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To: Jim 0216

Taney did not invent the concept of Substantive Due Process. It’s origins can go back to James Otis’ arguments in the Writs of Assistance Case in 1761 and to Justice Chase’s opinion in Calder v. Bull in 1798. However, Taney’s decision was the only example of it’s actual application to strike down a statute until the two cases of Chicago, Burlington & Quincy Railroad v. City of Chicago and Allgeyer v. Louisiana in 1897. And it is something of a stretch to call Dred Scott a Substantive Due Process case. The idea that slaves were property subject to ownership was not novel and a relatively widely recognized property right at the time. Dred Scott was more of a straight up application of Constitutional construction in the line of Marbury v. Madison, Gibbons v. Ogden or McCulloch v. Maryland.


12 posted on 03/01/2017 8:35:31 PM PST by henkster
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To: henkster
Taney reached his Dred Scott decision by applying the unconstitutional oxymoron of "Substantive Due Process".

Due process is simply a procedural requirement of notice and a fair hearing by any tribunal hearing a case.

[T]he rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. Scott v. Sanford, p 540. https://www.law.cornell.edu/supremecourt/text/60/393#writing-USSC_CR_0060_0393_ZO

Taney is quoting the guarantee of due process of the fifth amendment. But in his next sentence he does something else.

And an act of Congress which deprives a citizen of the United States of his liberty or property merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law. (Id.)

Here, Taney "transforms this requirement of fair procedures into a rule about the allowable substance of a statute." Robert Bork, The Tempting of America 31 (1990).

"This was the first appearance in American constitutional law of the concept of 'substantive due process.'" Id.

"[T]here is simply no avoiding the fact that he word that follows 'due' is 'process'" Id 32.

27 posted on 03/06/2017 4:07:27 PM PST by Jim W N
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