December 27, 2005


Foes cite Alito's stance on liberty: Say he targeted issue key to Roe (Charlie Savage, December 27, 2005, Boston Globe)

During his years on the US Court of Appeals for the Third Circuit, Judge Samuel A. Alito Jr. repeatedly tried to limit the court's interpretation of the 14th Amendment's protection of ''life, liberty, and property" -- one of the key legal underpinnings of the Roe v. Wade abortion case.

The appeals court had ruled in a series of cases that the 14th Amendment protects people against arbitrary decisions by their local government, such as zoning board officials who deny permits for no good reason.

Alito, now a nominee to the Supreme Court, rejected such rights, writing that ''only in extreme circumstances is it proper to invoke" 14th Amendment protections. [...]

''There are many very important and serious legal scholars who take issue with [liberty rights] because it very quickly becomes what the judge thinks the law should cover," said Sean Rushton, of the conservative Committee for Justice.

In recent decades, the Supreme Court has invoked liberty rights to strike down laws forbidding contraception, abortion, interracial marriage, and gay sex between consenting adults; a zoning law that prevented extended families from living together; and a law that forced parents to let grandparents visit their children.

But because the Constitution does not explicitly list the rights protected by those decisions, some legal conservatives reject the rulings as mistakes.

The Left stands to pay a high price for basing things it wishes were rights on a fiction. All the 14th did was make it clear that the Constitution covered former slaves.

Posted by Orrin Judd at December 27, 2005 8:15 AM

"All the 14th did was make it clear that the Constitution covered former slaves"

Now that is "wishful" thinking on your part. If they wanted to make that "clear", they would have stated precisely that. They didn't.

Besides the 14th amendment wasn't adopted in a legal fashion, thus it should be a moot point anyway.

Posted by: h-man at December 27, 2005 8:54 AM

The 14th does more than that. The problem is that what it does is entirely unclear. It didn't do what the Supreme Court says, which is make the Supreme Court supreme. It might have done something even worse: make Congress supreme.

Posted by: David Cohen at December 27, 2005 9:10 AM

Given that the courts are now a de facto 3rd legislative branch, I'm leaning more toward conservative activism.

The faster the courts become activist conservatives, the sooner the MSM will demand their power be curtailed.

Just read the thing...

"All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

This can be used to invalidate Title IX, discrimintation against home schooler attempting to access gym class, etc. etc. etc.

Properly applied, it could lead to the repeal of large chunks of liberalism.

Posted by: Bruno at December 27, 2005 9:54 AM


Applied by Liberals, it makes every tiny liberal expansion of rights "Supreme" (see Gay marriage).

It can be used, in effect, as a "rights" ratchet. The conservative activist position is to stress expanded "negative" rights (to be left alone) passed in a red state, and apply it to all states.

Georgia gives home schoolers the right use public gym class (they pay the taxes too), and presto, it has to be legal every where. (provided some one is smart enough to sue)

Start working these cases into the system, and the ACLU will start demanding repeal of the 14th.

Talk about a "win-win"...

Posted by: Bruno at December 27, 2005 10:00 AM

Section 5.

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Posted by: David Cohen at December 27, 2005 10:38 AM

What the article is talking about is the doctrine of substantive due process. In the late 19th century, it was invoked to invalidate state regulatory legislation, e.g. Lochner vs N.Y. Liberals despised the doctrine and when the New Deal took over SCOTUS, it was scrapped in favor of the doctrine of incoporation (i.e. that the 14th amendment applied most of amendments 1, 4, 5, 6, and 8, to the states). In the 1960s and 70s substanive due process was reinvigorated for the sex cases (Griswold, Roe, etc.), but it was not officially acknowledged as such until Lawrence.

We now have the worst of both worlds, substantive due process and incorporation. Both doctrines are wrong and are an infringement of state soverignty, but substative due process has the advantage of being referable to the text of the constitution, whereas incorporation is a contradiction of the ordinary canons of interpretation.

A true conservative jurisprudence would rely on the words and history of the constitution and restore soverignty to the states. It would abandon both the doctrines of incorporation and substantive due process.

Posted by: Robert Schwartz at December 27, 2005 11:43 AM

David's observations are brilliant as usual. oj, the 13th is what made blacks equal to whites. The 14th was immediately motivated by two concerns:
1) Protecting the newly freed, but minority, blacks of the South against persecution by white state governments and lynchings by the proto-KKK, by giving them a federally-secured right to keep and bear arms (nearly all blacks in South Carolina, and most blacks in other states, had petitioned for Congress to secure this right), freedom of speech and press, and economic liberties to pursue their own work.
2) Eliminating the power which Southern states had exercised before the Civil War to deprive abolitionists, mainly preachers who became Republicans, of their freedom of religion, freedom of speech, freedom of the press, and right to keep and bear arms, as they prohibited anti-slavery speech and persecuted abolitionists.

As such it marked a huge shift of power from the states to the federal government, which I think was warranted but which is now being badly abused.

Posted by: pj at December 27, 2005 11:57 AM

The purported 14th Amendment to the United States Constitution is and should be held to be ineffective, invalid, null, void and unconstitutional for the following reasons:

1. The Joint Resolution proposing the amendment was not submitted to or adopted by a Constitutional Congress per Article I, Section 3, and Article V of the U. S. Constitution.

2. The Joint Resolution was not submitted to the President for his approval as required by Article I, Section 7 of the U. S. Constitution.

3. The proposed 14th Amendment was rejected by more than one-fourth of all the States then in the Union, and it was never ratified by three-fourths of all the States in the Union as required by Article V of the U. S. Constitution.

End of subject.

Without the votes of 7 Southern State Legislatures the 13th Amendment would have failed. December 1865. Yet votes by Southern States rejecting the 14th amendment in 1867 were not counted. So take the 13th Amendment or the 14th, but not both.

Posted by: h-man at December 27, 2005 1:05 PM

I'll take the 13th and leave the 14th but until we convince the men with the guns, it ain't gonna matter.

Posted by: David Cohen at December 27, 2005 3:49 PM

Glad your with us on the issue of birthright citzenship.

Posted by: Carter at December 27, 2005 4:50 PM

Yes, citizenship is clearly the right of anyone born here.

Posted by: David Cohen at December 27, 2005 5:21 PM


I'll buy that if we can expropriate the baby and kick out the parents (If here Illegally). I'd take one.

Note that I favor guest worker expansion.

Posted by: Bruno at December 27, 2005 8:37 PM

"Anchor babies" are a myth. A US citizen does not have the right to petition for residency for even immediate relatives until age 21. Illegal aliens with citizen children are routinely deported.

Posted by: David Cohen at December 28, 2005 3:22 PM