ConfirmThem

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

"I think the framers, when they used broad language, like liberty, like due process ... were crafting a document that they meant to apply down the ages ... to changing conditions."
---John Roberts, during testimony to the Senate (September 14, 2005)

“The words ‘due process’ have a precise technical import….�
---Alexander Hamilton, in a speech to the New York legislature (February 6, 1787)

“[T]he words lex terrae, which are used in Magna Charta are explained by the words, due process of law; and the meaning of the statute is, that all commitments must be by a legal authority.�
---England’s highest court, in a 1704 case.

“Due process is process due according to the law of the land.�
---U.S. Supreme Court, in an 1875 case.

“If I thought that ’substantive due process’ were a constitutional right rather than an oxymoron, I would think it violated by bait-and-switch taxation.�
---Justice Scalia joined by Justice Thomas, in 1994.

"ALL legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives."
---U.S. Constitution, first sentence after the preamble.

UPDATE: Later in his Senate hearing, Judge Roberts said this about due process:

[O]ur legal system insists upon the observance of ... basic requirements of --- I don't want to say due process; that's a technical term --- but that's the principle that is being applied. That goes a long way to explaining how these agencies have been accepted into the constitutional system, because they've been required under principles of administrative law, to comply with these basic precepts of procedural regularity.

Of course, those principles can be applied by Congress, without need for the Court to conjure them out of the Fifth Amendment, where they do not exist.