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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Monday, March 27, 2017

Ginsberg v. NY and Substantive Due Process

Update: On Monday, some orders (interesting footnote involving an appointed advocate being removed) were handed down; nothing much of interest.  On Tuesday, the Supreme Court 5-3 held Texas did not properly apply current standards to determine intellectual disability for death penalty purposes. The dissent even went along with them a bit there. Meanwhile, Gorsuch filibuster catching fire.

If we were in the field of substantive due process and seeking to measure the propriety of state law by the standards of the [14A], I suppose there would be no difficulty under our decisions in sustaining this act. For there is a view held by many that the so-called "obscene" book or tract or magazine has a deleterious effect upon the young, although I seriously doubt the wisdom of trying by law to put the fresh, evanescent, natural blossoming of sex in the category of "sin."
I originally posted a discussion of substantive due process after listening to the oral argument [the petitioner's lawyer dragged things out soooo much and then when he finally got to the point, wasn't much better] of Ginsberg v. New York and seeing the passage quoted (Justice Douglas, dissenting). But, after getting into the weeds, decided it was getting too tedious. I'll try again in a somewhat different way.

As I originally noted, Justice Douglas also said the the right to privacy was not a matter of "substantive due process" either (Doe v. Bolton, concurring opinion). The usage in the first case basically amounts to weighing legislation (the fear being this basically amount to judges applying personal values in an arbitrary way) to determine if it is unreasonable in violating "liberty" pursuant to the Due Process Clause.  Douglas (there with Black) argued speech is specifically protected in an absolute way.  But, in practice, that is overblown -- there are exceptions, if narrower and more carefully handled than other things.  Then, we need to find out how do that, and some choices are made as to "compelling interests."

But, "substantive due process" is used in various ways, including by Justice Douglas himself.  See, e.g., his dissenting opinion in Poe v. Ullman. First, he noted that the Bill of Rights itself has both "procedural" (e.g., to face your accusers) and "substantive" (free speech) protections that due process as found in the 14A protects. This is "substantive due process" though you can phrase it in another way (there are substantive protections and it's a procedural question to determine if they are properly denied, including wrongly denying a liberty whatever the procedure is used to do so).

Second, he believed and court precedent held that "liberty" protects things beyond what is enumerated in the Bill of Rights.  Later on, Douglas tried to limit this by arguing that enumerated rights were in effect a bundle of rights involving things not expressly stated. So, e.g., there is a right to association and privacy related to it, even though the First Amendment doesn't say "association" or "privacy."  The right to privacy wasn't really an example of "substantive due process" since again it wasn't really going beyond the enumerated rights of the Constitution.

I still prefer the more open-ended approach of his earlier dissent. Douglas referenced the "emanations" of enumerated rights there and that makes sense. But, he also spoke more broadly of rights necessary for a free society.  He specifically said he wasn't limiting himself to the enumerated rights or some indirect security to them in particular. Privacy is something that is needed for a free society, to have a zone to make decisions and free rein in general. Various enumerated rights also specifically show this, including religious freedom. The rights do represent specific concerns of wider general principles so there is some overlap here. The 9A however more generally secures rights to protect them, reliance on the enumerated rights at times at best a stretch.*

Anyway, the passage quoted to me is a suggestive window on what "substantive due process" brought to mind for New Dealers like Justice Douglas and why he and others tried to avoid it.  This is so even when at times it is clear that they too accepted the principle, but only disagreed with how to apply it.  Thus, e.g., Justice White in Griswold v. Connecticut cited the principle that economic legislation would generally get more leeway while certain matters of a more personal nature would not.  Justice Douglas' writings among others can help explain why we draw those lines, noting in practice that sometimes the personal overlap with the economic such as buying contraceptives and some decisions involving careers.

Such issues are of particular interest given the pending confirmation of someone to fill in for the seat wrongly seized from Merrick Garland. Gorsuch during his hearings tried to argue he was a special snowflake judge, who relied on the law, not personal beliefs and political experiences, when deciding the contours of such questions. Human judges are influenced by a range of things, especially along the margins. Gorsuch also kept on alluding to an old line about judges even being influenced by what they had for breakfast. Not me!  There is even a recent study that argues even that, or rather timing of meal breaks, influences judging somewhat. 

Senators also swear/affirm to uphold the Constitution. They need to decide legal questions in various respects and that oath/affirmation limits their discretion too.  And, they too aren't just robots that follow party.  They are specific individuals and voters should seek out how they personally would decide questions in various respects.  Nonetheless, that too can be taken to extremes.  If senators try to say they merely are deciding as they personally think best, a voter can laugh at them and tell them politics matters.

A final word on the original opinion. The case involves a magazine vendor being caught in a sting involving a teenager buying a girlie magazine that was deemed to be obscene for minors.  The opinion determined that it was acceptable to have different rules there for minors and adults, a principle that overall sounds fairly reasonable. Douglas/Black disagreed, thus pushing the principle that you can sell porn to ten year olds.  I guess one can imagine that not being the end of the world. A separate dissent by Justice Fortas accepted the majority generally but argued that in the case at hand a specific finding even of that lower standard was not made. If you deny speech to minors, it still should be done carefully.


*  Substantive due process is used to protect such rights, the "liberty" protected by due process involving things not expressly enumerated.  General principles like "privacy" help determine what to protect as well as specific rights (like travel) that can be seen as fitting in a wider whole or maybe simply because the rights are seen as generally fundamental.  There is usually overlap, but the strongest case is not any one port in the storm.

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