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To: general_re; inquest
Here's an interesting take on 'due process', for you two students of history:

           In its discussion of the scope of "liberty" protected by the Due Process Clause of the Fourteenth Amendment the Court stated:

Neither the Bill of Rights nor the specific practices of the States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U.S. Const., Amend. 9.
As the second Justice Harlan recognized:

     "[T]he full scope of the liberty guaranteed by the Due Process Clause `cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty´ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on.
  It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment."

Poe v. Ullman, supra, 367 U.S. at 543, 81 S.Ct., at 1777

117 posted on 05/29/2002 9:49:30 PM PDT by tpaine
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To: tpaine
Well, that's plenty interesting, but they don't explain how "process" would have anything to do with the substance of a law. Maybe you can fill in the blanks on that one. Anyway, to answer your previous questions:

What then, is the 14ths purpose, if it does NOT apply the BOR's to the states?

I went into detail about that in #28, explaining the meaning of privileges and immunities, due process of law, and equal protection of the laws. If you don't want to go through all those details, then I gave the short version at the bottom of the post: "The common thread running through all three is that they are simply prohibitions against the worst types of potential abuses of state power, not a blanket protection of unspecified natural rights. It's the job of the peoples of those states to make sure their own constitutions contain the appropriate protections, and ultimately, to make sure that their governments respect their rights."

And why do you oppose an amendment that protects your own individual rights?

Actually, it's an amendment that's billed as a protection of individual rights. It's unnecessary because my own state constitution already contains the appropriate protections; and it actually makes matters worse, because it's rarely used in a manner that protects individual rights, and in many cases doesn't even pretend to (often, it's more about "group rights"). And so, whether or not it was intended as such, it's been the impetus for an unprecedented power grab by the feds, which has consistently eroded freedom over time.

118 posted on 05/30/2002 7:14:40 AM PDT by inquest
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To: tpaine
It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.

Purposeless restraints. Excellent key concept!

Thanks.

121 posted on 05/30/2002 8:50:32 AM PDT by Bobsat
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