This is the third, and I promise last, installment in a series discussing Katherine Kersten’s, er, writing in the Sunday Star Tribune. The first post was about her misunderstanding of the school of thought called Social Darwinism. The second was about her — they aren’t original with her, of course — theories of natural law.
In this post, I want to air the idea of the meaning of “liberty.” To Katie and her brethren and sistren (don’t bother to write in), “liberty” means mostly, perhaps entirely, economic liberty, or the right to eat what you kill. Liberty to a garden variety conservative doesn’t include much consideration of things such as freedom to marry persons of another race or the same sex, control of your own body and the decision to carry a pregnancy to term, the freedom to use birth control (not firmly established until the case of Griswold v. Conn. in, I believe, 1965), and certainly not the rights of persons accused of crimes.
Kersten believes — and I suspect that the author of the the book she reports on, Matthew Spalding does, too — that her idea of liberty is rooted in the Enlightenment. It is something of a mystery to me that a person who devotes — and I use that word carefully — so much energy defending the hierarchy of the Catholic Church would suddenly become a fan of the Enlightenment.
But no matter, because the competing ideas of liberty were played out much more recently, relatively anyway, in the United States Supreme Court. All of you undoubtedly can recite from memory section one of the 14th Amendment to the Constitution, adopted right after the Civil War. Right? Just in case you can’t, here it is:
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.
For present purposes, we will focus on the language that I have italicized. You would think that an amendment to the Constitution that came on the heels of the Civil War would have the rights and the liberties of the newly freed slaves pretty well fixed as a purpose.
Well, wouldn’t you?
But it wasn’t long before conservatives began to hijack this language in the 14th Amendment to use it to protect the economic status quo. In other words, Katie’s brand of liberty.
The first time, I think, that the due process clause of the 14th Amendment was offered as a basis for striking down state economic regulation was in The Slaughterhouse Cases, decided by the U.S. Supreme Court in 1873.
The state of Lousiana had adopted laws that granted some monopoly rights to certain slaughterhouse operators. This grant, by the state was, according to the appellants, a deprivation of their property without due process of law. (They had a legitimate beef, so to speak, but this was in a time before the evil Progressives were able to get anti-trust legislation adopted, so they had to try something.)
The argument lost on a five to four vote. But a seed was planted.
Over the next several decades, a doctrine called substantive due process was used to strike down economic regulation by the states, especially wage and hour laws because, inter alia, they deprived workers of the right to work themselves literally to death. All in the name of private property and the freedom of contract.
It should seem a little ironic to you that some of the same people screaming “states’ rights” today would undoubtedly approve these substantive due process decisions which had the effect of limiting states’ rights.
Some of you will recall from your study of American history and the New Deal a wing of the Supreme Court called the “Four Horsemen.” They were the avatars of substantive due process and stood in the way of a lot of New Deal legislation, and on those grounds. (Although in the case of the federal New Deal legislation, it was the due process clause of the Fifth Amendment.)
The Four Horsemen (which included Minnesota’s own Pierce Butler) and their predecessor supporters of the doctrine of substantive due process on the Supreme Court were “judicially active” in a way that makes the modern judiciary mere pikers in that department. Substantive due process law was unmoored from anything other that the conservatives Justices’ idea of property rights and the freedom to contract.
With the elevation of Oliver Wendell Holmes and later Louis Brandeis to the Court, however, the winds of change did begin to blow. Usually in dissent, these two began to argue that the due process clause of the 14th Amendment was meant to protect the procedural due process rights of individuals, not create economic doctrine.
And slowly but surely, they won the day. They got a big boost when Chief Justice Taft retired and shortly thereafter died, and Justice Sanford died while on the bench. (Well, not while he was on the bench, but you know what I mean.) Herbert Hoover had intended to replace Taft with Sanford, but wound up appointing Charles Evan Hughes as Chief Justice; Hughes was a surprise and a disappointment to Hoover, no doubt.
And unlike the substantive due process doctrine, procedural due process was moored in ideas that were already in the Constitution: the Bill of Rights, which had not been applicable to the states in the original constitution. Some of you probably also remember the Incorporation Doctrine.
Interestingly, to me, anyway, is the fact that one early incorporation case, in an opinion by the then new Chief Justice Hughes, was Near v. Minnesota, the prior restraint case that I wrote about recently.
Kersten — and Tom Emmer’s, too — notion of liberty and natural law are really nothing more than a plea for return to the substantive due process doctrine.
Pierce Butler would be proud.