Thursday, July 23, 2020


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.

[1] Declaration of Independence. July 4, 1776.
[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.)
[3] 32 U.S. 243 (1833).
[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.

No comments: