Gorsuch, the 14th Amendment, and the nebulous void of moral reasoning

As expected, President Trump this evening nominated Neil Gorsuch to replace Antonin Scalia as Associate Justice on the Supreme Court. Given the Court's decades of abuse of substantive due process arguments (I will explain what a substantive due process argument is below), I continue to wonder how Judge Gorsuch thinks the due process clause of the 14th Amendment ought to be construed.

For example, the Court's recent Obergefell decision established a constitutional right to marriage between same sex couples. The majority opinion in that decision, written by Justice Kennedy, reasoned that state prohibitions against same-sex marriage were unconstitutional because they stood in conflict with the due process clause of the 14th Amendment of the Constitution. Let us test the reasoning behind that proposition.

The due process clause reads:

[N]or shall any state deprive any person of life, liberty, or property, without due process of law.

Now, surely, the point of this clause is not that a state may not deprive a person of life, liberty, or property at all. States execute persons convicted of capital crimes on a fairly regular basis, most assuredly depriving them of life. Likewise, states regularly deprive persons of liberty by incarcerating them when they have been convicted of a crime punishable by a prison sentence. And finally, states deprive persons of property all the time when they levy taxes on them. Thus, the 14th Amendment does not prohibit all state deprivations of life, liberty, and property, but only those that are carried out without due process of law.

How, then, do we determine whether such a deprivation has been carried out with or without due process of law? Presumably, by consulting the laws on the books and examining the procedures used to enforce those laws.

For example, Section 26 of Article XIII of the California Constitution grants the state the right to levy income taxes on me:

Taxes on or measured by income may be imposed on persons, corporations, or other entities.

Furthermore, my W2 form, forwarded by my company to the State, is legally valid evidence of my income for the past year. Finally, various state laws and rules establish formulas for determining the fraction of that income I must pay in tax. So, if I were to argue that the State of California, by levying an income tax on me, was depriving me of property without due process of law, this argument would founder in the courts because the State could not only make reference to various laws on the books granting it the authority to tax, but could also demonstrate that it had followed fair and well-defined evidence and procedures in making the assessment against me.

So, now let us turn to the matter of same-sex marriage. The argument is made that state prohibitions of same-sex marriage are unconstitutional because they are in conflict with the 14th Amendment. This is so, presumably, because the ability to marry is a species of liberty that is being denied to same-sex couples. But, now we must turn to our test of whether this denial is being carried out with or without due process of law. Once again, we do so by consulting the laws on the books and the procedures followed to carry out those laws. One such law was Michigan's Proposal 04-2, a duly passed amendment to the Michigan state constitution, which stated:

To secure and preserve the benefits of marriage for our society and for future generations of children, the union of one man and one woman in marriage shall be the only agreement recognized as a marriage or similar union for any purpose.

Presumably, the law intended that the county clerk, as a condition of issuance of the marriage license, follow the procedure of examining the applicants' birth certificates, which are considered legally valid evidence of identity and gender. Thus, it would seem, this particular deprivation was being carried out in accordance with a duly enacted law, namely, Proposal 04-2, and in accordance with a well-defined procedure, so that Michigan's deprivation of this particular species of liberty, namely, the liberty to marry a partner of the same sex, was carried out with due process of law.

We have reached the critical juncture of the substantive due process argument, the point at which the defenders of that argument depart from the solid footing of the law, and float off into the nebulous void of moral reasoning. For, the defenders of the majority opinion in Obergefell (and of other decisions based on substantive due process arguments, such as Roe v Wade) will say: "Well, yes, we do not deny that Michigan's deprivation of the liberty to enter into a same-sex union was in accordance with a duly enacted law and followed a well-defined procedure. But that is mere procedural due process. We can't just look at the laws on the books and the procedures that were followed. There are other moral criteria against which we may test: for example, we may consult our sense of natural justice, or our intuition of natural law. And when we consult those other sources, they tell us that Michigan's deprivation is unjust and must be overturned. In brief, due process cannot possibly have been followed unless we feel that the substance of the decision is just. In other words, we must have substantive due process."

With this argument (actually, a contradiction in terms), we enter into a very dangerous region. Through this reasoning, the defenders of substantive due process manage to untether themselves completely from every vestige of positive, written law and assert that the judicial decision at hand is to be based instead on a sense of natural justice. But whose sense of natural justice are we to refer to when making the judicial decision? Why, that of the defenders of the substantive due process argument, of course. And if their sense of justice is different from the moral sense of millions of voters in Michigan, well, so be it; the voters sense of justice must be overruled. If we follow this line of reasoning, it leads us to a form of government where we are ruled not by ourselves, but by the moral sensibilities of a majority of 9 judges sitting in the Supreme Court in Washington. As Justice Scalia wrote in his dissent from the majority opinion in Obergefell:

I write to call attention to this Court's threat to American democracy. ... [I]t is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.

We may be happy with (or, as Judge Scalia seemed to be, indifferent to) the outcome of Obergefell -- our gay friends and relatives have been granted the right to enter into a same-sex union -- but the form of government that imposes that outcome on us is certainly not what the Founding Fathers intended, being much closer to rule by a panel of ephors than a democracy, and we should find that form of government by aristocracy of Harvard and Yale Law grads abhorrent. This explains why it is so important that Justices be nominated to the Court who are not going to engage in specious substantive due process arguments of this kind.

And it is for that reason I would like to hear a disquisition from Judge Gorsuch during his confirmation hearings on the subject of the proper way to reason about the 14th Amendment. This is not a question about how he would decide a particular case, but about judicial philosophy in general. As such, I believe it would be perfectly appropriate for him to expound on the topic.

A parade of gifted thespians

If you didn't watch the Screen Actors Guild awards the other night, you missed out on a parade of gifted thespians. Each new speaker devoted a substantial portion of his/her acceptance speech to an impassioned screed against Trump, trying to outstrip the actors who had come before and soar to even loftier planes of high dudgeon. (Hating Trump while claiming that "Love trumps Hate" obviously makes for great career advancement in Los Angeles, provided, of course, that your outrage is not judged by the members of the Guild to be merely mediocre and lost in the din.) And then the cameras would pan out across the audience to show the various hot house flowers of Hollywood dressed in their silk gowns and jackets and coifed in their bird's nest hairdos, cheering ferociously in approval, confirming what most Americans have suspected for quite some time now, namely, that Hollywood has become a fantasyland of inbred liberal elites, pajama boys and Lena Dunhams speaking only to each other, their current level of hysteria so out of proportion to the actions Trump is taking that it merely demonstrates how completely they have departed their senses, like Attis, vagus animis, worked up into a frenzy he will later regret.

The tantrum on the Left

First you had Obama and Holder demonizing the police. Then you had sanctuary cities. Now you have the acting Attorney General refusing to enforce the legal and duly promulgated executive order of the President on immigration.

When County Clerk Kim Davis refused to issue marriage licenses to gay couples, liberals cheered as she was sued and eventually jailed for contempt of court. But now, Sally Yates will be apotheosized into the liberal pantheon for defying the law in exactly the same way.

The tantrum on the Left rages on. One only hopes they can keep it up for four years, for it is highly entertaining and can do nothing but redound to the benefit of Trump and the Republicans.

Obama, not Trump, a more apt comparison to Big Brother

I find it highly amusing that Adam Gopnik and other dandies of the Left are comparing the incoming Trump Administration to George Orwell's book 1984. The obvious comparison, and the one likely intended by Orwell, is rather between 1984 and the post-WWII Labour government of Clement Attlee. Even Gopnik himself admits as much:

As the British author Anthony Burgess pointed out a long time ago, Orwell’s modern hell was basically a reproduction of British misery in the postwar rationing years [in other words, the years of the Attlee Labour regime], with the malice of Stalin’s police-state style added on.

It was the British Labour regime that replaced Winston Churchill's Conservative government. It was the British Labour regime that the anti-Keynesian economist Friedrich Hayek condemned in his book The Road to Serfdom. It was the British Labour regime that Daniel Yergin critiqued in his book and TV series The Commanding Heights. It was the British Labour regime that Margaret Thatcher, the disciple of Churchill and Hayek, began to dismantle (to the great benefit of England) as soon as she became Prime Minister in 1979, leading the Conservative Party back to power. And the obvious political heir of the British Labour regime is the Progressive, Leftist Obama administration, not the incoming Trump administration.

Instead of spewing out purple prose that is somehow supposed to have some connection to Donald Trump ("Caligula, the mad Roman emperor, infamously appointed his horse Incitatus to the Roman Senate, and that has been for millennia a byword for cracked authoritarian action." Huh?), it would be good if Mr Gopnik actually familiarized himself with the history of intellectual and political developments in the late 20th and early 21st centuries.

Gorsuch's views on originalism and substantive due process?

From what I am reading, I'm guessing that Neil Gorsuch is going to be Trump's nominee to the SCOTUS. Judge Gorsuch seems to be an extremely well-qualified candidate and some evidence strongly suggests that he is an originalist, just as Judge Scalia was.

Other evidence, however, raises questions in my (perhaps feeble) mind. For example, his opinion in Browder v. City of Albuquerque uses a substantive due process argument to reach the decision. The opinion states:

The Supreme Court has interpreted this language as guaranteeing not only certain procedures when a deprivation of an enumerated right takes place (procedural due process), but also as guaranteeing certain deprivations won’t take place without a sufficient justification (substantive due process). Some suggest this latter doctrine with the paradoxical name might find a more natural home in the Privileges and Immunities Clause; others question whether it should find a home anywhere in the Constitution. But, the Supreme Court clearly tells us, home it has and has where it is. At the same time, the Court has warned that the doctrine should be applied and expanded sparingly “because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.” Washington v. Glucksberg, 521 U.S. 702, 720 (1997) (quoting Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992)) (internal quotation mark omitted). [emphasis added]

This is not a resounding repudiation of substantive due process. On the other hand, the opinion seems to be saying: "Hey, whatever our personal opinions may be on the use of substantive due process arguments, we must allow such arguments if we are required to allow them by the SCOTUS."

If I were Trump, I would require Judge Gorsuch to provide me with a written description of his judicial views on the use of substantive due process arguments in the cases Roe v Wade and Obergefell.

Judge Gorsuch is 49 years old and replacing Judge Scalia, a staunch advocate of originalism and ferocious opponent of the use of substantive due process arguments. Trump needs to make sure that he is actually appointing some one with similar views, especially when that individual is going to sit on the Court for decades.

Madonna: Fuck you, but I believe in love

Some quotes from yet another vulgar embarrassment of the Left, Madonna, as she spoke in the so-called "Women's March" yesterday in Washington:

And to our detractors, that insist that this march will never add up to anything, fuck you, ... fuck you! ... Yes, I have thought an awful lot about blowing up the White House. ... As W.H Auden wrote on the eve of World War II: "We must love one another, or die." I choose love.

Apparently, Madonna's willingness to love her neighbors does not extend to the millions of Americans, including the many millions of American women, who voted for Mr Trump.

All Madonna, Jane Fonda, and Meryl Streep have accomplished over the last couple of weeks is to reinforce Middle America's impression of the Democratic Party as a bunch of bi-coastal, New York, Hollywood, Nancy Pelosi elites. The majority of American women in the American heartland simply don't identify with this kind of violent and vulgar militancy.

I welcome, almost revel in, these rants as demonstrating to the entire nation the type of people who have become the core of the embarrassment that is the current Democratic Party.

As an aside, since we are quoting from great Western poets like Auden (although he is dead and white and male, hmmm problematic), let me quote from a great poet of the Left, Madonna Louise Ciccone herself:

Like a virgin, ooh, ooh
Like a virgin
Feels so good inside
When you hold me, and your heart beats, and you love me


Oh, oh, oh, oh, oh, oh, oh, oh, oh
Ooh, baby
Can't you hear my heart beat
For the very first time?

Lyrics for the ages, no?

Hanoi Jane is how the Left fights back?

This is what the Left comes up with?

Hanoi Jane Fonda, the aging Barbarella (btw, one of the most degrading and at the same time laughable female movie roles of my lifetime -- at least Meryl Streep is a great actress), rants on about penises and pussy power, accusing Donald Trump of being the Predator-in-Chief, conveniently forgetting that the original Predator-in-Chief was the Democrat Bill Clinton, whose wife, Mr Trump's opponent in the recent election, has denied his sexual assaults for decades, while an audience of like-minded left-wing La La Landers applauds her every word and Bill Maher drops the occasional f-bomb to demonstrate his liberal cred?

This is how the Democrats think they are going to recapture the American Middle? Don't they realize how completely they are alienating most of the American public? Oh well, let them keep it up. It is all so entertaining.