I was just reading an interesting article online now. A couple of interesting articles, actually. The legal precedents involving using substantive due process to extend most of the Bill of Rights to the states (along with many rights not listed specifically in the Bill, but found in other cases) started in the late 1890's. (But some people think the first actual case like that was Dred Scott in 1857.) Before then, the Supreme Court used the privileges and immunities clause of the 14th amendment to give Americans the rights in the Bill of Rights. (Some people even today think the due process clause of the 14th amendment only protects procedural due process. The right to trial by jury, and a lawyer.) In fact many original intent judges claim that substantive due process was an act of judicial activism right from the start, going back to the Dred Scott case and the late 1890's. (And by that thinking BTW, so was Marbury v. Madison in 1803, which established the idea of judicial review, or the power of the SCOTUS to declare law unconstitutional. The Constitution doesn't explicitly give the Supreme Court that power anywhere.) But, I have read in my law dictionary, and many other places, the opposite of judicial activism isn't original intent. It's judicial restraint. Or, upholding precedent unless there is a very good reason to overturn it. It doesn't matter, this philosophy says, if you would have decided differently. Some original intent justices are beginning to moderate their view against things like substantive due process. Some do that using the doctrine of super precedents. But justice Clarence Thomas is one of the last hold outs on things like substantive due process, and super precedents even. In one case, I was reading, his views were even more radical on this than Samuel Alito. And he refuses to change any of his views since he was appointed to the court. He said in Lawrence v. Texas in 2003 that he had nothing personally against gay people. And I guess that's true. But his view that we should do away with past rulings, some of them going to back to the 1890's and early 20th century, would take away rights from gays and women. Even African Americans would lose many of their civil rights and equality rights, with his radical views.
I was a little surprised by what I recently read online. I'll have to do some more research. Up till late 1890's/early 1900's, the Supreme court ruled that the due process clause of the 14 amendment made much of the Bill of Rights apply to the states. Before the then privileges and immunities clause of the 14th amendment did that. Also, the original aim of who was guaranteed equal protection under the 14th amendment has changed over the years. Brian T. Fitzpatrick and Theodore M. Shaw write on the National Constitution Center website "there is little doubt what the Equal Protection Clause was intended to do: stop states from discriminating against blacks. But the text of the Clause is worded very broadly and it has come a long way from its original purpose. For example, despite its reference to 'state,' the Clause has been read into the Fifth Amendment to prevent the federal government from discriminating as well.". And the privileges and immunities clause is what made the Bill of Rights apply to the states for the first time in history. But the amendment says "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States" which meant only citizens of the US were entitled to the right in the Constitution. The right to free speech is listed in the Constitution. And so is the right against unreasonable search and seizure. Each state of course had its own constitution too. And statutes gave people many procedural rights then, as they do now. But as I said, original intent judges on the Supreme Court reject rights like privacy. They also reject things like marriage equality, for any group. Because that is under the more broad idea of substantive due process too. And you know, in 1923 the Supreme Court said the right to privacy also protects things like what type of education your children receive in public school. Some of the members of the Supreme Court have moderated their views thru the years. They say the turning point for Antonin Scalia was the flag burning case in 1989. But they say Clarence Thomas is the one originalist justice still on the Supreme Court who really hasn't changed his views or positions at all since he was appointed in 1991. EDIT: Why are there lines thru my text?
Some conservatives claim the right to privacy was invented by liberals in the 1960's. Well, the term "right to privacy" goes back to, and is the name, of a law review article by Samuel D. Warren II and Louis Brandeis, and it was published in the 1890 Harvard Law Review. But it is a much older idea. Found in things like a man's home is his castle in 1604. And even much further than that the Supreme Court pointed out in 1965 when they said "We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system." 1965? 1890? 1604? How much further back do you want to go?
