Substantive Due Process

[Steve Schear]

At 12:54 AM 6/10/2001 -0400, you wrote:
>The problem with the due "Process Clause" is it injects a false distinction
>with respect to 'types' of rights. See the first two sentences of the DoI
>for a clarification of the only operable definition of 'right' acceptable in
>
>
>I'm going to have to admit that I've pretty much lost the thread of the
>argument here- I'm just trying to point out that under the incorperation
>doctrine, the 14th amendment has been used to expand the bill of rights to
>apply to the states. No, the constitution doesn't explicitly state this. But
>the supreme court says that it is part of the constitution, which pretty much
>makes it so (yes, there are some important legal distinctions between court
>opinions and the Constitution itself, but for the most part, they function as
>the same thing, with the opinions footnoting the Constitution).

It is accepted jurisprudence that one is not required to obey 
unconstitutional laws.  Of course, one can be incarcerated for failing to 
do so until one is able to prevail in court.  As has been pointed out many 
times on this list, a number of significant SC decisions (e.g., Commerce 
Clause as a basis for much of Federal law) appear to fly in the face of a 
plain reading of the Constitution and its reasonable interpretation from 
historical documents (e.g., Madison's excellent notes during the 
constitutional convention).

Since FDR the SC has generally supported expansion of federal authority at 
the expense of State and individual rights.  A few recent decisions have 
shaken the confidence of the left that this trend will continue 
unchecked.  Let's hope the current members can stay on long enough to 
reverse some of the damage done in the past century.

steve