The Kelo Dissent and Substantive Due Process:
Jack Balkin offers up a provocative post at Balkinization. I don't know enough about this stuff to have any thoughts on it, but I gather lots of VC readers will find it interesting.
Karen A. Wyle (mail) (www):
This reader certainly did! I have been wondering whither substantive due process as the Court acquires new members. I have tended to view the doctrine as a relatively modern way around confronting the Privileges and Immunities Clause and/or the 9th Amendment. I'm somewhat relieved to learn of its longer history. (In addition to rights of reproductive and sexual privacy, substantive due process is currently the main source of protection for parents' fundamental right to raise their children as they see fit — see Troxel v. Granville, 530 U.S. 57 (2000). Thomas' concurrence does dangle the Privileges and Immunities clause in a footnote....)

Karen A. Wyle
Looking Around (
8.11.2005 7:31pm
Perseus (mail):
My quibble with Balkin's use of Dred Scott is that some founders regarded slavery as an extraordinary case where the vested right might be eliminated. For example, Hamilton (The Vindication, No. III) mentions "the case of certain foedal rights which once oppressed all Europe and still oppresses too great a part of it...rights which made absolute slaves of a part of the community and rendered the condition of the greatest portion of the remainder not much more eligible. These rights, though involving property, being contrary to the Social order and to the permanent welfare of Society were justifiably abolished, in the instances, in which abolitions have taken place, and may be abolished in all the remaining vestiges." Indeed, he went even further: "if compensation be impracticable, that impracticability ought not to be an obstacle to a clearly essential reform." Take that, Justice Taney!
8.11.2005 8:02pm
yclipse (mail) (www):
Although I began reading Balkin's piece with some trepidation, given its reference to what has become the greatest fiction of modern conservative jurisprudential thought - Bork's claim that the Dred Scott case was the "first example of substantive due process" - I found it to be interesting and well-argued. Balkin is one of the few commentators who is willing to consider Taney's arguments and premises on their merits, while still rejecting them.
8.12.2005 8:16am
I wonder how much of this is about rhetoric. Some critics of various "substantive due process" decisions seem very attached to their rhetoric about "oxymorons", "lawlessness", "activism", "judicial tyranny", and so forth. This harsh rhetoric admits of no exceptions, and hence the mere possibility that Kelo fits into any of these categories is viewed as an attack on this cherished rhetoric.

In contrast, if one is not fond of such rhetoric, it might be easier to simply claim the Court got it wrong in Dred and Kelo, or Lochner or Roe or any other case one wants to put on the list.
8.12.2005 10:33am
Scott Scheule (mail) (www):

Where did Bork claim this? And was he wrong? How so?
8.12.2005 12:48pm
marc garber (mail):
So is Balkin suggesting that the Kelo plaintiffs -- or similarly situated plaintiffs in the future -- should proceed under a "due process theory"?

In Hurtado v. California, 110 U.S. 516 (1884), the SCt refused to incorporate the 5th Amendment's Grand Jury Clause into the 14th Amendment's Due Process Clause --relying on the fact that the GJ Clause preceeds the 5th A's DP clause, proving that the phrase "due process" does not include the right to a grand jury investigation and indictment. In describing "due process," the SCt said at p. 535-36: "every citizen shall hold his . . . property . . . under the protection of the general rules which govern society, and thus excluding, as not due process of law, . . . acts of confiscation . . . ." (quotation omitted.)

Hurtado also noted at p. 535 in discussing what is "law" within the meaning of the Constitution, as opposed to a mere "legislative act" that: "Law is something more than mere will exerted as an act of power. It must be not a special rule for a particular person or a particular case[.]"
8.12.2005 7:09pm