I noted earlier that Odd Clauses has some annoying lapses.
A book like this -- around two hundred pages with broad margins covering ten provisions -- is not going to be totally substantive and will now and then summarize or skip over something in ways that might bother one a bit. It is something like when someone writes an article or relatively short paper (to speak personally, back when) on a case that others have written books about. Thus, the Third Amendment skips over a few interesting citations, like this one, and in the notes of the chapter about the one full-fledged appellate case, In Our Defense is not listed, even though it has a chapter on the very issue.
Such things are understandable, if at times, one wishes some detail or other was included. The book is restrained, as noted, by its limited length, shorter than his not that long first book even though if anything more stuff has to be covered (the other book about but one clause). The remainder has enough interesting stuff and lessons to make it well worth reading. And, the subjects should not be obscure. After all, recess appointments are a major concern (quibble: more on how filibusters and judicial independence are affected by short term appointments could have been added, even a page on each) these days.
Still, the book has various comments and asides of the type, not including the humor and partisan comments that annoyed a few at Amazon, that touch my buttons. This sort of thing comes up in various books and are of the type that are unnecessary asides that are better left out or at least not taken to be as crystal clear given that they are repeatedly disputed. Toss in untrue comments (the "freedom of contract" was not first cited in Lochner and given the Contract Clause alone, it has some connection to the text beyond merely be a "liberty" interest), and ... red flag alert!
For instance, though a strong liberal, the denunciation of not only the penumbra/emanations language of Griswold but the "oxymoron" of substantive due process. I continue to find Douglas' argument perfectly logical and even if not said in so many words, the Supreme Court continues to follow it -- basically, the spirit of various provision of the Constitution require going beyond the text to protect additional rights or powers (as the case may be) in various respects. Thus, there is a right to association, even though it is not expressly found there, and privacy over associations, even though the word is not found there as such either. As Madison once noted, even without the Necessary and Proper Clause, something similar would be used for congressional powers. If Congress has power over post roads, the power to enact criminal statutes to protect them would logically follow, even if the clause doesn't literally say that.
The substantive due process issue also annoys me, since -- and a law professor should be aware of this (I just come off as one -- someone else [a lawyer at that] assumed I was one recently ... I don't know if this is a compliment) -- a lot has been written on the subject refuting the "oxymoron" point. Due process of law has long been held to have a substantive content, since it grows from the concept of a "law of the land" that must be followed, a law that in our system is not merely set forth by mere legislation. Thus, if Congress purported to pass a "law" abridging freedom of speech, it would not mean someone can be convicted under it if the proper procedures are followed. The Ninth Amendment underlines that the Bill of Rights only lists some such "liberties."
Justice Stevens (contra to some accounts I have read that said the concept only came later*) recently cited a ruling on the point from 1897:
Again, "In determining what is due process of law, regard must be had to substance, not to form." That is, not merely "procedure" but also "substance," since we are ruled by a limited government. Now, the matter can be debated, clearly, but the use of "substantive" (putting aside, per recent posts here about the Ninth Amendment, that the same basic end can be advanced by other means)is not simply ridiculous. The book repeatedly respects that constitutional questions involved in the material covered are complex, even if the author might fall on one or the other side. Substantive due process is at least worthy of the same respect.
[FN30] "But a state may not, by any of its agencies, disregard the prohibitions of the fourteenth amendment. Its judicial authorities may keep within the letter of the statute prescribing forms of procedure in the courts, and give the parties interested the fullest opportunity to be heard, and yet it might be that its final action would be inconsistent with that amendment. In determining what is due process of law, regard must be had to substance, not to form. This court, referring to the fourteenth amendment, has said: 'Can a state make anything due process of law which, by its own legislation, it chooses to declare such? To affirm this is to hold that the prohibition to the states is of no avail, or has no application, where the invasion of private rights is effected under the forms of state legislation.' Davidson v. New Orleans, 96 U. S. 97, 102 [(1877) ]." Chicago, 166 U. S., at 234-235.
This does not take away the general value of the book of which I am now about half finished, though it does suggest we should take what is said with a grain of salt. A bit of salt is healthy.
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* Let me be specific here. It might be that the statement is that the term "substantive due process" as such was not used, perhaps as late as after WWII. But, it is rather clear to me that the quoted comment concerns the basic point, even if the word is not in its adjective form.
And, the timing was telling since a similar substantive protection of due process was used a few years later in Lochner, citing another 1890s ruling in particular. However I don't like his blogging on the point and therefore am not inclined to read his new book at the moment, David Bernstein is correct that there is too much misinformed analysis of this issue.