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In this special double-episode, Steve Hayward takes the occasion of the last-minute hesitation over the nomination of Neomi Rao for the DC Circuit Court of Appeals to talk once again with “Lucretia,” Power Line’s International Woman of Mystery, about the issue of “substantive due process” that apparently worried a couple of Republican senators, and then we bring on our own John Hinderaker for a few observations about CPAC, and especially President Trump’s blockbuster speech. The show ends with Steve starting the execution of our “Cover of the Rolling Stone” strategy to try to attract the great Black Rifle Coffee company as a show sponsor!
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Published in: Law
This was excellent.
At one point well into Lucretia’s segment Steve worried aloud (my paraphrasing) that they had gotten so deep into the Constitutional inside baseball that they may have already lost their last listener.
Please, never be concerned about getting too deep into the weeds. All you will make me do is replay this episode many times in my pursuit of my better understanding our Constitution.
Loved hearing from Lucretia. As I have said before, why didn’t I have professors like this when I was in college?! Finally, having read about Ms. Rao, I am less nervous about her than Kavanaugh. He’ll probably be fine – and certainly better than anyone H Clinton would have nominated but I am worried that he is going to be more Roberts than Gorsuch or Alito. Speaking of Alito would it possible for you to have a show about him and some of his decisions. He is very intriguing to me – sort of a dark horse on the court.
“Emanations and penumbras” was used by Justice Wm. Douglas in Griswold, a predecessor to Roe.
Douglas took the idea from Cicero, who wrote in the context of Roman common law. It is a defensible concept in that context, but wholly inappropriate for Constitutional jurisprudence.
Griswold found in the emanations and penumbras of a grab bag of constitutional clauses a right to privacy that protected the sacredness of the marriage bed and guaranteed that married couples could use contraception. Somehow, by Roe, the emanations and penumbras of this right to privacy was extended to cover a woman who wished quietly to kill her child before it was born.
I apologize for being 6 weeks late to the party, but I listen to these podcasts off line and asynchronously.
I found the discussion of substantive due process to be disjointed, confusing, and at points, just plain painful. If you didn’t know what substantive due process was when you started listening to it, you would have known less than that when you were done.
I will not write a point by point explanation of the podcast, nor will I take the time and effort to explain substantive due process as I have neither the time nor the energy. I will however essay that I could have answered the question and enlightened the lay listener in a bit less time that Steve and his guest took to to confuse them.
Steve, has also continued to unjustly, and incorrectly, deprecate the Slaughterhouse Cases, 83 U.S. 36 (1872). Read it for yourself: https://supreme.justia.com/cases/federal/us/83/36/.
Many people have accused the case of having gutted the 14th Amendment. That is not so. The case points out that the Amendment was enacted for the purpose of protecting the the newly freed slaves from their former masters. Justice Miller’s explication of the 14th Amendment and his opinion are a model for what constitutional jurisprudence should be.
The Slaughterhouse plaintiffs were not alleged to be members of the protected class. The case was about what we would call an environmental regulation. The plaintiffs were butchers who were complaining about having to use a certain location run by what was essentially a public utility to slaughter their animals. The slaughterhouse corporation had to accept all comers and charge them a statutory fee for its services. Slaughtering animals is a noisome activity. Regulating its time, manner, and place is an unexceptional exercise of the police power.
Justice Miller, who was smarter, and more judicious than most of his successors, and a great many professors, saw that the construction of the 14th amendment urged on the court would “constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve”. He declined the invitation.
Subsequent justices have not been so judicious. They have thought up all kinds of reasons for why they should act as platonic guardians. All conservatives should now understand that the problem is not getting the Court to exercise their power the way we want them to. The problem is getting them to understand that they have usurped power, and getting them to stop.
The ring must be taken back to Mordor and unforged in the fires of Mt. Doom. Only then can our Republic and our liberties survive.