Is there such a thing as substantive due process, or is due process purely procedural as Justice Thomas believes? If there is no substantive due process, then life, liberty, and property may be taken away as long as the procedure is correctly followed. There would be no need to determine how important the liberty is. There would no need to justify the deprivation.
Thomas' view makes a circus of liberty; it is a statist position, an autocratic view such as even Hamilton might have rejected. If it was the intent of the Framers, then they never would have supported the Founding Fathers in the bid for independence -- after all, King and Parliament followed all the forms of due process.
Substantive due process was recognized fairly soon after the Slaughterhouse Cases (1870). It was used to protect only economic freedom until the 1930s when incorporation of various provisions from the Bill of Rights into the concept of due process began. At that time, the incorporation of the entire Bill of Rights was expressly rejected, and even today there are a few provisions that have been held not to be included in the due process clause of the Fourteenth Amendment.
Rejecting incorporation of the entire BoR was moronic. Just because the set was listed as ten items does not mean it wasn't meant as a whole. Common sense says take the whole thing or leave the whole thing -- and the Fourteenth is essence says to take the whole thing.
Thus, Justice Thomas holds a very ideosyncratic view of the due process clauses, completely disregarding stare decisis. So, is his view a proper example of strict constructionism?
No, his view is an example of being unable to read.
I'd like to see something from the legislative history supporting your claim about the incorporation of the right to bear arms. Thus far, the Supreme Court has not held that the right to bear arms is incorporated to the states under the due process clause of the Fourteenth Amendment.
Just look at the debates. Stopping the southern states from disarming blacks was a big point advanced as a reason for passing the Fourteenth.
I'll let you come back to whether the due process clause of the Fifth Amendment contains an equal protection component such that Fourteenth Amendment equal protection jurisprudence may properly be applied to the federal government.
Of course it does. "Any person" means take a person at random, and this is how he has to be treated. Thus the concept of equal protection is inherent to the wording.
I've been very clear about my philosophy of language in other threads. Meaning shifts over time. Whole discursive fields break apart and regroup into new discursive fields. This observation is particularly important when sudying canonical texts such as the United States Constitution. Common law contains examples of such disjunctures. Although appeal to legislative history is often used to try to divine and apply the intent of the legislature to new situations, the new situations require what may properly be called judicial law-making, "legislating from the bench." This is a principle of common law which Article III requires the judiciary to utilize. (Thus I embrace neither Justice Scalia's intentionalism nor Justice Thomas's textualism.)
The text means what the Framers intended it to mean. If that isn't clear from what they themselves said, it has to be inferred from the debates surrounding the ratification. If the meanings of the words aren't clear, they have to be taken from the use common at the time.
A rejection of this is found in a lot of Second Amendment treatment. In terms of the language at the time, the Second was the strongest of all the Bill of Rights, for "infringe" meant to not even touch the non-essential parts pertaining to the matter, while "shall make no law" means don't touch the matter itself; further, "shall not be infringed" is universal language, not merely meaning by Congress, but by anyone at all -- state, county, municipality, church, corporation, association, etc. That's been horribly watered down.
That's not Scalia's "intentionalism", BTW -- his view is that he can (where it pleases him) read the personal morals of the Framers into the text. That's as bad as reading in today's meaning of words: what is of concern is the text and what they said it means, not any secret motives or opinions or anything else. Scalia is engaging in a sort of "constitutional gnosticism", where those "in the know" apply secret teaching to the text. That's a heresy in any realm where meaning is to be conveyed objectively.
This is why I hold that the Constitution absolutely has to be read in light of the Declaration: the great value of the Declaration is individual liberty, and that has to be the guiding principle for reading the Constitution -- whatever reading maximizes individual liberty is the correct one.
