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... upheld the viability standard. Most recently, in Stenberg v. Chart, the Court again held that "before viability... the woman has a right to choose to terminate her pregnancy. " The quickening standard may not be perfectly tailored to modern medical science (e. g.
we now know that quickening is perceived later in pregnancy for overweight women), but the quickening standard certainly has a much firmer legal history than the viability standard, it measures sensation and life with more accuracy than the viability standard, and it would limit abortions when an unborn baby is highly developed and alive. It should be noted that legal dictionaries have various different definitions of quickening, and sometimes the definition involves fetal movement regardless of whether the movement is perceived by the mother (e. g. see Barron's Law Dictionary by Steven Gifts, c. 1984).
Likewise, the words "quick with child" are sometimes defined in different ways (e. g. see Black's Law Dictionary, c. 1979, which defines this term as "having conceived, " whereas English law recognized that pregnancy does not necessarily imply being "quick with child"). [ 5 ] The Magna Carta stated that "No freeman shall be taken, or imprisoned, or dissected, or outlawed, or exiled, or in any way harmed -- nor will we go upon or send upon him -- save by the lawful judgment of his peers or by the law of the land. " Lord Coke, citing and commenting on the Magna Carta, said, "no man shall be dissected, & c. unless it be by the lawful judgment, that is, verdict of equals, or by the law of the land, that is, (to speak it once for all, ) by the due course and process of law. " This famous passage from Coke appears in several Supreme Court cases (e. g. see Konigsberg v.
State Bar, Hovey v. Elliott, Trustees of Dartmouth v. Woodward, and Hurtado v. California). It has long been established that the phrases "by due process of law" and "by the law of the land" are constitutionally synonymous, and the Supreme Court has repeatedly said so (e. g.
shortly after ratification of the 14 th amendment, the Court held in Walker v. Sauvinet that "Due process of law is process due according to the law of the land, " exactly as it had held 20 years earlier in Murray v. Hoboken Land). Indeed, when the states proposed a Bill of Rights in 1788, Virginia proposed the "law of the land" version and New York proposed the "due process of law" version. Even if we suppose that there is some meaningful difference between the prevailing New York requirement and the rejected Virginia requirement, still the New York requirement is by its own terms inapplicable to legislation. Alexander Hamilton of New York stated that "the words 'due process' have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of legislature" (emphasis added).
Hamilton was discussing New York's constitution and bill of rights, which said that citizens could not be deprived of their various constitutional rights "but by" due process of law (the due process clauses of the U. S. Constitution use the word "without" instead of "but by" or "unless by"). [ 6 ] If "law of the land" in the Constitution's Supremacy Clause (that's the clause stating that federal law "shall be the supreme law of the land") is interpreted as limiting the types of laws that Congress can make, then numerous other parts of the Constitution become completely and needlessly superfluous, including, for example, the prohibition against Bills of Attainder in Article I, Section 9, Clause 3 (a "bill of attainder" inflicts punishment against particularly specified people without granting them a trial). It is true that Daniel Webster once argued, in Trustees of Dartmouth v. Woodward, that the term "law of the land" does have a very specialized meaning: "Everything which may pass under the form of an enactment, is not, therefore, to be considered the law of the land.
If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative judgments, decrees and forfeitures, in all possible forms, would be the law of the land. " However, it is important to bear in mind that Webster was discussing the words "law of the land" as they appeared in a state constitution, and not as used in the federal constitution. In any event, the U. S. Supreme Court decided not to address this argument by Webster, because interpretation of a state constitution is best done by a state court. Note that Alexander Hamilton (in Federalist # 33) emphasized in 1788 that "the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of federal government" (emphasis added). The words "law of the land" in the Constitution thus do not have some greater meaning entitling the judiciary to strike down laws inconsistent with that greater meaning.
Interestingly, Hamilton had articulated a slightly different view in 1787, when he indicated that "law of the land" means presentment and indictment, and process of outlawry, as contradistinguished from trial by jury, but even Hamilton's 1787 interpretation places no substantive limits on the content of the law. Likewise, Blackstone wrote the following in 1765: "It were endless to enumerate all the affirmative acts of parliament wherein justice is directed to be done according to the law of the land: and what that law is, every subject knows; or may know if he pleases: for it depends not upon the arbitrary will of any judge; but is permanent, fixed, and unchangeable, unless by authority of parliament. I shall however just mention a few negative statutes, whereby abuses, perversions, or delays of justice, especially by the prerogative, are restrained. It is ordained by magna carta, that no freeman shall be outlawed, that is, put out of the protection and benefit of the laws, but according to the law of the land... " I argue that it is wrong to consider the 14 th Amendment in isolation, without looking at the Fifth Amendment, the Supremacy Clause, and the other related parts of the Constitution.
In stark contrast, take a look at Chicago, Burlington & Quincy v. Chicago regarding just compensation for private property taken by a state for public use; the Supreme Court completely ignored not just the Supremacy Clause but also the Fifth Amendment's Takings and Due Process clauses as well! In this respect, a somewhat more reasoned opinion was rendered by the Court in Hurtado v. California regarding due process: "We are to construe this phrase in the fourteenth amendment by the usu's loquendi of the constitution itself. The same words are contained in the fifth amendment. That article makes specific and express provision for perpetuating the institution of the grand jury, so far as relates to prosecutions for the more aggravated crimes under the laws of the United States.
It declares that 'no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall he be compelled in any criminal case to be a witness against himself. ' It then immediately adds: 'nor be deprived of life, liberty, or property without due process of law. ' According to a recognized canon of interpretation, especially applicable to formal and solemn instruments of constitutional law, we are forbidden to assume, without clear reason to the contrary, that any part of this most important amendment is superfluous. The natural and obvious inference is that, in the sense of the constitution, 'due process of law' was not meant or intended to include, ex vi termini, the institution and procedure of a grand jury in any case. The conclusion is equally irresistible, that when the same phrase was employed in the fourteenth amendment to restrain the action of the states, it was used in the same sense and with no greater extent... " As far as I am aware, no Supreme Court decision, apart from the dissent in Adamson v. California, has bothered to seriously examine the intent of the people who wrote the Fourteenth Amendment. In introducing the proposed Fourteenth Amendment to the House on May 8, 1866, Mr. Stevens speaking for the Committee on Reconstruction said quite clearly that, "The first section prohibits the States from abridging the privileges and immunities of citizens of the United States, or unlawfully depriving them of life, liberty, or property, or of denying to any person within their jurisdiction the 'equal' protection of the laws" (emphasis added). [ 7 ] The Fourteenth Amendment is not a model of clarity, and it is likely that various aspects of it were perceived differently by the various different state and federal legislators who adopted it.
It is sometimes argued that, if the Privileges and Immunities Clause of the 14 th Amendment (PIC 14) truly incorporated the enumerated rights protected from federal intrusion by Amendments One thru Eight, then it would follow that the Due Process Clause of the 14 th Amendment would be superfluous in view of the Fifth Amendment's Due Process Clause. The flaw in this argument is that PIC 14 applies only to "citizens" whereas the Due Process Clause of the 14 th Amendment applies to "any person" including non-citizens. In other words, the authors of the 14 th Amendment may have wanted every state to be automatically bound by the Bill of Rights and other federal constitutional protections with respect to United States citizens, and for every state to also provide due process to foreigners. This aspect of the Fourteenth Amendment would have been much more clear if the word "other" had been used (i. e. "deprive any other person" instead of "deprive any person"), and this whole matter would have been even more obvious if the amendment had said "deprive any further persons" instead of "deprive any person. " As discussed later in this footnote, it is very possible that the people who framed and ratified the 14 th Amendment intended for Congress to have discretion in deciding whether and to what extent the Bill of Rights would be enforced against the states. The U.
S. Supreme Court has said that Section 5 of the 14 th Amendment (giving Congress enforcement power) is remedial rather than substantive, and therefore does not allow Congress to alter the scope of the rest of the amendment (see City of Boerne v. Flores). However, at least some of the authors of the 14 th Amendment understood Section 5 of that amendment as an exclusive means of enforcing Section 1, so that no state would be compelled to do anything without a congressional enforcing statute subject to judicial review (see Puerto Rico v. Branstad confirming that various provisions of the Constitution were not viewed as self-enforcing back in the 1800 's). This idea that a statute would be necessary to give meaning to Section 1 of the Fourteenth Amendment is especially applicable to the Privileges and Immunities Clause of the Fourteenth Amendment, because, as discussed below, it was modelled after the Privileges and Immunities Clause of Article IV which has a meaning that expands and contracts depending upon the enactment of state statutes.
The Privileges and Immunities Clause of the 14 th Amendment (PIC 14) has pretty much been a dead letter since the 1870 's. However, it is interesting that the Supreme Court has recently applied PIC 14 for the first time in decades, in the case of Saenz v. Roe. The words "privileges and immunities" in the Constitution have often been understood to fall within the group of rights that are "fundamental" provided that those rights have "at all times" been enjoyed by the citizenry in the United States (see the 1823 case of Cornfield v. Coryell decided by Justice Bush rod Washington). Extensive historical evidence about the intent underlying the Fourteenth Amendment can be found in Adamson v.
California, although Adamson was not mentioned in the recent Saenz decision. From the discussion in Justice Black's dissent in Adamson, it is pretty clear that at least some of the authors of the 14 th Amendment intended that PIC 14 should incorporate the Bill of Rights, so as to apply the Bill of Rights to the states as well as to the federal government. Both before and after the 14 th Amendment's adoption in 1868, the prevailing view has been that the Privileges and Immunities Clause of Article IV (PIC 4) "does not confer on the citizens of one State, in all other States, specific and enumerated privileges and immunities, " as Justice Curtis put it in his Dred Scott dissent. Indeed, it is implicit in the opinion of Chief Justice Marshall in Barron v. Baltimore that PIC 4 need not include the protections of the Bill of Rights. In other words, the consensus view prior to 1868 was that, if any citizen of a state "goes into another State, the Constitution clothes him, as to the rights of person, with all the privileges and immunities which belong to citizens of the State, " in the words of Chief Justice Taney's opinion in Dred Scott.
Justice Miller restated this consensus view of PIC 4 in the Slaughter-House Cases, saying that PIC 4 provided "no security for the citizen of the State in which [rights] were claimed or exercised. Nor did it profess to control the power of the State governments over the rights of its own citizens. Its sole purpose was to declare to the several States that, whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction. " Likewise, Justice Field's Slaughter-House dissent opined that "under the fourth article of the Constitution, equality of privileges and immunities is secured between citizens of different States... " Although some of the framers of PIC 14 believed that "privileges and immunities" in Article IV necessarily included the rights specified in the federal Bill of Rights, that view was emphatically not the prevailing view either before or af...
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Research essay sample on Due Process Clause U S Supreme Court
