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Marbury v Madison.

sangha said:
Kal and I are discussing anti-discrrimination laws and whether or not they violate the Equal Protection clause
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I understand that. I also asked you if you were relying on the original intent of the Fourteenth Amendment or twentieth century Supreme Court's creation.
 
Tennyson said:
I understand that. I also asked you if you were relying on the original intent of the Fourteenth Amendment or twentieth century Supreme Court's creation.
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The original intent of the constitution is for SCOTUS to determine its meaning
 
sangha said:
SCOTUS disagrees
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As I stated, are you relying on original intent or how a twentieth century Supreme Court ruled? There is a marked difference as one does not require thought or knowledge. This is not a slight, but just an honest difference between the two.

If you want to rely on twentieth century Supreme Court rulings, are you prepared to defend the rulings on a constitutional basis? That is what I am asking. If you want to rely on a Supreme Court ruling but cannot defend it on its constitutional basis, then there is not much to debate because how a court ruled is just a simple fact that cannot be disputed.
 
sangha said:
Asked and answered
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Just to clarify so that I know whether or not to expect a response from you regarding my response to your posts. You are not relying on the intent of the Constitution, the Bill of Rights, or other amendments, but are relying solely on Supreme Court rulings and you will not defend the rulings on their constitutional bases. Is that correct?
 
Tennyson said:
I have read law reviews referencing Scott and the Slaughter House cases. They are outliers and have no compelling evidence to support their conclusions. Lochner is the first time the doctrine was used.
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I have a different understanding of that history. In his separate dissenting opinion in the Slaughter-House Cases, a 5-4 decision, I think Justice Bradley clearly stated the central idea of the doctrine of substantive economic due process more than thirty years before Lochner:


The granting of monopolies, or exclusive privileges to individuals or corporations, is an invasion of the right of others to choose a lawful calling, and an infringement of personal liberty. It was so felt by the English nation as far back as the reigns of Elizabeth and James . . . . In my view, a law which prohibits a large class of citizens from adopting a lawful employment, or from following a lawful employment previously adopted, does deprive them of liberty as well as property, without due process of law. Their right of choice is a portion of their liberty; their occupation is their property. (my italics)


The Court in Lochner cited Allgeyer v Louisiana (1897) as authority for the proposition that "The general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution." Recognizing the other side of the argument, Lochner cited Mugler v. Kansas (1887) for the proposition that "Both property and liberty are held on such reasonable conditions as may be imposed by the governing power of the State in the exercise of [its police] powers, and with such conditions the Fourteenth Amendment was not designed to interfere." The Lochner majority further acknowledged that "This Court has recognized the existence and upheld the exercise of the police powers of the States in many cases . . . . Among the later cases in which the state law has been upheld by this court is that of Holden v. Hardy."

Allegeyer, Mugler, and Holden were all important cases in the Court's development of the substantive due process doctrine. So were Munn v. Illinois (1876); Santa Clara County v. So. Pacific Railway (1886); and Chicago, Milwaukee, and St. Paul Railway Co. v. Minnesota (1890). Lochner, in 1905, may mark the point at which the doctrine of substantive economic due process first burst into full bloom, but the buds had been forming during the three decades before that.
 
Tennyson said:
Just to clarify so that I know whether or not to expect a response from you regarding my response to your posts. You are not relying on the intent of the Constitution, the Bill of Rights, or other amendments, but are relying solely on Supreme Court rulings and you will not defend the rulings on their constitutional bases. Is that correct?
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The intent of the constitution is to rely on SCOTUS decisions. It is you who is abandoning constitutional bases.
 
matchlight said:
I have a different understanding of that history. In his separate dissenting opinion in the Slaughter-House Cases, a 5-4 decision, I think Justice Bradley clearly stated the central idea of the doctrine of substantive economic due process more than thirty years before Lochner:


The granting of monopolies, or exclusive privileges to individuals or corporations, is an invasion of the right of others to choose a lawful calling, and an infringement of personal liberty. It was so felt by the English nation as far back as the reigns of Elizabeth and James . . . . In my view, a law which prohibits a large class of citizens from adopting a lawful employment, or from following a lawful employment previously adopted, does deprive them of liberty as well as property, without due process of law. Their right of choice is a portion of their liberty; their occupation is their property. (my italics)


The Court in Lochner cited Allgeyer v Louisiana (1897) as authority for the proposition that "The general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution." Recognizing the other side of the argument, Lochner cited Mugler v. Kansas (1887) for the proposition that "Both property and liberty are held on such reasonable conditions as may be imposed by the governing power of the State in the exercise of [its police] powers, and with such conditions the Fourteenth Amendment was not designed to interfere." The Lochner majority further acknowledged that "This Court has recognized the existence and upheld the exercise of the police powers of the States in many cases . . . . Among the later cases in which the state law has been upheld by this court is that of Holden v. Hardy."

Allegeyer, Mugler, and Holden were all important cases in the Court's development of the substantive due process doctrine. So were Munn v. Illinois (1876); Santa Clara County v. So. Pacific Railway (1886); and Chicago, Milwaukee, and St. Paul Railway Co. v. Minnesota (1890). Lochner, in 1905, may mark the point at which the doctrine of substantive economic due process first burst into full bloom, but the buds had been forming during the three decades before that.
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I understand where you are coming from and respect your thought out opinion. There is no doubt that there were actors attempting to create federal substantive rights where there were no federal substantive rights in the nineteenth century.

In the Slaughter-House cases, Bradly was in dissent and was meandering around substantive rights, but most of his meandering was obiter dictum, but his framing was in the context of procedural due process. He even through in the unalienable rights of the Declaration of Independence, “Rights to life, liberty, and the pursuit of happiness,” which was a little odd because the Declaration of Independence did not beget the Constitution; it beget the Articles of Confederation.

Regarding the nineteenth century cases referenced in Lochner, they were framed in the context of procedural due process with a touch of substantive rights. Lochner swooped up all of the references and created and applied the concept and doctrine of substantive due process with no constitutional basis. Lochner was the culmination of mixing it all together and creating a Frankenstein’s Monster.

Lochner is one of the defining cases of why stare decisis and case law should be prohibited in constitutional matters they are antipodal to the text and intent of the Constitution and are in direct violation of a federal justice’s oath of office.

This circles around to the Fourteenth Amendment and substantive due process. Even discarding my views and using yours, the due process clause of the Fourteenth Amendment is procedural and not substantive. The debates of the 39th Congress framed the due process clause and the equal protection clause as procedural in nature. If there was any take-away from the 39th Congress regarding substantive rights, it was in the debates regarding the comity clause, which circling back around leads us back to the Slaughter-House cases that shot that down. The contribution to substantive due process by the Slaughter-House cases was shooting down the comity clause and causing a twenty-five something year scramble to squeeze substantive rights out of the Fourteenth Amendment by creating out of thin air substantive due process.
 
sangha said:
The intent of the constitution is to rely on SCOTUS decisions. It is you who is abandoning constitutional bases.
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No disrespect, but I do not understand what you are trying to say.
 
matchlight said:
I have a different understanding of that history. In his separate dissenting opinion in the Slaughter-House Cases, a 5-4 decision, I think Justice Bradley clearly stated the central idea of the doctrine of substantive economic due process more than thirty years before Lochner:


The granting of monopolies, or exclusive privileges to individuals or corporations, is an invasion of the right of others to choose a lawful calling, and an infringement of personal liberty. It was so felt by the English nation as far back as the reigns of Elizabeth and James . . . . In my view, a law which prohibits a large class of citizens from adopting a lawful employment, or from following a lawful employment previously adopted, does deprive them of liberty as well as property, without due process of law. Their right of choice is a portion of their liberty; their occupation is their property. (my italics)


The Court in Lochner cited Allgeyer v Louisiana (1897) as authority for the proposition that "The general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution." Recognizing the other side of the argument, Lochner cited Mugler v. Kansas (1887) for the proposition that "Both property and liberty are held on such reasonable conditions as may be imposed by the governing power of the State in the exercise of [its police] powers, and with such conditions the Fourteenth Amendment was not designed to interfere." The Lochner majority further acknowledged that "This Court has recognized the existence and upheld the exercise of the police powers of the States in many cases . . . . Among the later cases in which the state law has been upheld by this court is that of Holden v. Hardy."

Allegeyer, Mugler, and Holden were all important cases in the Court's development of the substantive due process doctrine. So were Munn v. Illinois (1876); Santa Clara County v. So. Pacific Railway (1886); and Chicago, Milwaukee, and St. Paul Railway Co. v. Minnesota (1890). Lochner, in 1905, may mark the point at which the doctrine of substantive economic due process first burst into full bloom, but the buds had been forming during the three decades before that.
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I always liked this exchange between Scalia and Otis McDonald’s lawyer Alan Gura in oral arguments in McDonald v Chicago:

JUSTICE SCALIA: Why are you asking us to overrule 140 years of prior law, when you can reach your result under substantive due process? I mean, unless you are bucking for a place on some law school faculty.
(Laughter.)

MR. GURA: No. No. I left law school some time ago and this is not an attempt to . . . return.

JUSTICE SCALIA: What you argue is the darling of the professoriate, for sure, but it's also contrary to 140 years of our jurisprudence. Why do you want to undertake that burden instead of just arguing substantive due process, which as much as I think it's wrong, . . . even I have acquiesced in it?

(Laughter.)
 
Tennyson said:
I always liked this exchange between Scalia and Otis McDonald’s lawyer Alan Gura in oral arguments in McDonald v Chicago:

JUSTICE SCALIA: Why are you asking us to overrule 140 years of prior law, when you can reach your result under substantive due process? I mean, unless you are bucking for a place on some law school faculty.
(Laughter.)


MR. GURA: No. No. I left law school some time ago and this is not an attempt to . . . return.

JUSTICE SCALIA: What you argue is the darling of the professoriate, for sure, but it's also contrary to 140 years of our jurisprudence. Why do you want to undertake that burden instead of just arguing substantive due process, which as much as I think it's wrong, . . . even I have acquiesced in it?

(Laughter.)
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Justice Scalia showing his wit, as he often did. I don't like substantive due process any better than he did, and the Court stopped applying it to economic regulations in 1937.

But in 1923, in Meyer v. Nebraska, it began a line of cases in which the concern about a person's liberty of contract--the right to follow "a lawful employment," as Justice Bradley had put it in his Slaughter-House dissent--melded with, and eventually dissolved into, issues of family and privacy. In Meyer, the Court held a state law violated the due process guarantee of the Fourteenth Amendment by prohibiting a teacher from instructing students in German, partly because it tended to put him out of work. But the Court was also concerned with the right of teachers and parents to decide what course of education was best for young students.

Meyer was followed by decisions which expanded this idea that the Fourteenth Amendment Due Process Clause's guarantee of liberty is related to a general right to privacy--that it extends to personal decisions about procreation, traditional marriage, abortion, the right of members of an extended family to live together, the right to terminate life-prolonging medical treatments, the right to engage in homosexual sodomy, and last year, same-sex marriage.

The Court may have abandoned substantive economic due process in 1937, but when it comes to intimate, personal matters, there has been no shortage of justices who love SDP. As the Court itself has discussed, the big problem with applying substantive due process is that it allows judges to substitute their personal view of what is fundamentally fair for the view of majorities of voters. And since SDP decisions are necessarily subjective, they call into question the Court's authority as an objective arbiter of the law.
 
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