Now I don’t understand. You say that “the notion of ‘positive
protection’ is a perversion of the Constitution,” and therefore laws
withdrawing such protection – e.g., allowing the killing of burglars, thieves,
etc. caught in the act – are constitutionally permissible simply because of
that. But then I give examples of laws that withdraw positive protection
(e.g., “it shall not be a crime for squatters to kill anyone trying to
nonlethally evict them,” and you say that those laws violate due process.
Sounds to me like due process means a right not to have the law’s positive
protection withdrawn from you.
Again, to restate: My view is that one’s right to life,
liberty, and property, and the right to have one’s contracts enforced,
implicitly includes some degree of the general, traditionally recognized legal
protection that the law has long offered to life, liberty, property, and
contract – protection against the depredations of private parties. If the
state says “it’s not a crime to kill people who are doing or who have done X,”
“it’s not a crime to lock up people who have done X,” “it’s not a crime or a
tort to take property from people who are doing X,” or “it’s not civilly
actionable to breach contracts of form X,” then it may well be denying life,
liberty, or property without due process (or impairing the obligation of
contracts) precisely because denial of positive protection can be a denial of
due process.
Indeed, the difference between “it shall not be a crime to kill
someone who is breaking into your house” and “it shall not be a crime for
squatters to kill anyone trying to nonlethally evict them” cannot be that one
involves loss of positive protection and the other doesn’t (both do), or that
one is a violation of due process and the other isn’t (since that’s just a
legal conclusion). The difference is very great morally, and it is very great
in terms of the traditional recognition of the right to use deadly force in
such situations. But it’s not a positive protection vs. negative protection
difference.
Eugene
Phil Lee writes, responding to me:
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)
[Clearly we aren't on the same page if you haven't seen my writings rejecting
their Constitutionality]
: “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?
All these "it shall not be a crime . . ." examples appear to violate the due
process rights of individuals. I'm actually embarrassed that I have to suggest
that laws are for setting limits to behavior of individuals, not to encourage
anti-social behavior (despite examples you might suggest to the contrary --
e.g. your beach example is real).
While you seem to want to involve "positive protection" in your examples, I
think this concept is as half-baked as a Constitutional issue as the
"collective right" for the 2nd Amendment was. All these hypotheticals violate
due process and need no additional reasons to fail Constitutional muster.
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