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Substantive due process. It must be preserved.

I have an article today in The UnPopulist that tries to explain, as succinctly as I can, what "substantive due process" really means--why it's not only a legitimate constitutional theory, but our oldest and most precious constitutional protection. Arguments against it typically misrepresent the theory, or ignore its meaning entirely. In a day of merely loud partisanship, this article is an effort at nuance. Excerpt:

Banning ipse dixit government actions was a radical idea when the Magna Carta was written. It pledged that the king would not imprison people or seize their property “except by … the law of the land,” a phrase lawyers have recognized for centuries as synonymous with “due process of law.” The “law of the land” or “due process” clauses were important innovations because they meant that not everything government officials do qualifies as “law.” If they cross certain lines, their actions aren’t the law of the land, but are (to borrow a phrase from Alexander Hamilton), “merely acts of usurpation, [which] deserve to be treated as such”—i.e., null and void.

And since it’s judges’ job to interpret the laws, it’s incumbent on them to discern the lines between legitimate laws and invalid acts of usurpation. That’s the principle called “substantive due process,” and all other constitutional protections—from protections for free speech to rules governing criminal trials—were built upon it over the centuries. These additional constitutional protections address particular types of invalid ipse dixit acts, such as censorship or the uncompensated seizure of property, but they don’t supplant the broader prohibition against all arbitrary actions by the government.

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A flawed new edition of Jefferson's Notes on Virginia

In my latest book review for The Objective Standard, I look at a new scholarly edition of Thomas Jefferson's book Notes on Virginia. Alas, as is the fashion nowadays, the book goes out of its way to try to find nefarious motives behind Jefferson's writing of the book, even when simpler, more obvious explanations are probably correct. Excerpt:

Forbes...is not content with saying that Jefferson’s ideas on race reflected majority attitudes [about race]. He claims Jefferson created those attitudes. In his eyes, the Sage of Monticello used Notes as “an opportunity” to “decouple” black people from the equality principle and to establish “a rhetoric of authority that explicitly rejects appeals to reason, logic, or law.” In other words, Jefferson was consciously fashioning a “subtl[y] brillian[t]” stratagem for depriving black people of their claim to liberty.

This is an extraordinary assertion, and Forbes does not prove it. Instead of dispassionately seeking to understand Jefferson as he understood himself, Forbes’s argument rests largely on his own characterizations of Jefferson’s wording based on 21st-century attitudes. For example, he claims in one footnote that Jefferson’s repeated misspelling of Phillis Wheatley’s name was “an intentional slight, not a slip.” He offers no proof of this, and the reality is that Jefferson had idiosyncratic spelling habits, as did many of his contemporaries; he persisted in some errors his entire life (he never did figure out the difference between “its” and “it’s,” for example). Even if Jefferson had intended this as an insult, variant spelling of names was so common that his readers would not have recognized it. Forbes relies on dubious literary inferences, too, such as similarities between Jefferson’s word choices and those of other writers, when these are probably just coincidences. For example, Jefferson referred in one passage to the “eternal monotony” of black complexions—a phrase also used by British loyalist John Shebbeare while criticizing pro-American writer Richard Price for repeatedly characterizing King George III’s treatment of colonists as “slavery.” Shebbeare complained of Price’s “eternal monotony” in using this word, likening it to “the drone of a Scotch bagpipe.” In 1784, while Jefferson was writing Notes, Price published a second pamphlet, which again praised the American Revolution but condemned the enslavement of blacks. “It is hard not to conjecture,” Forbes concludes, “that reading Price’s pointed critique of American slavery in his [second] pamphlet triggered in Jefferson thoughts of Price’s [first] pamphlet and the ‘eternal monotony’ of its metaphors of slavery.”

But this is surely reading too much into Jefferson’s use of these two words. Shebbeare made no reference to black slavery when using the phrase “eternal monotony,” and Price’s commentary on slavery in his second pamphlet was only one paragraph long. It’s more probable that Jefferson adapted the phrase “eternal monotony” from Alexander Pope’s translation of The Odyssey—which referred to the “unhappy race” of dead souls in Hades, “whom endless night invades”—or from Thomas Gray—who used the line “closed his eyes in endless night” in a 1768 poem. Jefferson was a fan of both poets but appears never to have mentioned Shebbeare.

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Supreme Court 2022 roundup

My colleague Jon Riches and I yesterday hosted a discussion about this past term's Supreme Court decisions. We discuss important rulings about the powers of bureaucratic agencies, how the Court decides what rights qualify as "fundamental," and the meaning of the Due Process Clause, among other things. You can watch it here.

Blacklisted for playing at the park? Arizona's child neglect agency goes too far

I and my friend Adi Dynar have an article in the Arizona Republic about our lawsuit against the Arizona Department of Child Safety, which has placed our client's name on the state's blacklist because she let her son play in a public park for a half hour while she went inside the grocery store. Excerpt:

[Arizona] law lets unelected, unaccountable bureaucrats blacklist people like Sarra based on what lawyers call “probable cause.” “Probable cause” is far less evidence than the “reasonable doubt” standard required to convict someone of a crime. It’s even less than the “preponderance of evidence” standard that governs civil lawsuits. In fact, Arizona courts have said “probable cause” is a kind of suspicion – it means the government thinks it’s possible the person did something wrong. Worse, a person’s name can be put on the registry without a trial through an “administrative” hearing. This type of hearing doesn’t follow the rules of evidence that apply to courtrooms, and it’s presided over by a hearing officer, not a judge. Amazingly, even if the officer finds someone not guilty, DCS’ director can override that ruling and put her on the registry anyway.

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Pushing back against the Permission Society

I have an article in Discourse about how the Supreme Court's recent decision in the New York gun-rights case relates to all laws that require you to get a permit to do something. Will the New York case spur lower courts into enforcing the constitutional protections that the Supreme Court mandated decades ago? Excerpt:

Courts have struggled with applying that anti-prior restraint rule in other contexts, however. Take motion pictures, for example. Between the 1920s and the 1960s, state and local governments often required theaters to obtain permits before showing films—which gave licensing officials broad power to censor movies they thought people shouldn’t see. Amazingly enough, the Supreme Court initially denied that films were entitled to any constitutional protection at all—a position it only reversed in the 1950s, when it finally admitted that movies are “included in the definition of ‘press’ whose freedom is guaranteed by the First Amendment.”

Yet the justices allowed movie permit requirements to remain in place. Watering down what had once been an absolute rule against prior restraints on speech, they instead declared that such requirements were acceptable as long as they provided certain “procedural safeguards”: (1) the criteria for getting the permit must be clear and unambiguous; (2) the government must give anyone applying for a permit a specific deadline within which that permit would be granted or denied; and (3) the applicant must be given a hearing before a neutral judge in case the government wrongly withheld the permit. And the Court made clear that these “safeguards” were required not only when government imposed a prior restraint on speech, but whenever the government “makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon . . . a permit or license”—that is, whenever government imposes a licensing law on any constitutional right.

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