ConfirmThem

By AndrewHyman Posted in Analysis and Predictions — Comments () / Email this page » / Leave a comment »

Honest Abe once said that the doctrine underlying the Supreme Court's most controversial social engineering cases is a load of crap. But, Lincoln put it a bit more delicately than that:

"The Constitution itself impliedly admits that a person may be deprived of property by 'due process of law,'" wrote Lincoln.

Nowadays, Supreme Court nominees are required to affirm their allegiance to the opposite proposition. Will Ms. Miers go along with this new trend, or will she go with the common sense of Lincoln? And why should we have to wait for the hearings to find out ?

I don't think Quin, Feddie, and others ought to be so sure that Ms. Miers won't align herself with Justices Scalia and Thomas, who have both agreed with Abraham Lincoln on this issue.

Incidentally, Lincoln wrote those words in 1858, apparently while preparing for a debate with Stephen Douglas in Jonesboro, Illinois. During that Jonesboro debate, Douglas was first up, and Lincoln was second up, in rebuttal. Douglas didn't give Lincoln a chance to discuss due process (or much else), but Lincoln did hold on to his notes for the debate. He left them to his most trusted aides who recorded them for posterity:

The Constitution itself impliedly admits that a person may be deprived of property by "due process of law," and the Republicans hold that if there be a law of Congress or territorial legislature telling the slaveholder in advance that he shall not bring his slave into the Territory upon pain of forfeiture, and he still will bring him he will be deprived of his property in such slave by "due process of law." And the same would be true in the case of taking a slave into a State against a State constitution or law prohibiting slavery.

Lincoln was right. And so was the U.S. Supreme Court when it unanimously admitted this in 1985:

[W]e must always bear in mind that the substantive content of the [Due Process] Clause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments.

Will Ms. Miers insist upon interpreting the Constitution in a way that is, "suggested neither by its language nor by preconstitutional history"? We have a right to know.