I want to harken back to what you said in your previous post. You stated that if one cannot determine the meaning of a legal statement from the words themselves, one should look at the context surrounding its passage. But before geting into that, it would only be fair to really see if there are truly other reasonable ways of simply looking at the text itself. You gave examples of how the due-process clause might be interpreted in different ways, but didn't provide any justification for them based on the text. What I was asking you to explain is how the phrase "due process of law" can be realistically construed to concern itself in any way with content of a particular law, when common sense would suggest that the word "process" only refers to how something is executed, not what it is. Sorry if I didn't make myself clear earlier.
I also want to revisit another point you made. You stated that it is inevitable that any particular piece of law isn't going to say everything that its authors intended to say, and therefore would require some extra investigation to determine the full meaning. That of course is true; the Constitution would have to be hundreds of pages long if it were to include every facet of meaning that was intended. Therefore, it's understandable that the drafters of a law would state the most basic points using well-chosen words, so that the rest of us would have something to build some meaning from. However, if your interpretation of a particular law results in something that can be easily expressed in fewer words, and with words with clearer meaning, than the words that actually comprise the text, then that would be cause for suspicion of that interpretation. Then, someone would be justified in asking why the framers simply didn't come right out and say it. I'm referring to your quote from Judge Brennan. After reading it, one wonders why the 14th didn't simply say, "The Congress and the federal judiciary shall have veto power over all State laws and policies." That's essentially the same thing. If that's what they had intended, then they really had an obligation to make that clear, especially since it would have resulted in such a profound shift in the balance of power between Washington and the states. And it was particularly dishonest of Brennan to cite the lack of clear intent on the part of the framers as justification for a power grab by the feds, when lack of clarity in a law, as I said earlier, should tend to invalidate it, not increase its scope.
And by the way, I did follow your link, and much of it seems to support my position. For one thing, it shows the lack of clear thinking by the framers in drafting the amendment. Also, in regards to the equal-protection clause, for example, the fact that it originally had language pertaining to race, which they deliberately dropped, would suggest that its scope was not to be in any way limited to race.
I do think I've understood what you're saying. I believe you to be saying that a state violates the due process clause only if it deprives someone of life, liberty or property in a manner that fails to comply with statutes passed by its own state legislature and that each state legislature may decide for its own state what constitutes "due process of law."
So, if you're sitting at the Supreme Court and you are reviewing a murder conviction of someone who claims his Fourteenth Amendment due process rights were violated because the trial judge refused to allow him a jury trial, then your decision would depend exclusively upon whether or not the state legislature in the state of conviction had passed a statute providing the defendant with a right to a jury trial. If so, and the trial judge defied the state legislature's directions, then the defendant was denied due process.
The problem that I have with this interpretation is that I don't think that people went to all of the trouble of adopting the Fourteenth Amendment just to make sure that state judges complied with the directions of state legislatures. The Fourteenth Amendment provides that "nor shall any State deprive any person of life, liberty, or property, without due process of law." I believe that state legislatures were intended to fall within the scope of the term "State" and that the due process clause obligates the State (including the state legislature) to comply with some minimum standards of fairness when disposing of a person's life, liberty or property. I do not believe, for example, that a state can, consistent with the due process clause, execute or imprison people without trials even if the state legislature enacts statutes providing for executions and imprisonment without trial. I firmly believe that the due process clause of the Fourteenth Amendment was adopted as a limitation on state laws and practices with the understanding that states would thereafter be held to some national standards of "due process of law." The real debate concerns just what those national minimum due process standards should be.
I also want to revisit another point you made. You stated that it is inevitable that any particular piece of law isn't going to say everything that its authors intended to say, and therefore would require some extra investigation to determine the full meaning. That of course is true; the Constitution would have to be hundreds of pages long if it were to include every facet of meaning that was intended.
The Constitution provides that "Congress shall have power to . . . provide for the common defence." I don't believe that we are in any sense crippled by our Founding Fathers' failure to itemize precisely what they meant by "provide for common defence." And I don't think that they phrased that delegation in such general terms simply because they ran out of parchment. I believe that their delegation of that power was made in general terms because they knew that they were incapable of determining for people in the distant future exactly what providing for the common defense might in the distant future require. So they delegated to future Congresses the job of determining what might be necessary and proper to provide for the common defense. Don't overlook the possibility that an inquiry into what our Founding Fathers might have really "meant" by providing for a common defense might lead to the simple conclusion that they "meant" for our present Congress to decide such issues based upon our present needs (at least so long as Congress doesn't try to quarter troops in people's houses in violation of the Third Amendment - LOL).
I'm referring to your quote from Judge Brennan. After reading it, one wonders why the 14th didn't simply say, "The Congress and the federal judiciary shall have veto power over all State laws and policies." That's essentially the same thing. If that's what they had intended, then they really had an obligation to make that clear, especially since it would have resulted in such a profound shift in the balance of power between Washington and the states. And it was particularly dishonest of Brennan to cite the lack of clear intent on the part of the framers as justification for a power grab by the feds, when lack of clarity in a law, as I said earlier, should tend to invalidate it, not increase its scope.
Well, Justice Brennan (in discussing the scope of Congressional authority under Section 5 of the Fourteenth Amendment) was merely referring to the same principle that I mentioned above with reference to Congressional power in the area of our common defense. That principle is that when a draftsman uses terms which are indefinite in scope, it is not unfair to assume that he/she did so intentionally for the purpose of creating greater latitude in possible meaning for future interpreters. If we find it acceptable that Congress was granted broad latitude in determining what is necessary to provide for the common defense, why should we find it unacceptable that Congress was granted broad latitude in determining what is necessary to provide due process of law or the equal protection of the laws?
And by the way, I did follow your link, and much of it seems to support my position. For one thing, it shows the lack of clear thinking by the framers in drafting the amendment. Also, in regards to the equal-protection clause, for example, the fact that it originally had language pertaining to race, which they deliberately dropped, would suggest that its scope was not to be in any way limited to race.
I agree with your assessment. And that is precisely what Brennan was saying.