Читать книгу Justice Rehnquist, the Supreme Court, and the Bill of Rights - Steven T. Seitz - Страница 6

We take note of economic substantive due process, but we will not develop that theme in this book. SCOTUS was aggressively using the contracts clause of the first Constitution, and some interpret that as evidence of growing attention to individual sovereignty. Two additional premises question that conclusion. First, SCOTUS now considered corporations as persons, so contract enforcement was a mixed action, raising matters like strikes, pickets, walkouts, etc. Second, a manual labor contract between an individual and a corporation is not liberty. If I am an unskilled laborer whose hands are infinitely substitutable using other laborers, then I have little premium to offer a corporate employer. Denying collective action by labor is not fair economic substantive due process.

We do look at non-economic substantive due process. When Congress and then the states were building the Bill of Rights, one of the governing epistemologies saw the human mind as a blank tablet upon which the physical and moral laws of the universe were impressed. These moral laws were so basic that they governed human beings around the globe. They were so fundamental that the Founding Fathers did not include them in any proposed amendment, because enumerated rights rested upon them. Nature had already impressed these upon the human mind. These fundamental rights, whether mystical or secular, needed a Constitutional home. Slaughterhouse removed the privileges and immunities clause from contention, so jurists found a home in the due process clause of the 5th and 14th Amendments. The triangle of sovereignty began changing public policy.

The courts were slow to recognize a triangle of power among the federal government, the state governments, and individuals. In the early days of the republic, the anti-Federalist myth that their governments were closer to the people and hence more representative carried for a while. Some of these states governed significant territory, numerous subpopulations, and diverse economic interests. Economic elites controlled many state governments and governed in their own interests. Their use of the police powers, left to the states in the original distribution of power, became increasingly onerous. Average people often found themselves at odds with both the central government and the state government. Because of the division of power, the individual had difficulty getting one of these governments to balance the other. The triangle of power emerged by necessity, even if extremely slowly.

In its focus on the 2nd Constitution, this book examines the emergence and development of the triangle, and more explicitly on individual sovereignty. Clauses in the Bill of Rights and the Civil War Amendments were critical resources for individual sovereignty in the calculus of power. The book’s viewpoint requires a genetic or developmental trace of the evolution of individual sovereignty. We thematically look at cases over a lengthy period to see how the court proceeds in this endeavor, sometimes backtracking, and sometimes taking a bold leap forward. The genetic method chronologically looks at theme-related cases. This makes the book unique in two respects: the chronological theme development and the emphasis on individual sovereignty. The variations between and among judges is of far less importance than stare decisis, the major source of continuity. The latter is an important force for legal coherency, legal order, and precedential guidance.

Although not planned that way, the court system became the arbiter among the three powers. It could stop central or state government actions. The Bill of Rights’ negative logic meant that a government action may have intruded into a forbidden area. The court could affirm the Constitutionality of a government action or mark it as a governmental intrusion into forbidden territory.