Re: Justice Kennedy's Libertarian Revolution

[Fisch, William B.]

I take the point, but switching from DP to P&I as the "logical" home of substantive rights strikes me as far from simple in the Court's jurisprudence.  First, it isn't apparent that in fact the linguistically "procedural" character of the DP clause has produced a lesser protection for the substantive rights of citizens than would have been obtained if the same Court had chosen the "privileges and immunities" route.  I see no reason to suppose that the same back and forth would not have occurred about whether a particular right is "fundamental" and therefore protected by a special burden of justification; limiting the scope of the original P&I clause to rights that are "fundamental" has been a staple of its interpretation from the beginning.  In that sense I believe that the fact that the present home of general human rights protection is in the DP clause, while verbally awkward, is "not a big deal".   My concern is that a switch to 14th A. P&I now would not effect a broadening or a firming of the substantive scope of protected rights, but would bring the risk of a new limitation as to the range of protected persons.  Of course our court is capable, if it wishes to do so, of interpreting the term "citizen" as used in the P&I clause to mean "person" as it is used in the DP clause; but I must say that that seems a much greater stretch than finding a substantive dimension in the process that is "due".      What is at stake here, in my mind, is not primarily the power of *states* to abridge human rights, but the power of the *federal government* to do so.  Neither P&I clause purports to apply to them.  True, the EP clause protects "persons", and it has been interpreted as imposing strict scrutiny on *state* discriminations against non-citizens.  However, as we have already noted in an earlier thread, alienage -- unlike race, religion, etc., *as incorporated into the 5th Amendment DP clause(!)* -- is not a suspect classification for the feds, who need only a rational basis for discriminating against aliens.  I find it implausible that a court that takes that view will find new enlightenment in the 9th Amendment.  Moreover, if 14th A DP is relegated to procedure, why wouldn't 5th A DP follow suit, thus leaving out its EP dimension, its K-Clause-by-analogy, and so on?  Seems like a Pandora's box of worms to me!     In short: do we really trust a court that cannot agree on a rationale for the results they arrive at, to do this kind of grammatical "clean-up" without a "mess-up"? Bill Fisch    -----Original Message----- From: Dayan [mailto:[EMAIL PROTECTED] Sent: Monday, July 14, 2003 4:52 PM To: [EMAIL PROTECTED] Subject: Re: Justice Kennedy's Libertarian Revolution 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 -----Original Message----- From: Robert Justin Lipkin [mailto:[EMAIL PROTECTED] Sent: Saturday, July 12, 2003 3:50 PM To: [EMAIL PROTECTED] Subject: Re: Justice Kennedy's Libertarian Revolution In a message dated 7/12/2003 11:12:39 AM Eastern Daylight Time, [EMAIL PROTECTED] writes: No doubt I'm missing something, but doesn't the P&I argument still suffer from being limited to "citizens"?        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