Bill of Rights, Constitutional Law, Due Process Clause, Due Process of Law, Federal Courts, Rational Basis, Samuel Chase Impeachment Trial, Strict Scrutiny, Substantive Due Process, Taney Court, Thomas Jefferson's Republicans, U. S. Supreme Court
Perhaps you are among those who believe that punishment does not deter crime or, what’s essentially the same thing, most folks will obey the law even if it’s not enforced. If you believe that, look around while driving on the Interstate and see if most drivers appear to be observing the speed limit. Better yet, look at your own speedometer.
In 1804, the House of Representatives impeached a Supreme Court Justice named Samuel Chase . A few years earlier, Chase had been the loudest and most obnoxious of a group of justices who trashed the Bill of Rights while carrying on a political reign of terror against Thomas Jefferson’s Republicans. After the Republicans came to power in 1800 they thought it might be a good idea to fire some of the white collar criminals who had defied the Constitution .
Unfortunately, the impeachment failed in the Senate; the vote to convict fell short of the constitutionally required two-thirds majority. The few surviving Federalists in the Senate voted as a bloc to protect Chase; and three or four Republicans declined to support removal of a Supreme Court justice for what some might consider “political” reasons. They thought it would set a bad precedent .
A worse, even disastrous, precedent was set as a result of the failure. Future Supreme Court justices took the lesson that it was virtually impossible to remove or punish them. If Justice Chase couldn’t be fired for openly trashing the Constitution in service of a partisan political agenda, they (the justices) could evidently get away with any political outrage they chose to perpetrate. All they needed was a credible cover story.
If you’ve already read the companion article “A Scam is Born,” you know that a fraudulent U. S. Supreme Court ruling (the Dred Scott decision) led to the Civil War. You also know that it gave birth to the substantive due process scam, the most successful con game in American history. This article will follow the subsequent development of the scam .
The substantive due process scam, as invented by the Taney Court, was based on a perversion of the “due process clause” of the Fifth Amendment which says that no person shall “be deprived of life, liberty, or property, without due process of law.” There can be no honest doubt about the intended meaning of the phrase, “due process of law.” It had been a principle of British and American law for centuries and was universally understood, by our founders, to mean a fair trial which followed traditional procedures including advance notice of the charges against one, indictment by a grand jury and conviction by a jury of one’s peers. Our founders trusted ordinary citizens a lot more than they trusted judges. And they wanted to insure that no judge could punish anybody without first going through a “process” in which ordinary citizens were empowered to block the punishment. The Fifth Amendment was placed in the Constitution to protect the people from what is now called “Judicial activism.”
The great constitutional authority, Alexander Hamilton said, in a speech in 1787,
“The words due process have a precise technical import, and are only applicable to the process and proceedings of the courts of justice. They can never be referred to an act of the legislature.”
With the possible exception of James Madison, Hamilton was the foremost expounder, among its framers, of the intended meaning of the Constitution. He was also a strong supporter of broad powers for courts and, among our founders, had an unusually low degree of trust for legislatures accountable to “the people.” The fact that he, above all others, made the foregoing statement shows that it represented the virtually unanimous understanding of our founders .
There also can be no honest doubt about the historical meaning of the phrase,“deprived of life, liberty, or property.”
It referred to punishment for crimes. In our founders’ society, the death penalty was administered for a variety of crimes including murder, rape, sodomy, and, in two states, even blasphemy. “Deprived of liberty” meant thrown into jail and “deprived of property” meant having one’s property taken as punishment for a crime. The foregoing describes everything our founders intended the “due process clause” of the Fifth Amendment to mean. In the 1857 Dred Scott decision, a renegade Supreme Court invented a completely new meaning for the clause and used it to nullify a law passed by Congress, a law whose only defect was that a majority of the justices found it politically distasteful .
A decade later, after the Civil War had ended, Congress finally got around to responding to the Court’s brazen power grab; it proposed the Fourteenth Amendment. The Amendment contained language intended to nullify the Dred Scott decision. And it declared that Congress, rather that the courts, would have power to enforce it. However, Congress shot itself in the foot. It didn’t take steps to punish the renegade justices. And it used the same “due process” language in the first paragraph of the Fourteenth Amendment that the Court had “perverted” (as Abe Lincoln said) to justify the Dred Scott decision .
Contemporaneous with the framing and ratification of the 14th Amendment, Congress passed four “enforcement acts” as the Amendment explicitly authorized. The four acts, which ran in total to over 8000 words, contained everything that Congress intended the Fourteenth Amendment to cover. They were completely devoid of any support for a broad new construction of the “due process” clause. One can confirm that statement by clicking on the hyperlink below and reviewing the four acts .
For obvious reasons, Congress didn’t trust state courts to enforce the Fourteenth Amendment against the political leaders of their own states. So the four acts imposed a lot of distasteful new duties on the federal courts. After laying low for a few years, the Supreme Court, under various pretexts, nullified the four enforcement acts. In the first few decades after the adoption of the 14th Amendment, our judicial branch of government blocked its intended effects, thus allowing the Ku Klux Klan to run amuck and protecting three-quarters-of-a-century of Jim Crow laws in much of the South .
That is not to say that the Supreme Court nullified the Fourteenth Amendment. Instead the Court used the substantive due process scam to subvert the Amendment to its own corrupt purposes. The Court used, and still uses, the scam to get around the first mandate in the U. S. Constitution, “All legislative Powers herein granted shall be vested in a Congress of the United States” .
If you torture the plain meaning of words, you can come up with a legal rationale to justify almost anything. Beginning with the Dred Scott Decision, our judicial employees decided to see how far they could stretch the words “liberty” and “property” as used in the Fifth and Fourteenth Amendments. With a sufficiently broad definition of those two words, there’s no law that Congress or a state legislature might enact that could not be alleged to infringe on somebody’s “rights” under the substantive due process doctrine.
A tax obviously takes somebody’s property. So the doctrine gives courts, rather than Congress, the final say on the reasonableness of any tax. A law forbidding predatory or fraudulent behavior by corporations can be attacked as depriving some company of the most advantageous use of its “property.” The Court might not strike down the law, but then again it might. It depends on whether or not the justices like the law, not on any real constitutional issue. Even an appropriation of public funds is fair game for due process mischief. A plaintiff who did not get a government handout he expected can claim he had a “property right” to the handout and petition a court to review the appropriation for conformance with some judge-made rule regarding “due process.”
The possibilities for substantive due process mischief based on the word “liberty” boggle the mind. A law against murder, rape, burglary, or dope peddling tends to restrict the “liberty” of murderers, rapists, burglars, and dope peddlers to freely pursue their chosen professions. The Supreme Court has never supported a claim that this type of law denies “due process,” but it certainly claims the right to do so. Our founders would have been aghast at the idea that federal courts might some day construe the Fifth or Fourteenth Amendment to protect homosexual sodomy or abortion. But that’s exactly what they did. To be sure, “We the People” don’t feel the same way about those two issues we did when we ratified the relevant Amendments. However, we’re perfectly capable of changing our laws to reflect our changing values when we deem it appropriate. We don’t need a gang of white collar criminals updating our fundamental law for us. Our Constitution mandates that we enjoy a “Republican Form of Government,” not an oligarchy of lawyers .
THEIR PERSONAL ECONOMIC PREDILECTIONS
For a half-century or so, beginning in the 1880’s, the business of the U. S. Supreme Court was business. The justices thought their mission was to keep “We the People” from messing around with the interests of the folks who ran corporations. So they took the Taney Court’s substantive due process scam and ran with it. “Due process of law ” became a general purpose catch phrase to support judicial control of “all legislative Powers,” both state and federal, to the extent they might affect somebody’s economic interests. A pioneering case in the evolution of the scam was Lochner v. New York (1905). The state of New York had passed a law regulating the hours, sanitation, and working conditions in bakeries. Among other things it mandated that, “No employee shall be required or permitted to work in a biscuit, bread, or cake bakery or confectionery establishment more than sixty hours in any one week.” A bakery owner was fined for violating the statute and appealed to the federal courts on the grounds that the law infringed on his right to “liberty” under the Fourteenth Amendment.
The Court agreed with the bakery owner claiming:
“The general right to make a contract in relation to his business is part of the liberty of the individual protected by the 14th Amendment of the Federal Constitution. Under that provision no state can deprive any person of life, liberty, or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this amendment, unless there are circumstances which exclude the right.”
The key to the substantive due process scam is those last eight words, “unless there are circumstances which exclude the right.” If the Fourteenth Amendment guaranteed one an absolute right to “make a contract in relation to his business” one could undoubtedly hire a hit man to knock off a business rival. That would just not do. So the alleged 14th Amendment right at issue requires that somebody exercise lawmaking power to determine which “circumstances . . . exclude the right,” and which don’t. That lawmaking power is included in what our founders meant by “All legislative Powers;” and it’s precisely what the Supreme Court has stolen by virtue of the substantive due process scam .
The Court continued using the scam to block government regulation of business until the late 1930’s. Eventually its efforts wrecked the economy (one can make a fairly convincing argument that the substantive due process scam caused the Great Depression). In March 1937, President Franklin D. Roosevelt went on the radio and accused the justices of the Supreme Court of reading “their personal economic predilections” into the Constitution. He also said,
“The Court . . . has improperly set itself up as a third house of the Congress – a super-legislature, . . . reading into the Constitution words and implications which are not there, and which were never intended to be there.”
“. . . we must take action to save the Constitution from the Court and the Court from itself.”
” . . . we want a Supreme Court which will do justice under the Constitution and not over it.”
Roosevelt, who had just been reelected in a landslide, proposed legislation to “pack the Court” with four or five extra justices of his own choosing, thus neutralizing the voting power of its current occupants. Congress decided to kick the idea around for a while .
The 1936 election had brought in a Congress that was dominated by Roosevelt’s Democratic coalition, which obviously included Southern Democrats. The Supreme Court had been defending Southern racism more or less continuously for eighty years. So it enjoyed a fairly high degree of respect and esteem among Southern Democrats. They didn’t like its actions which were wrecking the economy, but they weren’t anxious to slap it down either. The Republican minority in Congress generally approved the Court’s policies that had wrecked the economy. These two groups managed to stall Roosevelt’s court packing plan for several months .
During those months a justice or two saw the handwriting on the wall and started voting to uphold, rather than strike down, Roosevelt’s economic recovery plans. This development tipped the balance on the Court in favor of Roosevelt’s plans and removed the political pressure to pack the Court. So “We the People” lost our best chance in the last century to get a Supreme Court that would “do justice under the Constitution and not over it.”
Roosevelt’s court packing plan was not enacted into law. However, during his remaining time in office he got to replace most of the judicial buccaneers who had helped cause the Great Depression. Before long the politicians who then sat on the Supreme Court started looking around for a new mission in life; at this point the Court had no further interest in managing the economy. After a few years of experimentation, they decided to employ their substantive due process scam in the field of civil rights. The Court abandoned its eight-decade-long romance with the Ku Klux Klan and boundless corporate greed and set out to develop the fraudulent new Bill of Rights we live under today.
In 1965 (Griswold v. Connecticut) the Supreme Court used the substantive due process scam to nullify a Connecticut law prohibiting the use of birth control devices. The majority said the law “cannot stand in light of the familiar principle, so often applied by this Court, that a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms.”
Justice Hugo Black, in a dissenting opinion, stated the obvious:
“I do not believe that we are granted power by the Due Process Clause or any other constitutional provision or provisions to measure constitutionality by our belief that legislation is arbitrary, capricious or unreasonable, or accomplishes no justifiable purpose, or is offensive to our own notions of “civilized standards of conduct.” Such an appraisal of the wisdom of legislation is an attribute of the power to make laws, not of the power to interpret them. The use by federal courts of such a formula or doctrine or whatnot to veto federal or state laws simply takes away from Congress and States the power to make laws based on their own judgment of fairness and wisdom and transfers that power to this Court for ultimate determination – a power which was specifically denied to federal courts by the convention that framed the Constitution” .
Justice Black did not continue and state what is equally obvious: his “brethren” who had the gall to usurp “veto” power over legislation because they thought it “arbitrary, capricious or unreasonable” were nothing but a bunch of white collar criminals. Black knew that much honesty would be an unseemly breach of judicial decorum.
As you’re probably well aware, our Constitution provides for a veto power, but that power is not vested in the judiciary. Article I, Section 7 provides that the president alone has veto power over legislation he deems arbitrary, capricious, or unreasonable. It also provides that Congress can override any such veto by a two-thirds vote in both Houses.
Here’s a summary of what the Supreme Court has twisted the due process clause of the Fifth and Fourteenth Amendments to mean: Any exercise of “legislative Powers” is subject to the approval of the Supreme Court. The Court will veto any law that a plaintiff finds inconvenient and a majority of the Court’s members think lacks a “rational basis.” That is it does not “rationally relate to a legitimate governmental interest.” The Court gets to determine what’s “rational” and what isn’t and which governmental interests are “legitimate.”
Even if it considers a law to be “rational” and “legitimate” the Court will subject it to “strict scrutiny” if it impinges on “fundamental rights.” In such cases the justices will veto it unless they opine that it furthers a “compelling” governmental interest and is “narrowly drawn” to serve that interest. The “fundamental rights” don’t have to be mentioned in the Constitution. If our judicial employees want them to be “fundamental,” they’re fundamental, even if they were illegal when the Fifth and Fourteenth Amendments were ratified. .
History suggests that Congress might be able to override a judicial “veto” in at least four ways. It could remove the Supreme Court’s “appellate jurisdiction” in all cases related to the veto. This worked quite well in the matter leading up to Ex parte McCardle . It could start the wheels in motion to “pack” the Court. The last time this was tried it motivated at least one justice to abandon his criminal ways. The third method is the least desirable. With a two-thirds super-majority in both Houses and the support of three-fourths of the states, Congress can amend the Constitution to override the veto. But that action tends to legitimize the justices’ criminal act. Besides, the Supreme Court might then rule that Congress did not intend the new Amendment to mean what Congress thought it intended the Amendment to mean. That’s how the Court perverted the 14th Amendment.
The fourth method is unlikely to ever be tried. Congress could impeach and remove a Supreme Court majority for usurpation of “legislative Powers,” which certainly qualifies as a “high crime.” Then, after the miscreant justices are replaced, invite the Court to reconsider the usurpation. This approach would probably drive a stake into the heart of the substantive due process scam. But its use would require a higher class of congressmen than “We the People” are ever likely to have in our employ .
There are “at least” four ways Congress could override judicial usurpation of its “legislative Powers.” However, as the others have never been tried, I consider them beyond the scope of this article. If you’re curious check out the online essay, The Rule of Judicial Ideology.
NOTES AND CITATIONS
1. The unsuccessful impeachment of Samuel Chase is described in The Temple of Karnak, Chapter 4, and in References cited therein. The judicial “reign of terror,” during the late 1790’s, in described in Chapter 1 of the same work. See also the online essay, The Reign of Terror.
2. The essay, A Scam is Born, can be found here.
3. Hamilton’s statement was made in a speech to the New York Assembly in Feb. 1787. To review the historical meaning of “due process,” see Berger (Chapter 11), Crosskey (Vol. II, Chapter XXXII) and the book by Hugo Black. As of this writing, an interesting review of this subject could be found on the Internet at http://www.andrewhyman.com/due.html.
4. Maryland’s anti-blasphemy statute provided for a punishment of “death without benefit of clergy” on the third offense. Massachusetts law provided the death penalty for blasphemy, idolatry, and witchcraft. See Saunders, pages 90-95. See also Chapters XXXI and XXXII in Volume II of Crosskey.
5. Section 5 of the Fourteenth Amendment says: “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” For the source of Lincoln’s statement quoted above see the online essay A Scam is Born.
6. A transcript of the four 14th Amendment enforcement acts can be found here.
8. After a 52 word preamble, the first sentence in the body of the Constitution is “All legislative Powers herein granted shall be vested in a Congress of the United States . . . ”
10. At the time this was written, the Lochner opinion could be found on the internet at http://caselaw.lp.findlaw.com/scripts/getcase.pl?cou rt=US&vol=198&invol=45.
11. See the online essay Off To See the Wizard.
12. See Note 7 above.
14. You will probably not be surprised to learn that the Court claims abortion is a fundamental “privacy” right even though neither abortion nor privacy are mentioned in the Constitution. The phrases in quotation marks in the last two paragraphs can be found in numerous federal court opinions and countless lectures by constitutional law professors. To review their use in those contexts, pick any major Internet search engine you like and perform a search on the key words:
15. The historical development of the substantive due process scam is also reviewed in the 1977 book by Professor Raoul Berger
“Freedom of men under government is to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it.”
— John Locke
Second Treatise, Ch. 4
This article is based on Chapters 5 and 6 in The Temple of Karnak: How Rogue Judges Have Been Strangling Your Democracy.