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

As Marshall mentioned, today is Constitution Day. So, here's some food for thought from John Jay, who later became the first Chief Justice:

It is the undoubted Right and unalienable Privilege of a Free man not to be divested, or interrupted in the innocent use, of Life, Liberty or Property, but by Laws to which he has assented, either personally or by his Representatives. This is the Corner Stone of every free Constitution, and to defend it from the Iron Hand of the Tyrant of Britain, all America is now in arms....

He wrote that in 1778, during the American Revolution. Our Constitution's "Corner Stone" is called the Due Process Clause. Unfortunately, judges have now taken it upon themselves to view that great Clause as a license to deprive some people of liberty in order to expand the liberty of others, notwithstanding statutes to the contrary.

The Supreme Court acknowledges how rare it is “that one disposition can expand a ‘liberty’… without contracting an equivalent ‘liberty’ on the other side.� Yet, that acknowledgment hasn't stopped the Court from going right ahead and doing it (e.g. see here). John Jay must be spinning.

Likewise, the Court acknowledges that its use of the Due Process Clause to strike down substantive statutes violates the preconstitutional understanding:

[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.

But again, this acknowledgment hasn’t stopped the Court from going right ahead with its doctrine of substantive due process.

Alexander Hamilton recognized in 1787 that, “the words ‘due process’ have a precise technical import….� Yet, most members of today's Supreme Court apparently prefer a much broader meaning. So much for the cornerstone of our Constitution.

GLOSSARY:

Due Process = process owed according to the law of the land.

Process = all of the proceedings in a cause of action.

Law of the Land = common law, statute law, customary law, civil law, federal law, state law, constitutional law, treaty law, and all other laws in force throughout the United States.

Supreme Law of the Land = the Constitution, and the laws of the United States made in pursuance thereof, and all treaties made under the authority of the United States.