This is my first posting, and I was loath to begin here, but
the simple point Professor Fisch is missing is that while life, liberty and
property are substantive rights, that they may be deprived only by due process
makes clear that the DP clauses are procedural by any fair reading. Since
I don't claim any particular wisdom, I'll rely on Ely's quip that substantive
due process is like green pastel redness. It's not a big deal, but I too
think the Slaughterhouse Cases were wrongly decided, and though we've come a
long way down the due process path, there is no reason that we couldn't clean up
the mess by way of overruling Slaughterhouse Cases and putting our enumerated
and Ninth Amendment rights where they should have been all along. As for
the citizenship/personhood dichotomy, the equal protection clause, as I recall
it, refers to persons, not to citizens.
Marshall Dayan
North Carolina Central University School of
Law
>>> [EMAIL PROTECTED] 07/13/03 10:03PM >>> Perhaps I'm missing your point in turn, but I'm having
trouble seeing the two clauses as sharply distinguishable -- even
linguistically -- in terms of substance and procedure. There is nothing
inherently substantive about "privileges and immunities", which can be
procedural as well as substantive (i.e., can relate to judicial process as well
as to substantive right), and both P&I clauses have been so
interpreted. The term "due process" can be understood as purely
procedural, of course, but the full DP clauses both refer to deprivation of
"life, lilberty or property", which are clearly substantive concepts, and I
would think that a "libertarian" revolution can find just as much nourishment in
the clause that mentions "liberty" as in one that speaks only in terms of
"privileges and immunities". I understand that there is some evidence that
some proponents of the 14th Amendment P&I clause thought that it could serve
as an incorporator of more general fundamental rights; but my specific
point is that that clause is a poor vehicle for modern human rights law, and
that we should hope that the Court won't now decide to
use it as such. A legal system that makes fundamental human
rights dependent on citizenship seems to me to be regressive,
regardless of how privileged its citizens are.
Bill
Fisch
I'm not sure how this is relevant to the point I hoped to make about resurrecting the privileges or immunities clause. I wasn't addressing the scope of the clause--to whom it applies, citizens or persons--but rather whether a "libertarian revolution" would better be conceptualized in terms of the privileges or immunities clause which I understand to include substantive rather than procedural rights. In my view, it is necessary to jump through the hoops to explain how the due process clause can house substantive components, and even if it does, how does one know which substantive components are housed there. With the privileges or immunities clause, at least as I understand it, whatever rights it houses (and of course the problem of determining which rights are there remains a problem) are substantive. Even if one understand the clause to apply to citizens only, substantive liberty seems more closely associated with privileges or immunities than with due process. I hope I've understood your comment correctly, and that this reply is responsive to you post. Bobby Lipkin Widener University School of Law Delaware |
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