Re: Justice Kennedy's Libertarian Revolution

[Mark Graber]

I would modify this a bit.  Miller, I believe, does not declare that due process does not protect substantive rights.  He simply declares this is obviously not a due process case.  I.e., even if taking from A and giving to B violates due process, regulating slaughterhouses does not.  My sense of the prewar (laregely state) due process precedents is that Miller was right, but that the matter needed a good deal more argument that he gave.   MAG >>> [EMAIL PROTECTED] 07/15/03 09:48AM >>>        In light of Mark Graber's evidence--that the Framers believed due process to contain substantive content-- Slaughterhouse deserves additional opprobrium. If  one takes Justice Miller's understanding of the due process clause as "a restraint upon the power of the States" in what I would think could be read only as a processual right, then Justice Miller badly abused the intent of the Framers regarding both the privileges or immunities clause and the due process clause. Erroneous interpretations of two out three provisions of the same constitutional amendment is not a good track record.  Bobby Lipkin Widener University School of Law Delaware