Re: Justice Kennedy's Libertarian Revolution

[Robert Justin Lipkin]

In a message dated 7/15/2003 9:54:10 AM Eastern Daylight Time, [EMAIL PROTECTED] writes:

Miller, I believe, does not declare that due process does not protect substantive rights.

       I think there's an important distinction between (1) the due process protecting independently stated substantive rights and (2) the clause containing implicit, substantive rights. The point of process, as Mark states, is to regulate government action in denying or otherwise modifying the _expression_ or practice of substantive rights or interests. The issue of "substantive due process," at least as I understand it, is whether the 14th Amendment's due process clause contains unenumerated, substantive rights. Accordingly, the Framers clearly expected due process to protect substantive rights in (1), the question is whether the evidence shows that they also thought due process protected substantive rights as in (2)?

       At any rate, the question of whether it is worth resurrecting the privileges or immunities clause in contemporary constitutional jurisprudence is whether that clause, on the one hand, or the due process clause, on the other, is a better home for unstated, substantive rights.

Bobby Lipkin
Widener University School of Law
Delaware