“Applicable Principles”, “Substantive Due Process”, and Real Originalism in Constitutional Interpretation

One could argue people have a natural right to healthcare, and no natural right to a jury trial, because in early American history every person who was sick in the street got attention from someone, and there were many innocent people in prison or even killed like Goodwife Glover. Without a historically proved universal natural right of the innocent to not be in prison, the government has a legitimate interest in saving money or something, which can be balanced against the Sixth Amendment to not give everyone a jury trial. (This sounds a little bit like plea bargains.)

This exposes that the question is not what outcome is good, but what process is good? Is feeding people good? Okay, so the government will build a bakery in every town and feed everyone.

The standard error people make, is saying we know what outcome is good, and then assuming the government can legally require and produce that outcome without difficulty. So we can choose to save money, by having the mayor decide who is guilty rather than a jury. The mayor may be smarter and know more about law than the average juror, so this could get the desired outcome of keeping the innocent out of prison, and the guilty in prison.

The historical error made by asking what outcome is good, rather than what process is good, is transferred to Constitutional interpretation, by asking what are our historical natural rights? Judges must instead look to history and text to understand the generally applicable principles of what process is good, in the narrow area of processes and outcomes addressed in the Founding documents.

The question is then by what process can we protect the natural right of innocent people to not be in prison, and by what process can we give everyone free healthcare? The process of people on the Internet producing endless lies and gossip about who is guilty, and then bringing that gossip to a judge to put his stamp on it, is unfeasible. And the process of taxation and creating government administrative power, justified by the right of people to be cared for, can have its promised results compared to the actual historical outcomes of such schemes.

In U.S. v. Rahimi Justice Kavanaugh said “this Court determines whether a democratically enacted law or other government action infringes on individual rights guaranteed by the Constitution… the Court does not implement its own policy judgments about, for example, free speech or gun regulation. Rather, the Court interprets and applies the Constitution by examining text, pre-ratification and post-ratification history…”

Kavanaugh then goes on to say there is a difference between the Constitution clearly specifying some things like a two-thirds majority vote in the legislature, and being vague or general about others, like whether we have a natural right to hunt. So we have to look at history, to see what our natural rights are. This is wrong.

What Kavanaugh misses is that the Constitution is clearly specific about processes – the process for electing people and passing laws – and vague about rights or outcomes, the laws passed, and the natural rights protected. The debate over what the Constitution says, is not about whether dangerous people should be allowed to own guns, or innocent people should be in prison, or whether a minimum wage will increase unemployment. The debate is whether a king or a legislature deciding, will produces laws with public benefit. And whether any process by which the federal government regulates firearms of ordinary citizens, will obtain beneficial outcomes without being abused to oppress natural rights.

Kavanaugh casually transitions from restrictions on the government creating a process – “the government could never regulate speech or guns in any way” – to whether an outcome is allowed – “not a right to keep and carry any weapon whatsoever”. The Second Amendment is not a right to carry weapons. It is a right against the federal government creating any process, which could infringe the rights you do have. This process restriction is based on the generally applicable principle, informed by history, that if given any power to perform surgery between natural rights and legal restrictions on gun ownership, the king will abuse the process to disarm people as a means to oppress them.

The question is not whether a right “comes with exceptions”. By definition, exceptions to rights are not rights. Dangerous people chasing innocents down the street do not have a right to carry guns. The question is whether restrictions on processes have exceptions. And that depends on whether the exceptions to the restriction on the process, successfully limits attacks, to attacks on the exceptions to the right. Does the process created to attack the exception, have the risk of being clumsy or corruptible or abused, to infringe the actual right? Does allowing any process strip the natural right, by stripping protections against a corruptible process? History and generally applicable principles, inform the answer to that question.

Laws attempt or promise to create outcomes, often ignoring or glossing over whether the tragic human process will actually produce the outcome, often turning on who decides. Kavanaugh then incorrectly examines whether the promised outcome infringes rights, not whether the process created by the law infringes rights (perhaps unintended or intended but politically condoned). The Second Amendment restricted the process: The federal government will not decide who can own guns. It was very specific. There is a Senate and a House of Representatives. Of course they will not pass any law that infringes natural rights, that could have been one Amendment. But they will specifically not create processes for infringing rights in these known historically corruptible areas, of guns and political speech and religion.

It may be that the local government can infringe your right to hunt without disarming minority factions, but the federal government cannot. So that a local judge can perform surgery to separate gun rights, but not the federal government cannot. The Fourteenth Amendment passed, when generally applicable principles showed a locally-elected judge or sheriff would lock up black people or people from another religion without due process, the same as if some remote federal government or a king was doing it. Cuba shows isolated states are just as abusive as federations.

The problems the Framers addressed in the Constitution were not to defend the economic processes of capitalism against the mirage of industrial central planning or universal healthcare. They spent relatively little time grieving about The King telling farmers what crops to plant. The Framers went little beyond the rights to private property and taxation without representation. They mainly addressed themselves with problems of war, governance, law, and judicial systems, that protect the most basic freedoms or natural rights from a king and the majority faction in tribal collectives, and which mitigate war between such groups.

So we not only can, but must look to history to find the generally applicable principles codified into processes by the Framers, and we cannot look to history to find outcomes. It is largely irrelevant to debates about Constitutional interpretation, whether people historically believed they had a natural right to protect their property and nation, and to hunt for food. The question is what history informed the Framers’ view of the processes for regulating guns? History showing that a foreign adversarial faction or ruler would indiscriminately label people dangerous, means that no process can be created which allows one faction to determine which members of another faction are dangerous, to the extent that any process will be corrupted to disarm and oppress adversaries and strip them of their natural rights.

If the Founders lived with a process for regulating gun ownership by dangerous people, then only that process is allowed. Or whether a similar process is allowed by the Second Amendment, must be discovered by applying the generally applicable principles. Is the process whose legality we are considering, more likely to be corruptible to oppression than the process the Framers allowed. Is the new process therefore like the ones the Framers prohibited, where The King labels members of opposing religious factions dangerous? Does a local judge or a remote federal government decide? Does the means of enforcement allow targets to continue to hunt and defend their homes, or does it create an opportunity to put unpopular people in prison in kangaroo courts under color of law?

The question is not whether the intended outcome is narrowly tailored to the government interest – “only dangerous people are prohibited from owning guns”. It is whether the process is sufficiently nimble and selective to not infringe the natural right – “girlfriends who commit perjury are prosecuted, judges are not elected by a faction with an opposing religion, only a jury of peers can determine who is dangerous”. We cannot look to which outcomes are good, which is too obvious, and does not inform which processes for pursuing those outcomes are legally allowed.

In Vidal v. Elster, Justice Barrett said “a rule rendering tradition dispositive is itself a judge-made test. And I
do not see a good reason to resolve this case using that approach rather than by adopting a generally applicable principle.” Barrett went on to say “content-based trademark restrictions have long been central to trademark’s purpose of facilitating source identification, and they have not posed a serious risk of censorship.”

This is like saying “Courts have countenanced the use of informers from time immemorial” versus “historically, letting prosecutors decide which of their own witnesses to prosecute for perjury, does not interfere with the right to a jury trial or of innocent people to not be in prison.” We can easily look at history, to see that prosecutors coercing jailhouse witnesses does nullify the right to a jury trial and put the innocent in prison. It violates general principles of separation of powers, excluding coerced confessions, and isolating punishing those who are actually guilty of crimes from punishing people who are simply unpopular. We must apply general principles to see why we have the right to a jury trial, not find an excuse from history by seeing that prosecutors historically used informers.

The Framers of the Constitution did not say “What natural rights or outcomes from history or common law we are trying to codify?” They said “What are the generally applicable principles that we are we are trying to apply?” Those principles were proposed in the Federalist Papers. Such as the idea that kings are always wanting to go to war. There is little instruction in either the general principles applied by the framers, or the history which informed those principles, to stop the government from taxing you to provide healthcare to others. So it is left to us today to apply our own general principles.

The trademark office might allow a t-shirt retailer to protect the brand “Guns Are Freedom, LLC” but say “Abortion Rights Merchandise Corporation” is too general. So then you look to history to say what Justice Barrett said “More than a century’s worth of precedent reflects that trademark law has always been content based without functioning as a ready tool of Government censorship.” A different view of history was taken for the right to a trial by a jury of peers in the Declaration of Independence, saying “For transporting us beyond Seas to be tried for pretended offences”. And a quick look at history, shows jailhouse confession witnesses allow Madison’s “stronger faction” to torture the innocent with lies.

So there is historically a problem when executive-branch officers can accuse their adversaries of crimes, with no jury to decide whether they really did commit the crime, or their crime is perhaps their race or political beliefs. The historical decisions of the trademark office “do not set off alarm bells signaling the likelihood that official suppression of ideas is afoot”, the historical decisions of the executive branch about guilt of crimes do. Today’s judges do not need to know the consequences of competition in the ice industry, to understand what principles the authors of the Constitution were applying.

You cannot interpret the Constitution, if you cannot understand the principles. This is different from predicting the consequences of competition in the ice industry in New State Ice v. Liebmann. At their most basic level these principles are the move from collective decision making, to distributed decisions that bring together 1) the knowledge of the domain of the decision, e.g. farming, 2) the information the knowledge is to be applied to, e.g. the precipitation in a certain tract of land, and 3) incentives and constraints that convey public costs and benefits as costs and benefits to the decision maker, e.g. the price system. But the Framers applied these principles not to competition in the ice market or the regulation of optometrists, but to the separation of powers and corruption of elected officials, among increasingly complex and diverse agricultural trading communities.

Originalism is the original generally applicable principles. And this is not what outcome is good, but who decides and is it corruptible? Do law or history or general principles inform us whether it is corruptible? Judges must “substitute their judgment” about how those principles apply to new phenomena. Does history or law, such as the Seventh Amendment, inform us whether it is corruptible? Judges cannot “erect our prejudices” about whether the government has a legitimate interest in limiting competition in the ice market, or whether some economic process creates some public benefit. But judges must interpret generally applicable principles applied by the Framers, to the processes approved and disallowed in the judicial and legislative domains of US Constitution, to fit new laws and processes not outcomes into the historical rules.