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Friday, June 27, 2008

For those who are interested in such things...

I wrote a post on the 14th Amendment and the doctrine of incorporation here. This post was in response to Timothy Sandefur's recent erudite post on the subject, which can be found here.

An excerpt from my post:

The substantive due process interpretation of the [Due Process] Clause requires the states not only adhere to the right process, but also that the laws they pass by way of that process meet additional, more-than-formal requirements. According to the vulgar form of incorporation, these are the requirements set out in (most of) the Bill of Rights.

...

If California meets the procedural standards for the making of a law, but does not meet these other, substantive standards, then it hasn't made a law at all. Thus, when it puts people in jail on the basis of that "law" it is depriving them of their liberty without due process. It would, in fact, be exercising naked coercion, might without right.

Posted by Terrence Watson on June 27, 2008 | Permalink

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