did not like their opinions. The Supreme Court ruling reinstated their pay, but the damage had been done because they had lost their jobs. In the famous Jencks v. United States (1957) case, the Court held that defendants were entitled to access of government files pertaining to their case. This time Congress acted with the Jencks Act to limit information a defendant may obtain (especially files with classified and national security information). Many would argue that Baker v. Carr (1964), Griswold v. Connecticut (1967), Eisenstadt v. Baird (1972), Roe v. Wade (1973), UC Berkley v. Bakke (1978), Grutter v. Bollinger (2003), Lawrence v. Texas (2003), Romer v. Evans (2007), and Obergefell v. Hodges (2015) are critical civil rights cases where the Court sided with individual rights. However, in all these cases the Court has gone over the top to invent protected groups, legalize reverse discrimination, and invent fictitious fundamental rights. The Court is trying to make up for past injustices by stomping on the Constitution. For instance, many will argue that some of the above cases violate the religious rights of tens of millions of Americans. Baker v. Carr violates the rights of rural farmers at the expense of urban dwellers. Bakke and Bollinger institute reverse discrimination practices as Constitutional. Inventing or creating rights for one at the expense of another is never the answer and it violates the equal protection clause of the Constitution.

Of course, there are cases where both Congress and the Court were complicit in violating the rights of citizens: Schenck v. United States (1917, free speech), Buck v. Bell (1927, sterilization), and Korematsu v. United States (1943, internment) to name a few of most egregious cases. In Red Lion Broadcasting Company v. FCC (1969), the Court upheld the FCC’s “Fairness Doctrine” requiring equal time for points of view on the radio violating the First Amendment rights of broadcast stations. The Court’s ruling in Miami Herald v. Tornillo (1974) contradicted the Fairness Doctrine by holding newspapers did not have to provide equal time to editorial opinions. By 1987, the FCC finally abolished the Fairness Doctrine realizing it was unconstitutional and a violation of the First Amendment. Article I, Section 9, Clause 7 states “A regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” Up until WWII, the government had done a fairly good job of being transparent about its expenditures with the American public. However, that changed, especially for intelligence departments. For example, the Central Intelligence Act (CIA) of 1949 made unvouchered and covert funding possible. The law was challenged several times for violating the Statement and Account Clause, but in United States v. Richardson (1974), the Court held Richardson had no standing to file suit. The Court said that since Richardson did not know how the money was being spent he had no standing. But that is a Catch 22. How could Richardson know how the money is being spent if Congress refused to adhere to the Statement and Account Clause and publish how the money is being spent? The Court also ruled that Richardson faced no injury because of the CIA statute, he therefore had no standing. But again, without knowing how the money was being spent it was impossible to say if Richardson faced injury from the CIA statute. The Court side-stepped the issue and protected Congress’s violation of the Statement and Account Clause by letting them withhold information from the public.

Standing to sue is the most popular of several legal scenarios where the Court may forgo deciding a case. Other scenarios include mootness, ripeness, and political questions. For someone to have standing to sue there must be a real injury or threatened injuries from allegations. In Frothingham v. Mellon (1923) the Court denied a taxpayer citizen the right to sue the federal government over appropriations to states for maternal and infant care (the claim was it violated the Tenth Amendment). The Court reasoned since the taxpayer’s contribution to the programs were minute and infinitesimal he faced no injury. Compare Frothingham to how the Court ruled in Wickard v. Filburn in 1941 where a farmer was denied the right to grow extra wheat on his farm to feed his family. The Court said even though the amount of wheat was small, it nevertheless impacted interstate commerce. In other words, government rights in Wickard and Frothingham were more important than individual rights. In Flast v. Cohen (1968) the Court incorrectly interprets the Establishment Clause to allow citizens the right to sue the Federal government to deny public funding for religious education. Flast is an outlier, because in Valley Forge College v. Americans United (1982) the Court held citizens could not sue the Federal Government for allowing federal property to go to a Christian college. In Allen v. Wright (1984) the Court held citizens have no standing to sue a government agency based on influences that agency may have on third parties. Yet, the Court routinely interferes over state matters that may affect a third party religious cause. In FEC v. Akins (1998) the Court held citizens could sue if a violation of federal law neglected them access to information. In Akins, unlike Richardson, the Court allowed citizens to sue the FEC to obtain campaign finance information. An interesting third circuit court ruling in New Jersey Physicians v. Obama (2011) found New Jersey physicians failed to show any injury to sue the President over the Affordable Care Act (ObamaCare). However, in Obergefell v. Hodges (2015, gay marriage case), none of the plaintiffs faced an injury: they were not fined or imprisoned but the Court did not see it that way. The liberal sect of the Court was eager to make a Landmark political statement and legislate from the bench.