Recent works… A Story of Privileges and Immunities: From Medieval Concept to the Colonies and United States Constitution, 34
Campbell L. Rev. 7 (2011) ( @ SSRN).
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The due process language of the Fifth and Fourteenth Amendment traces back to Chapter 39 of the Magna Carta. Throughout the later middle ages, the due process concept was linked to the king’s arbitrary exercise of power. The medieval king took executive enforcement action unjustly without judgment as the law or custom of the land required. Thus, the king, or in modern times the executive, deprived a person of life, liberty, or property without following the legal process required by enacted law.[1]
This due process concept was reenacted throughout the colonial period. As a component of an Englishmen’s liberty, the Founding Fathers incorporated the English due process concept into state constitutions and into the federal Bill of Rights.
In a republican form of government, it is difficult to determine what the founding generation intended for the Due Process Clause, or for that matter the entire Bill of Rights. The simplest interpretation is that the Clause would restrict executive enforcement action affecting life, liberty, or property outside of prescribed law. A second possibility is that the Clause provided a common-law guide for judicial process or implementation of a law when the law itself or the Constitution did not otherwise direct the process. As a quasi-agent of the executive, a judge too can violate a person’s due process rights by depriving a person of life, liberty, or property outside of the law. The notion that the simple phrase “due process of law” authorized a judicial inquiry into the merits of the legislation itself is beyond belief. How could one ever apply the Due Process Clause to validly enacted legislation? When the Framers were concerned with legislative abuses, they put specific restrictions and checks and balances into the Constitution.
…continued…
[The principle that all persons by age or sex, birth or color, origin or condition, are equal before the law,] as a broad general principle, such as ought to appear in a declaration of rights, is perfectly sound; it is not only expressed in terms, but pervades and animates the whole spirit of our constitution [continued...]
However absolute the right of an individual may be, it is still in the nature of that right that it must bear a portion of the public burdens and that portion must be determined by the legislature. This vital power may be abused, but the Constitution of the United States was not intended to furnish [continued...]
The Thirteenth Amendment ended slavery, but that amendment said nothing of the civil, political, and social status of newly freed slaves. Attempting to address this deficiency and establish and protect several key citizenship rights, the 39th Reconstruction Congress passed the Civil Rights Act of 1866 (CRA). Section One of the CRA provided:
That all persons born [continued...]
“Every statute is presumed to be constitutional. The courts ought not to declare one to be unconstitutional, unless it is clearly so. If there is doubt, the expressed will of the Legislature should be sustained.”
“We know that this is a power which may be abused; but that is no argument against its existence. For [continued...]
While the Anti-Federalists may have been alarmists with respect to congressional overreaching under the proposed constitution, there is little room for doubt that the Anti-Federalists nailed the Supreme Court problem directly on its head. Regarding the judicial branch, Brutus commented in 1787 that it is easy to see that “these courts will eclipse the dignity, and take away from the respectability, of the state courts[,] . . . and in the course of human events it is to be expected, that they will swallow up all the powers of the courts in the respective states.” [continued...]
How we take e-mails and texting for granted…
Express Riders and Ratification
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The delegates to the Philadelphia Convention of 1787 were very concerned, nearly to the level of paranoia, about putting too much power in one place—other than that power placed in the people themselves. The easiest way to diffuse power was to place it in many hands and provide for checks and balances in the written [continued...]
In a state of nature every individual pursues his own interest; in this pursuit it frequently happened, that the possessions or enjoyments of one were sacrificed to the views and designs of another; thus the weak were a prey to the strong, the simple and unwary were subject to impositions from those who were more [continued...]
I wish that parties in the same-sex marriage briefs and arguments would have confronted Loving and the Court’s use of the fictional three-tier-plus framework. Advocates avoided Loving and Brown because the results in those cases match with socially preferred outcomes. In this manner, the modern American legal system seems to treat social outcomes as a [continued...]
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