I agree that DeShaney says that failure to adequately enforce
the law isn’t a due process violation. But I don’t think that disposes of the
question whether a law stripping classes of people of protection against
murder, kidnapping, theft, etc. is a due process violation.
As to “the notion of ‘positive protection’ [being] a perversion
of the Constitution,” what do you think of the Contracts Clause? Say that a
state says “we will refuse to enforce contracts of type X.” That is a denial
of positive protection for contracts. Yet under the right circumstances it is
a violation of the Constitution.
Or say that a state says “it shall not be a crime or a tort for
anyone to go on privately owned beaches.” That is a denial of positive
protection for property. Yet it may well be a taking of property, cf. Kaiser
Aetna; Loretto Teleprompter, precisely because property rights presuppose
positive protection from the law (however imperfectly that law may be enforced
by the police).
Likewise, consider examples that I gave and that so far no-one
has said are constitutional (though perhaps you think they are): “It shall not
be a crime for squatters to kill anyone trying to nonlethally evict them.” “It
shall not be a crime for anyone to steal from diamond merchants.” “It shall
not be a crime for anyone to kill anyone who has been accused of rape.” “It
shall not be a crime for anyone to lock up indefinitely anyone who has been
accused of rape but found not guilty as a result of a technicality.” All of
them involve denial of positive protection, the protection that all of us enjoy
because killing us, kidnapping us, and stealing from us is criminalized. But
is it really the case that such legislative stripping of the traditional
protection offered to life, liberty, and property isn’t a denial of life,
liberty, and property without due process?
Eugene
From: Phil Lee [mailto:[email protected]]
Sent: Thursday, May 09, 2013 8:40 AM
To: Volokh, Eugene; [email protected]
Subject: Re: New approach
But the USSC has held that the government has no duty to act in general, only
in limited cases such protecting witness or people in custody. So, your claim
"you can't say . . . " is wrong.
The notion of "positive protection" is a perversion of the Constitution and not
the basis for making your hypotheticals illegal acts for Congress. This
"positive protection" idea appears nowhere in the Constitution, but due process
and separation of powers are in it and your hypotheticals violate both by
creating laws to decide legal disputes and to reduce the people to a state of
nature wherein life and property are not protected. Also, denial of due
process is an act of government, denial of a right of an individual.
Individuals may obstruct justice or murder etc., but individuals do not deny
due process by the act of self-defense. And to suggest that such acts being
not criminalized is a denial of due process is wrong too since such acts are
investigated, unless you believe due process is delivered by trials only.
Phil
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