1512
to 2006
Thomas Jefferson’s “Laws
of Nature and of Nature’s God”[1]
that endowed our unalienable rights, are expressed in the first nine amendments
of the Bill of Rights of the Constitution of the United States of America.[2]
The right to life,
liberty, and the pursuit of happiness that exists at liberty’s core — of which Jefferson
wrote in the Declaration of Independence, and which was then textually
enumerated in the Bill of Rights — survives today mostly in watered-down
versions. The First Amendment protection of speech is riddled with exceptions
for defamation, pornography, fighting words, commercial speech and more. The
Second Amendment right to bear arms has been narrowed into protecting
principally only gun ownership in one’s residence. The Fourth Amendment
requirement of probable cause yielded to the exception for “plain view” and
“expectation of privacy.” The Fifth Amendment’s promise that no private
property may be taken for public “use” has been amended by Supreme Court
decisions so that public “use” now means “public purpose.” Other amendments,
such as the Sixth and Eighth, have suffered the same fate.
How did this happen?
At the Constitutional
Convention of 1787, there was great concern among the delegates about the
creation of a powerful federal government.
The subject of a bill of
rights raged among the citizenry, in the state ratification debates, and in the
press. Much of the opposition to the proposed Constitution was based on its
lack of a bill of rights. Alexander Hamilton’s Federalist 84 made a
convincing case against a bill of rights.
It has been several
times truly remarked that bills of rights are, in their origin, stipulations
between kings and their subjects, abridgements of prerogative in favor of
privilege, reservations of rights not surrendered to the prince. Such
was Magna Carta obtained by the barons, sword in hand, from King John. Such
were the subsequent confirmations of that charter by succeeding princes. Such
was the Petition of Right assented to by Charles I, in the beginning of
his reign. Such, also, was the Declaration of Right presented by the Lords and
Commons to the Prince of Orange in 1688, and afterwards thrown into the form of
an act of parliament called the Bill of Rights. It is evident, therefore, that,
according to their primitive signification, they have no application to
constitutions professedly founded upon the power of the people, and executed by
their immediate representatives and servants. Here, in strictness, the
people surrender nothing; and as they retain everything they have no need of
particular reservations. “WE, THE PEOPLE of the United States, to secure
the blessings of liberty to ourselves and our posterity, do ordain and establish
this Constitution for the United States of America.” Here is a better
recognition of popular rights, than volumes of those aphorisms which make the
principal figure in several of our State bills of rights, and which would sound
much better in a treatise of ethics than in a constitution of government.
(My italics.)
In other words, Hamilton
argued that the Constitution only delegated power, so there was
no reason expressly to reserve rights. If they were expressly reserved,
the argument would then be that any rights not expressly reserved were thus not
protected. Do not make a list, Hamilton cautioned, because rights not enumerated
would arguably not exist.
Hamilton’s argument
prevailed, and the Constitution was ratified without a bill of rights. Then, in
the First Congress, James Madison brilliantly solved Hamilton’s “do not
enumerate rights” problem by authoring what became the Ninth Amendment (see below).
At the First Congress
Madison also introduced an amendment designed to protect the rights of
conscience, press, and criminal jury trial against violation by the states. This was an explicit attempt to
reach state action via prohibitions
in the federal Bill of Rights. Significantly, his proposal was rejected with
the consequence that the enacted Bill of Rights contains no prohibitions
against the states. Indeed, the First Amendment begins with the unequivocal
statement that “Congress shall make
no law. . . .” (My italics.)
Considering the explicit
rejection of Madison’s “state” amendment, and the first word of Article I of
the Bill of Rights (“Congress”), and the universal understanding in 1791 about
the federal nature of Amendments First through Nine, there is no doubt
that the Bill of Rights was intended, and written, to apply only to the federal
government.
Indeed, in the 1833 case
of Barron v. Baltimore,[3]
some forty-two years after the
promulgation of the Bill of Rights in 1791, the Supreme Court expressly ruled
that the Bill of Rights applied only to the federal government. There
were still judges and others who were alive in 1791 when the First Congress
adopted the Bill of Rights. They knew very well what its purpose was.
Among the various
Amendments, the Fifth provided that “[n]o person shall . . . be deprived of
life, liberty, or property without due process of law . . . .” (My
italics.)
The source of the Fifth
Amendment’s Due Process Clause was Magna Carta’s 1215 stipulation
39 (of 63) where the English King John agreed that “[n]o freemen shall be taken
or imprisoned or disseised [dispossessed] or exiled or in any way destroyed,
nor will we go upon him nor send upon him, except by the lawful judgment of his
peers or by the law of the land.” (My
italics.)
According to Black’s Law Dictionary, “[b]y the law of
the land is most clearly intended the general law which hears before it
condemns, which proceeds upon inquiry, and renders judgment only
after trial. * * * The meaning is that every citizen shall hold his life,
liberty, property, and immunities under the protection of general rules which
govern society.” This definition speaks only of procedure, not
substance. How a law is to be enforced, not whether it is proper, legal,
or constitutional. Due process/Law of the land speaks of process,
not substance.
Indeed, it was from the principle
of “by the law of the land” that evolved the early concept of “due process
of law”: “No man of what state or condition he be, shall be put out of his
lands or tenements nor taken, nor disinherited, nor put to death, without he be
brought to answer by due process of law,” said a 1355 A.D. English restatement of the 1215 A.D. Magna
Carta. (My italics.)
Just as Magna Carta,
the 1355 A.D. English statute, and early American state constitutions with
similar provisions, make abundantly clear, “due process of law” related
exclusively to fair procedure.
I emphasize the procedural nature of due process because
procedure is wholly different from substance. Whether an accused has the
right to an indictment first, rather than summary trial (procedure), is quite
different from whether as a matter of public policy a legislature possesses the
legal and constitutional power to make prostitution a crime (substance). This
important distinction between procedure and substance would become crucial in
American constitutional law. How the ensuing argument was resolved, radically changed
the United States of America.
If there is any doubt
about the procedural nature of due
process, we need only examine the Fifth Amendment’s position in the overall
architecture of the Bill of Rights.
The Fourth Amendment
deals exclusively with the criminal procedure
of searches and seizures.
The Fifth Amendment —
where the federal Due Process Clause is found — deals exclusively with four
other procedural protections, three
of which are indictment, double jeopardy, and self-incrimination.
The Sixth Amendment
deals, procedurally, with speedy and
public trials, impartial jury, notice of the charges, confrontation by
witnesses, compulsory process, and assistance of counsel.
This architecture, let
alone history beginning with Magna Carta in 1215 A.D. and the restatement in
1355 A.D., leaves no doubt that the Fifth Amendment’s due process protection
was intended to be solely of a procedural
nature and to operate only against the federal government.
There is no better and
finer explication of procedural due process than in the case of Jones v. Flowers, where Associate Justice Clarence Thomas dissented.[4]
First the facts of the Jones case:
When
. . . [Jones] failed to pay his property taxes for several consecutive years,
[the] Commissioner of State Lands in Arkansas, using the record address that
Jones provided to the State, sent Jones a letter by certified mail, noting his
tax delinquency and explaining that his property would be subject to public
sale if the delinquent taxes and penalties were not paid. After [Jones] failed
to respond, the State also published notice of the delinquency and public sale
in an Arkansas newspaper. Soon after . . . Linda K. Flowers submitted a
purchase offer to the State, it sent [Jones] a second letter by certified mail
explaining that the sale would proceed if the delinquent taxes and penalties
were not paid.
[Jones]
argues that the State violated his rights under the Due Process Clause of the
Fourteenth Amendment because, in [Jones’s] view, the State failed to take
sufficient steps to contact him before selling his property to Flowers. [Jones]
contends that once the State became aware that he had not claimed the certified
mail, it was constitutionally obligated to employ additional methods to locate
him. (My
italics.)
The question for the Supreme
Court was whether Fourteenth Amendment procedural due process of law
requires that “when mailed notice of a tax sale is returned unclaimed, the
State must take additional reasonable steps to attempt to provide notice to the
property owner before selling his property, if it is practicable to do so.” The
5–3 majority’s answer was “yes.”
Unfortunately for the
Court’s reputation, especially because the majority opinion was written by
Chief Justice John Roberts, one hunts in vain for a reason why the Due Process Clause of the Fourteenth
Amendment required Arkansas to do more than it did. Roberts and his four
predictable liberal colleagues believed that because the stakes were high — loss
of a person’s home — the state should
have done more simply because it could
have done more. This was a legislative policy ruling by the Court, not a
legal decision based on the clear meaning and history of procedural due
process.
Justice Thomas, however,
was having none of it. His dissent shredded Roberts’s majority opinion.
Thomas began by referring
to various Court precedents: “Balancing a State’s interest in efficiently
managing its administrative system and an individual’s interest in adequate
notice, this Court has held that a State must provide notice reasonably
calculated, under all the circumstances, to apprise interested parties of the
pendency of the action.”
OK, that makes sense.
Fair procedure is important. Process is important.
Justice Thomas continued:
The
methods of notice employed by Arkansas were reasonably calculated to inform
[Jones] of proceedings affecting his property interest and thus satisfy the
requirements of the Due Process Clause. The State mailed a notice by certified
letter to the address provided by petitioner. The certified letter was returned
to the State marked ‘unclaimed’ after three attempts to deliver it. The
State then published a notice of public sale containing redemption
information in the Arkansas Democrat Gazette newspaper. After Flowers submitted
a purchase offer, the State sent yet another certified letter to
petitioner at his record address. That letter, too, was returned to the State
marked ‘unclaimed’ after three delivery attempts.” (Italics in
original.)
Notice that Justice
Thomas’s focus was on procedure, not substance: “notice,” “inform,”
“proceedings.”
But what about someone
who admitted that the procedure was constitutional, but complained the substance
of the law was not? That, for example, a thousand-dollar fine for a parking
ticket was unconstitutional substantively under the Eight Amendment’s prohibition
of “excessive fines”? Or that protest
parades of more than fifty marchers were illegal, despite the First Amendment’s
guarantees of free speech and assembly? Or that a state ban on purchase and use
of contraceptives was unconstitutional under some constitutional provision or
other? How would the substance of those alleged unconstitutional laws,
and countless others, be tested?
I will begin to answer
that question in my next blog.
[2] The reference to
the first ten amendments as the “Bill of Rights” (1787) is a misnomer. The
Tenth Amendment provided that “[t] he powers not delegated to the
United States by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people.” (My
italics.)
[4]
Jones v. Flowers, 547 U.S. 220 (2006). I quote Justice Thomas
often because he is the Supreme Court’s leading originalist, and is clear and
correct on important subjects of constitutional law, especially individual
rights and limited government.
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