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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Tuesday, July 13, 2010 ::
    "Unable to identify the Clause's full scope"

    In describing the Court's 14th Am Due Process jurisprudence -- and here it's the Court speaking, not just the plurality -- the Court notes:
    The Court used different formulations in describing the boundaries of due process. For example, in Twining, the Court referred to “immutable principles of justice which inhere in the very idea of free government which no member of the Union may disregard.” 211 U. S., at 102 (internal quotation marks omitted). In Snyder v. Massachusetts, 291 U. S. 97, 105 (1934), the Court spoke of rights that are “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” And in Palko, the Court famously said that due process protects those rights that are “the very essence of a scheme of ordered liberty” and essential to “a fair and enlightened system of justice.” 302 U. S., at 325. [Slip op. at 12]
    O-o-o-o-kay, and those formulations (which those of us who have to traffic in substantive due process have in "macros" on our keypads) are more precise than what Petitioners and commentators offered in regard to the Privileges or Immunities Clause -- how?

    Yes, we get it -- Petitioners and pro-P/I scholars have not identified the P/I Clause's "full scope." And so I have to spend another year telling students that in identifying the parameters of 14th Am Due Process, they have to work with crystal-clear, line-drawing formulations like "immutable principles of justice," "the very idea of free government," "so rooted...as to be ranked as fundamental," "very essence of a scheme of ordered liberty," and "fair and enlightened." Guys, I'm dyin' out here!

    The only eye-of-newt in this cauldron that has any links to anything tangible is the portion of the Snyder formulation that alludes to "the traditions and conscience of our people." And -- of course, and not that I'm bitter or anything -- this is the only one of the above-mentioned formulations that the Court has specifically rejected as a tool of 14th Am Due Process analysis. Justice Scalia offered it, along with a methodology for deploying it, in his plurality opinion in Michael H. v. Gerald D., esp. footnote 6. Most of the Court declined to accept it, and majorities -- while reformulating it with no sign of understanding it* -- rejected it in Planned Parenthood v. Casey and in Lawrence v. Texas.

    (*"The Court destroys the proposition, evidently meant to represent my position, that 'liberty' includes 'only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified,' ante, at 5 (citing Michael H. v. Gerald D., 491 U.S. 110, 127, n. 6 (1989) (opinion of Scalia, J.). That is not, however, what Michael H. says; it merely observes that, in defining 'liberty,' we may not disregard a specific, 'relevant tradition protecting, or denying protection to, the asserted right,' 491 U. S., at 127, n. 6. But the Court does not wish to be fettered by any such limitations on its preferences....." Planned Parenthood v. Casey, Scalia, J., dissenting)

    So the one formulation that isn't a sky-hook isn't realistically on the table; only the sky-hooks are, and we are asked to accept them, in place of P/I, because P/I would be vague, and we'd be "unable to identify it's full scope." (And this time even Justice Scalia prefers the guarenteed vagueness of Due Process to the presumed vagueness of P/I -- though one assumes he, at least, would not exclude the hard-edged, Michael H. version of tradition-based reasoning from the Due Process repertory).

    I'll. Retire. To. Bedlam.

    :: David M. Wagner 10:33 PM [+] ::

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