How Slavery Became Blacks, Homosexuals, Politicians, a Privacy Clause, and Big Business
“Due Process denies unjust and arbitrary denial of life, liberty, or property by the government.” That is the general dictionary opinion in this millennium. The two word clause appears in two places in the US Constitution: the 5th Amendment,
No person shall … be deprived of life, liberty, or property, without due process of law …
and again in the 14th Amendment,
[N]or shall any State deprive any person of life, liberty, or property, without due process of law …
Seems like solid and desirable stuff until you consider the broad brush interpretations the Supreme Court has mangled into these two clauses. For one thing, the Supremes consider not one, nor even just two “due process” clauses to be present here, but four. They see a procedural due process, substantive due process, a prohibitive due process, and as the vehicle for the incorporation of the Bill of Rights. And that makes eight, because they apply the same principles differently for the national and State governments. What began as the law to end slavery and support the reunion of the USA became the means to remove the Bill of Rights, deny virtually all (or at least, any) State law, and permit the feds to “order our liberties” to exclusively conform with the goals of government.
The procedural issues are mostly criminal court stuff — whether the bad guy heard his rights read to him, whether police announced themselves properly, etc. This may be the most obvious portion of legal protections, simply because it makes certain that laws are followed and obeyed. Then it gets funny.
Substantive due process deals with the nature of power, as in “who has what control over which legal action and which part of society.” The originating principle was to distinguish what laws Congress could legally pass, and what authority the President had to enact laws. Due to the 14th, the courts removed all authority from the States. This means the most frightening element of “substance” is left to the broad opinion of the Supremes themselves.
Very much along the same lines, prohibitive due process supposedly restricts vague laws. It is illegal and immoral to write a law that says, “you must be nice,” because “nice” is entirely too vague to interpret. In fact, the word that annoyed the Supremes was the word “annoy” in Coates vs Cincinnatti. They sided with a fellow determined not guilty because at some point everybody is annoying to somebody.
Incorporation begins with corruption and ends with federal usurpation, despotism, and the denial of the Bill of Rights. At the bottom line, “incorporation” is what the Supremes have done to remove all rights from States and We, the People, and give them to the federal government. Not to the protection of federal government, but incorporation hands the rights over wholesale. A few Justices have said so outright. Black, Harlan, and Frankfurter agreed that the only rights of citizens are those “fundamental to a scheme of ordered liberty.” Ordered liberty was the initial standard for deciding what provisions of the Bill of Rights would be upheld by the states through the due process clause of the bastardized Fourteenth Amendment.
If the Bill of Rights are “fundamental to a scheme of ordered liberty” only, then the more “ordered” our liberty, the less of it we are allowed. This should scare the living daylights out of you and every American. We left to assume that abortion, Homosexual marriage, sexual, religious, and lifestyle favoritism, the Electoral College, voting rights, and a few specially named “privacy concerns” have special compelling interest for our “ordered liberty.” Now it gets real funny.
Ordered liberty was the minority opinion until it just was. Black, Harlan and Frankfurter, mentioned above, were the THREE solitary Justices who carried such a despotic view of rights for the first 50 or so years after the 14th Amendment. Somehow — no doubt some cause fundamental to a scheme of ordered liberty — it became the published opinion of the Supreme Court . . . except they forget to formally or officially publish it or tell us how or why.
But wait until you hear how corporations became people! Better still, free people!
Unlike us. The 14th Amendment in the hands of a corrupt Judiciary makes us all slaves to the ordered liberty of the United States federal government and hundreds of global corporations and other governments.
Isn’t that funny?
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