Patterico's Pontifications


Selective Substantive Due Process

Filed under: Civil Liberties,Constitutional Law — Patterico @ 9:58 pm

Blogging at Captain’s Quarters, our friend Dafydd ab Hugh advocates a very selective form of substantive due process, here. He wants you to weigh in. He specifically invites commentary from Xrlq and The Angry Clam (and me).

6 Responses to “Selective Substantive Due Process”

  1. Posted. Go read it for legal historical goodness!

    Angry Clam (f05866)

  2. I am in general agreement with Dafydd.

    This is the correct way of how to interpret the US Constitution. In short, the basis for SDP is found were it ought to be: in the preamble.

    Paul Deignan (664c74)

  3. Paul- the Preamble isn’t law any more than the Declaration of Independence is.

    Angry Clam (f05866)

  4. AC,

    Yes, I know that. It is a preamble.

    It states the source of authority, scope, and purpose of the document.

    Don’t make the mistake of thinking of the Constitution as the be all and end all of how the people of the US should govern themselves. It cannot be. So the Constitution must define for itself its place in governance. That is the purpose of the preamble.

    Just as a textbook on higher mathematics has a preface to describe its place in the realm, the Constitution has a preamble to describe its place in human governance. One cannot apply the constitution meaningfully outside its limits. Remember, there can be a people without a government but there cannot be a government wihtout a people.

    Paul Deignan (664c74)

  5. Another thought: if we are a nation of laws amd not men, then government is limited by laws.

    What defines the broad limitation? The preamble.

    So while it cannot be called a law per se (the term has no meaning outside its scope), the Preamble is the single greatest limitation on government. The Constitution cannot be understood without understanding the Preamble. (and a text on topology cannot be used to understand the biology of invertebrates–no matter how great it is).

    Paul Deignan (664c74)

  6. Clam–

    Who cares if the Declaration or Preable are law? Neither are the Federalist Papers, but I’ll bet you that they get cited in Constitutional law books.

    In the context of the argument, all it has to be is a clearly agreed statement of understood, but Constitutionally unenumerated, rights for a decent 9th Amendment case to present. Even an originalist would have to consider it. Therefore a “right” stated in the declaration is relevant.

    Kevin Murphy (6a7945)

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