Senate Judiciary confirmation hearings of Benjamin Suzuki: 4. Fourth of five sessions

My faith knows no Credo. It is not said in words.  Sometimes it appears in the pauses between words.


Benjamin Suzuki, Fifth Session



 I am a Judge. I believe in jurisprudence, although it can take monstrous steps into callous absurdity.  But I believe it can, will recover when it does. I believe the ideas of centuries are not yet done.  I believe in text.

            Benjamin Suzuki, Fifth Session



Fourth Session

Senator Jon Werren of Vermont, primary interrogator


(Gentle Genocide, Location of Jurisprudence, Oklahoma v Williamson, Lochner v New York, Lochner Identical in Method to Roe, Buck v Bell, Forced Sterilization as a Trespass Under 14th Amendment Due Process, Incremental Jury Common Law, Jury Verdicts do not Produce Rights, “We the People” Refers to Ways of Manifesting the People–not the People as a Single Mass, The Jury as Manifestation of the People, The People as a Set of Social Relations on Livelihood and Growth, Principle of Indeterminancy: Manifesting the People alters the People, Riots, Landed Juries Produce Stories Which Can Influence Future Norms, Landed Juries Make the Common Law a Process of the People, Baldwin v Missouri, Liberty Interests Can Retrograde, Enemies, Righteousness, Baltimore v Maryland, 5th Amendment Due Process Preserves Privilege of Writ, 14th Amendment Due Process Oversees State Application of Writ, Madison’s Failed Amendment, Slaughterhouse, Evisceration of Section 1 of the 14th Amendment, Judicial Retreat from Free Labor and Reconstruction, Loss of Privileges and Immunities Clause, Happenstance Origin of Due Process Clause Liberty Interests, Ideological Content of Equal Protection, Justice Field’s Slaughterhouse Dissent: Free Labor a Natural Right, Justices Bradley’s and Swayne’s Slaughterhouse Dissents: Equal Protection as Uniform Free Labor, Originalism Requires Slaughterhouse Be Overturned, Palko v Connecticut, Liberty is Not Ordered, Rights are Unordered; the Mechanism for Their Articulation Can Be Ordered)


Senator Jon Werren of Vermont (Democrat):Judge Suzuki.


Suzuki: Senator.


Werren: I’m in the minority, Judge. Seriously in the minority. In a hearing like this all I can do is hope to make a ripple; the big waves, if there are any, you’ll have to provide–you or your past. I figure my job is to show people what we’re going to get. Another bit of the Republican record we can run against. Another bit of prophecy to cash later. You come here offering massive judicial intervention in the education system…


Suzuki: No, Senator. I was picked–partly or mostly–for my appellate voucher opinion. But the case births jurisprudence. Without the appropriate case my views can be of no import. The world will tell me and–I emphasize–my colleagues what can be done.


Werren: There will be cases a plenty.


Suzuki: That is the fundamental reality, yes. No matter what is done, there will be cases a plenty.


Werren: I see you reversing achievements of half a century: dismantling public education; returning our country to the false compassion of banned abortion, with promise of young women spent in a moment’s desire–in the best of circumstances–with women chancing death out of fear of what they can not do; removing liberty interests which are the core of American individualism; pushing the homosexual community back into the shadows, where revealing what they are–what they are, sir–places them in jeopardy of law. You would strike all this down–level it; what would we do in the desolate, cleared space?




Suzuki: When we no longer see our enemy as struggling in livelihood; when we no longer see his belief, his social organization, as a means of daily survival, as a mechanism for getting out of bed, so to speak; then, Senator, we are on a path of gentle genocide.


Werren: Bombast, Suzuki, bombast. There are no death camps.


Suzuki: On abortion, Senator, both sides see death camps. But, generally, we are all more gentle. We isolate in social failure. Our camps are individuals uncounted, watching television alone, working, and nothing more. Our camps are groups in mutual disdain, where companionship needs mutual enemies.


Werren: You tie this to the right to choose, to intimate association, to–for God’s sake–public education?


Suzuki: I tie none of it. This gentle genocide has always been; I cannot envision it quenched. Division will always be with us; it is the engine of social evolution. I say jurisprudence should take no side in these divisions; it should rather find itself in each division, looking out. An impossible ideal, surely; but what is impossible for one feigns illusory possibility when distributed among many. No one owns jurisprudence. You ask for my opinion on what I think constitutionally insupportable as constructed. This I can give. So you see me as a swath of destruction. But I can give nothing else. Construction is not of one man alone. Jurisprudence cannot be owned.


Werren: Convenient as hell, Suzuki.


Suzuki: I will not give you what you want. I cannot and become a Justice. It would be a foundational disrespect to the other Justices. We are in a crisis, a crisis born of your opposition’s ascendancy. Many of that opposition see it differently; for them, the fruits of long battle become tangible. I am of no side. The crisis comes regardless of who ascends. Particular ascendence merely determines its form.




Suzuki: Yesterday I mentioned Justice Harlan’s dissent in Poe, a precursor to Griswold. He ends that dissent with a quote from a case some 20 years before, Oklahoma v Williamson. Oklahoma allowed the sterilization of criminals convicted of two felonies. The Court struck down the law. Justice Jackson there wrote a concurrence, the end of which Harlan later quotes. It reads:

There are limits to the extent to which a legislatively represented majority may conduct biological experiments at the expense of the dignity and personality and natural powers of a minority–even those who have been guilty of what the majority defines as crimes. [316 U.S. 533, 546]


Werren: Your due process would not seem to side with Justice Johnson. I know, I know: you are on no side. You can decide nothing on your own. It would “fundamentally disrespect” your future colleagues. I wish I could do this on campaigns. There’s my speech. Questions are superfluous. I’m off to dinner.




Suzuki: I stand defeated. Or sit defeated. But I still won’t talk.


Werren: <pause> Let’s have some more of your silence, then. Where are you headed?


Suzuki: To Lochner v New York.


Werren: Ah. As was I. Continue.


Suzuki: Around 1900 Lochner voided a State occupational health and safety law on 14th Amendment Due Process grounds. Due process, the majority held, included a discovered liberty of contract; the State was interfering with a prospective employee’s liberty to negotiate his own contract, said the Court. An individual’s ability to shape his life was curtailed. Most now see Lochner and like decisions as detrimental to workers. Workers generally have neither the time, knowledge, nor organization to negotiate such matters; and where a surfeit, even less so. Yet part of the majority opinion, written by Justice Peckham, would be hard to deny. I have it here.


Werren: You come prepared.


Suzuki: Being seen as a swath of destruction requires preparation.


Werren: Indeed. Go on, man of silence.


Suzuki: In denying a ten hour work day cap for bakers, Peckham writes

…there is a limit to the valid exercise of the police power by the State. There is no dispute concerning this general proposition. Otherwise the 14th Amendment would have no efficacy and the legislatures of the States would have unbounded power, and it would be enough to say that any piece of legislation was enacted to conserve the morals, the health or the safety of the people; such legislation would be valid, no matter how absolutely without foundation the claim might be. The claim of the police power would be a mere pretext, become another and delusive name for the supreme sovereignty of the State to be exercised free from constitutional restraint. [198 U.S. 45, 56]


The same sentiment, of course, lies behind Griswold, Roe, Lawrence v Texas, and Justice Jackson’s Williamson concurrence. Justice Scalia is fond of noting there is no appreciable difference between Lochner and such recent liberty interest outcomes, except that these more recent majorities think themselves right while the Lochner majority wrong. A not uncommon view–to think ourselves right and others wrong.


Werren: Perhaps that is all there is: we pick Justices with ideals we can bear.


Suzuki: Pick methods to bear, not ideals. The ideals will come of the methodology.


Werren: An uncertain outcome, Judge. I prefer to pick by ideals.


Suzuki: Also uncertain, Senator. Justices Stevens, O’Connor, and Souter demonstrate that. But the goal is not to secure an ideal; it is to enable the emergence of new ideals.


Werren: I’ll secure what I have first.


Suzuki: You cannot. Look at where you are, serious minority.


Werren: Ah. You played this on Senator Seger. I’m not interested.


Suzuki: Ideals become correlated when at war. We say middle ground is lost. Contention over one ideal becomes prominent, forcing others to hitch rides, to take sides. Mutually exclusive nexes of polarized ideals result. Some may be uncomfortable in their nexus. But any attempt to withdraw, to choose ideals across nexes, is punished–on all sides. Partial withdrawal is an attack against all. To pick a Justice for ideals is to exclude, to ostracize. The wars shall continue.


Werren: Do you really think the war of ideals can ever abate?


Suzuki: No. The disparate existence of humanity insures not. But we may be able to shift the venue of that war; to break the polarization of mutually exclusive nexes.


Werren: How? Shift to where?


Suzuki: If I had all the answers I would write a book.




As to what I have, I fear I must anger you once more; for it is not for me alone to make. But I can make one matter most clear: my goal, if confirmed, shall be to deepen this crisis.


Werren: The truth shall do us in, hey Suzuki?


Suzuki: Then we must live lies?


Werren: I live politics.


Suzuki: That profession has no monopoly on the lie.


Werren: Including jurisprudence?


Suzuki: Most certainly. I believe a lie has lead us to this state. We pay for what, over a century past, could not be done.


Werren: Are you going to tell this? Or is it more esotericism for the elect?


Suzuki: I may deconstruct, not construct.


Werren: Wield your scythe, Reaper.


Suzuki: I return to Lochner. Justice Holmes dissented. He said,

I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law….State constitutions and State laws may regulate life in many ways which we as legislators might think as injudicious, or if you like as tyrannical, as this [New York statute], and which, equally with this, interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same …is interfered with by law schools, by the Post Office, by every State or municipal institution which takes his money for purpose thought desirable, whether he likes it or not …. Some laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of citizen to the State or of laissez fare. It is made for people of fundamentally differing views, and the accident of finding certain opinions natural or familiar, or novel, even shocking, ought not to conclude our judgement upon the question whether statutes embodying them conflict with the Constitution. ….I think the word “liberty” in the 14th Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said a rational and fair man necessarily would admit that the statute would infringe fundamental principles as they have been understood by the traditions of our people and our law. [198 U.S. 45, 75-6]


“Fundamental principles” of “the traditions of our people”–I have already said why I think rights may not conform to this criterion, and why I think searching for an “ancient” source for a right deceptive and harmful. In Lochner we have Holmes on the side of the overworked baker–not out of principle, but impotence. He would be similarly impotent, he says, when confronted with seemingly “tyrannical” State acts. And so he later is–but not with regret, with gusto. Two decades after Lochner, in 1927, the Court sustains, 8-1, a Virginia law allowing the sterilization of the retarded to avoid “socially inadequate offspring.” The case is famous in American law, Buck v Bell. Holmes writes for the Court. He does not refer to his Lochner dissent, nor to the inability of the 14th Amendment to reach the case. No. He provides an extra-Constitutional rationale to affirm forced sterilization:

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. [274 U.S. 200, 207]


Senator, I find Buck v Bell repugnant. But, if asked to overrule it in toto, I do not think I could. I think Homes’ Lochner dissent forbearance largely right here. Juxtaposed, Holmes in these cases emblems the crisis of rights jurisprudence; my crisis as well.


Werren: Wonderful. We can all lament our helplessness at the destruction of others. But I’ve been exposed to you for awhile now. “Override in toto,” “largely right.” What could you do?


Suzuki: Anciently, offspring were a means of controlling and transmitting property. Sterilization is an irreversible destruction of those means. It is a violent trespass. Since the decision to sterilize is under legal compulsion, the intent to sterilize is sufficient for common law writ.


Werren: But the retarded may have no property and, if incarcerated permanently, have no prospect of property.


Suzuki: Then there would be no trespass. But a relative or another could attempt to transfer property to create standing. No current property, even if incarceration is temporary, might bar writ.


Werren: And the outcome of this ancient magic?


Suzuki: Trial by jury to defeat sterilization. In the instance.


Werren: In State court?


Suzuki: Preferably. It is a common law proceeding of the State. If these courts refuse, I believe they could be directed to honor the writ under 14th Amendment Due Process. At extreme, Federal court could employ State common law–but that would be a blow to the Amendment. Or a permanent stay could be issued for failure to hear writ.


Werren: Trial by jury to defeat sterilization. The jurors could go against the incarcerated, finding no real loss of future control.


Suzuki: Yes.


Werren: You do not see this as an incremental change in common law, as in the Griswold analog of marital privacy.


Suzuki: No. Common law trespass as extant handles the case. But there is a secondary sense in which the common law may evolve here. Jurors, over time, might tend to find against the State, preventing sterilizations. If, in that State, this likelihood became substantial, I can envision summary relief for the plaintiff absent an extraordinary showing by the State, the latter passing to a jury.


Werren: So Holmes’ forbearance to the States can be defeated in both Buck and Griswold? Why the dramatics, Judge? You are hardly trapped by Buck v Bell. I can see jurors going along with you.


Suzuki: Perhaps not in 1927 Virginia. Present juries might find the idea uncomfortable, but the rather overt Social Darwinism of Holmes’ opinion was thought rather sensible back then. There is no real right here, for it cannot withstand significant shift in public opinion.


Werren: I’m surprised at you. Summary judgement, once “evolved,” is insulated from public opinion.


Suzuki: Not absolutely. The State may urge trial by jury. Discretion lies with the judge. A break in summary judgement might begin a new round of common law formation. Jury derived common law does not ratchet rights determination in the same sense as constitutional amendment.


Werren: In most States constitutional amendment is a rather easy thing, a plebiscite, to affirm or repeal.


Suzuki: Yes, while the common law changes more slowly. State constitutions can more rapidly attach, and remove, rights of great power; State common law is more preservative of weaker, or more restrictive, rights. Recourse to the people en mass can be somewhat capricious in outcome.


Werren: As can juries? You say a common law protection might be whittled away by changing opinion.


Suzuki: The people writ small.


Werren: A play on words?


Suzuki: Maybe. I think we should understand that a plebiscite over ideas is foreign to the Federal Constitution. Even State constitutions of the Independence Era were confirmed by processes less than plebiscite. Plebiscite is a more recent technological possibility. Whatever “the people” meant in either Constitutional preamble or Amendments, I think it fair to say it did not mean a measure by plebiscite. The people perforce were writ small.


Werren: Then to what did the phrase “We the people” refer?


Suzuki: A collection of peoples–as far as I can tell. Not a collection of races or ethnicities. A collection of measures of the people; a collection of ways of manifesting the people. The election of Congress–originally just the House; State ratification of Federal Amendments, where the States are assumed to have their own means of manifesting their people; and, curiously but I think essentially, the jury.


Werren: Curiously but essentially?


Suzuki: A structure which is no structure–the jury, a sampling of the social bonds of life and livelihood, is embedded in a document creating a continental government. Juries are ephemeral, yet they check execution of law both civil and criminal. We do not think legislatures the people, although their creation measures the people. Longevity creates autonomy from the nexus of creation. I am a judge; I have thought overmuch of the jury. It’s ephemerality strikes me as the purest manifestation of the people.


Werren: A riot is pretty ephemeral.


Suzuki: And may well manifest the people. The people is a set of social relations for life, livelihood, control, growth. Manifesting the people emphasizes, perhaps activates is better, some of these relations–sometimes at the expense of other relations. A riot does this. Manifesting the people may alter the set of social relations, recreating the people. There is a kind of indeterminancy principle when measuring the people manifest.


Werren: So Congress, legislating, may recede from the people they help create anew.


Suzuki: Yes. The jury is different. It samples the social and work ethic of a locale but, generally, its effects are quite specific–insulated. Its sampling is less likely to alter the social relations sampled; but the consequence of sampling, the jury decision, is–again, usually–localized to an extreme. Change by jury is thus very incremental, often to the point of going unnoticed. But of more import in a landed, rather low density population–so most of the United States after the Founding–where trial and jury decision would disseminate, inviting reflection and redress of social norms.


Werren: Stories of past trials would influence future juries.


Suzuki: Yes. So, outside court and jury, common law formation can begin. This, I think, was why the jury was so important in the Independence Era. It was the engine of the people, locally defined. So Jefferson, building his case for Colonial autonomy, says immigrating colonists brought the common law with them–as part of their very body.


Werren: Let’s see. Judges altered common law partly on their experience with juries. A trial outcome, as story within the community, can have an effect on potential future jurors. The common law evolves not just through the judges’ perceptions, but through discussions of trial stories before future trials. The common law becomes not just a filtered sampling of the people, but a process of the people.


Suzuki: I think I was supposed to say that.




Werren: I’m an attorney too. Let me try some more. You say that the 9th Amendment puts rights formation in the people.


Suzuki: Yes.


Werren: The problem is that the people manifest arbitrarily.


Suzuki: Well, not arbitrarily, but due to predominate social relations of the moment. But these relations need not be conducive to rights formation; they may be opposed to it.


Werren: As in the repeal of a State constitutional right by plebiscite.


Suzuki: Yes.


Werren: You say that the common law tends to prevent such–erasure–but its effects are slow and isolated. You want the sweeping effect of rights formation possible in a State plebiscite combined with the retention of rights characteristic of the common law.


Suzuki: Exactly right, Senator.


Werren: It seems to me, Judge, substantive due process, liberty interests of the O’Connor Juncture, do this to some extent.


Suzuki: It is true that there is considerable inertia once a liberty interest is declared. And it is true they can exact a significant shift in law. But, methodologically, they can yield correlated loss. As my testimony has stressed, removing abortion as liberty interest will cascade, removing other due process interests.


Werren: But you’ll do it anyway.


Suzuki: Yes. Nine minds cannot sample the people; or, rather, be the people manifest. The 9th Amendment makes a lie of due process liberty interest; a methodology for manifesting the people is needed. Nothing in the 14th Amendment removes that requirement. The 5th Amendment includes due process as well; the 5th and 9th, ratified together, carve distinct spaces. Whatever the 14th Amendment does, it does not enable an unrestricted process of rights formation.


Werren: Justices declaring liberty interests speak of restriction–interests are discovered within the traditions of our people. Which thus employs the people based rights formation you say is required by the 9th Amendment.


Suzuki: I know; but it is a silly claim. Rights are created by new conditions, not traditions. The people, whatever they are, do not reveal themselves to nine minds in new circumstance. The rhetoric mimics poorly common law formation, where judges do declare alterations. But these alterations are embedded in multiple trials with indirect jury input–or were at the Founding, at any rate. This is why I stress the jury as manifestation of the people, of the background social relations which make their life, and the discussion of new possibility which can emerge from the case–both during and after trial.


Werren: Common law change relies on prior court opinions. There is no such thing as a prior jury opinion.


Suzuki: I have already said I believe otherwise. Jury propensity was noted by judge and attorneys. Attorneys crafted arguments to nudge jurors one direction or another. Judges noted the result. Post trial, jurors informed their locale of what they thought. This was true from Colonial times till at least the early 20th century. As the economy diversified, common law change become more overtly concerned with removing jury discretion through evolving rules of evidence and judicial review. Change in the first instance become more frequent in appellate courts, insulated from background jury input except as something to be avoided.


I find the “incremental” rhetoric of liberty interests mostly form, not substance. It is not the content I object to but the methodology. I have already testified as to why at some length.


Werren: Yet there is considerable similarity between your common law due process and liberty interests.


Suzuki: Because liberty interests are born of analogy with post-jury common law. “Due process” is a common law concept. The Court used it to craft a constitutional process independent of text save for “life, liberty and property” as door-opening qualifiers. Justice Black’s Griswold dissent makes the point by quoting from Holmes’ last dissent, also on the scope of 14th Amendment due process. I have it here.


Werren: Of course you do.


Suzuki: The case was Baldwin v Missouri of 1930. The subject was double taxation by two States of a single property of bonds and notes. Prior cases employing 14th Amendment due process were used to void the double taxation. In dissent, the last of his career, Holmes said:

I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the Constitutional rights of the States. As the decisions now stand I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. [281 U.S. 586,595]


Werren: So you want to be double taxed?




Suzuki: If I employ an obfuscation I should expect it to be employed against me on another occasion. Few weapons can be monopolized.


Werren: No. <pause> So we are left with Homes’ tribute to the reproductive sacrifice of the enfeebled in Buck v Bell..


Suzuki: Which is why I began with Justice Jackson’s concurrence in Oklahoma v Williamson: there are limits to the experiments a State may impose on the dignity and personality of an individual. A direct assault on Buck v Bell. But the assault, if successful, means Lochner might be valid as well.


Werren: Full circle. I think you’re wrong about a return to Lochner, Judge. I think liberty interests don’t retrograde within due process. But overturning due process–that’s quite different. Seismic.


Suzuki: Senator, Webster and Casey are retrograde from Roe. Mandatory parental notification before a minor can abort cannot but decrease the probability of having the abortion. And I see nothing in the admittedly vague concept of liberty interest which would preclude inclusion of a “paternal” interest in balance. An interest is not autonomy. Abortion is not immune to alteration within due process. This should be kept in mind, I think.


Werren: Yet you would overturn the world.


<Werren pauses, looks down at his desk briefly>


Werren: I’m voting against you. No surprise, I guess.


Suzuki: No.


Werren: You ask me to give up my battle.


Suzuki: Yes.


Werren: You ask me to give up my enemies.


Suzuki: Not having enemies–nigh impossible. But the present set of enemies–yes, I ask that.


Werren: Nigh? Almost?


Suzuki: There can be a way. Not always, but sometimes.


Werren: That’s not why we are here. We aren’t here to talk about that.


Suzuki: We are never anywhere to talk about that.


Werren: If I have heard you right these sessions, no one–or few, at any rate–should vote for you. Except those who hope you only partial success.


Suzuki: My goal is to alter how coalitions of ideas are formed.


Werren: But you are silent overmuch on implementation. Which makes me think you don’t want us to know the probable outcomes.




Werren: I thought you first a charlatan. An original intenter in new clothes. Both these sessions I have started irritated, hostile. But there is an intoxication of the mind in all of this. It’s easy to forget that after all the words a hurt may await.


Suzuki: To consider harm is to risk incapacitation. So we consider righteousness instead.


Werren: You should be rejected by your own side.




Werren: I have just a few questions left. Let’s pick up the beat once more.


Suzuki: Yes, Senator.


Werren: Your–constructive method–of the Constitution requires that each phrase have a distinct impact, an impact derived in part from contrast–forced contrast–with other phrases.


Suzuki: Yes, I think that a fair summary.


Werren: The Due Process Clause is identical in both the Firth and Fourteenth Amendments. How would you parse their content?


Suzuki: Without doubt due process applies to the common law in the Fifth Amendment. That’s all there was at the Founding. It forbade removal of common law redress; statute might prioritize a path of similar outcome, but absent adequate statute the common law path remains.


Werren: And the Courts would decide if a statute was adequate replacement of the common law path?


Suzuki: Yes. A significant expansion of Article III power, I think. Statute was often thought to replace common law. Fifth Amendment Due Process ratchets common law; the legislature cannot remove its protections–and these protections are a matter of process. Similarly, the Seventh fixes appellate review to the common law in civil suit. Certainly this means that lower courts failing the common law would be reversed upon appeal. None of this should surprise an originalist. The common law was all there was, and Congress, remade anew with the power to legislate, could only be seen as a threat to the tools at hand.


Werren: Did the Fifth apply to State courts?


Suzuki: No. There is some ambiguity as to whether State Bills of Rights applied to the Federal government; but none over the reverse Federal to State path. Madison proposed an amendment in the House to restrict State legislation by certain rights. It passed the House but was expunged in the Senate. Later, the Marshal Court rejected a claim that the Bill of Rights was free standing, so applicable to the States, based on the fate of Madison’s attempt–Baltimore v Maryland, I believe. State jurisprudence was seen as autonomous; objection to Madison’s proposal focused on “undue influence” on State constitutions. Not surprising, then, that the first Senate, as a council of the States, turned back Madison’s amendment.


Werren: So Madison’s failed amendment anticipated the Fourteenth?


Suzuki: Yes, but due process is not a right as such, and Madison did not include it in his failed amendment.


Werren: If 5th Amendment due process is incorporated into the 14th, then the 14th’s due process clause is redundant, violating your rule of forced exclusive content.


Suzuki: No, as I said, due process, as the common law, is not a right. Application of a writ is a privilege of the common law. Guaranteed by the 5th, this privilege of application is incorporated into the 14th against the States–its is one of the privileges and immunities of citizens of the United States which the States may not abridge. But a writ may be denied or improperly adjudicated. 14th Amendment due process permits the Federal courts to review the trajectory of a writ beyond mere application. The due process clauses are not redundant, even under 14th Amendment incorporation theory.


Werren: It’s not there, Judge. A right may be misapplied by a State and so come under Federal review. This, you say, is not due process but just preservation of a Federal right. Yet your Federal common law review is exactly the same–the States, in error, are redressed by Federal court. You have not identified unique content to due process in the 14th.


Suzuki: No, Senator. A Federal right is uniformly applied; common law writs evolve independently in each State, absent Federal guidance. For example, a State Supreme Court may deny an expansion of trespass, turning back lower State courts which had acted novelly. Appeal might be made to the US Supreme Court, arguing that the lower courts had adequately made the case for accepting the novelty. If the Supreme Court agrees, its decision affects only that State. The Court might hold that common law process was infringed by the State high court. Due process is not linear, always yielding the same result per circumstance. Due process guarantees a hearing, not the outcome. But at some point a failed outcome is identical to no hearing. That evokes 14th Amendment due process. 5th Amendment due process at the Federal level is unpoliced, except for the Court itself. If the Court there denies a common law innovation, there is no redress; not so for State courts. State jurisprudence was suspect during Reconstruction. 14th Amendment due process is yet another subjugation of State autonomy after Civil War.


Werren: Judge, no one thinks this.


Suzuki: This is because the 14th Amendment Privilege and Immunities Clause was quickly eviscerated.


Werren: But you say application of writ is a common law privilege under 5th Amendment Due Process, absorbed into the States by the Privileges and Immunities Clause of the 14th.


Suzuki: Yes.


Werren: Rights are immunities.


Suzuki: Yes. Rights are preemptive privileges–privileges which preempt State action without application of writ, creating an immunity against the State.


Werren: Then rights–free speech, free exercise, double jeopardy–are absorbed into the States by the same Clause.


Suzuki: You would think so.




Werren: But….?


Suzuki: But not. Instead, the Bill of Rights was piecemeal incorporated, over several decades, into the 14th Amendment by the Due Process Clause. A great mistake.


Werren: Why through due process? Apart from being against your common law theory of due process.


Suzuki: Isn’t that enough?




Werren: Judge, I’m not even on your side and I’m prompting you…


Suzuki: Yes. You are a worthy opponent.


Werren: Judge?


Suzuki: Oh. Yes. Convenience. Incorporating rights through due process lets anything associated with “liberty”–that magic word preceding due process–beg for rights incorporation. The word “rights” only appears in the 9th Amendment, which inconveniently seems to place their articulation somewhere outside the Court. So the Court begins by piecemeal shoving bits of the Bill of Rights through 14th Amendment due process incorporation. But just bits. At first a jury trail was not seen as shovable. Later, Justices managed to shove it through too. The Court had complete discretion and could curtail controversy through piecemeal success. It could also add liberties, such as those associated with autonomous education in the 1920’s in Meyer v Nebraska.


Werren: A politic course.


Suzuki: Which does violence to the Amendment’s text. The Privilege and Immunities Clause is just before the Due Process Clause. As you noted, rights are immunities. Clearly Federal rights should be incorporated through that clause, leaving due process free. But the Privilege and Immunities Clause gives no hint as to how to identify a right. Luckily, the Due Process Clause has the world “liberty.” Big help.


Werren: That is why the straightforward route was ignored?


Suzuki: No. First adjudication of the 14th Amendment, Slaughterhouse, decided in 1872, essentially eviscerated it. After Slaughterhouse much of the Amendment was comatose; the Privileges and Immunities Clause has never revived.


Werren: My goal, Judge, was to show that your constructive principle of forced exclusive content fails when comparing the 5th and 14th Amendment Due Process Clauses. I am not terrified of redundancy as are you. Now you invite another historical excursion…


Suzuki: I am an originalist.




Werren: And now you see why I am not.




Werren: The Emperor has not clothes, but is dressed so well. Proceed, Judge.


Suzuki: My thought too. Now. A 5-4 Slaughterhouse majority eviscerated Section 1 of the 14th Amendment, holding that the Section generally functioned only to insure complete emancipation of slaves. The case was brought by white butchers of New Orleans against a State imposed monopoly on cattle slaughter–a focal Free Labor case. The majority held against the butchers, trimming Section 1 to near impotence. The true ideology behind the Amendment rings clearly in the dissents of Justices Bradley and Fields.


The majority held that the Privileges and Immunities Clause of Section 1 covered only innocuous things such as the right to travel amongst the States, protection by the navy while on the high sees, and any privileges the U.S. might negotiate for citizens in foreign lands. I can see the majority nodding solemnly when reciting this list. They avoided any other hint of protection of U.S. citizens against one of the States, a remarkable self-deceit considering Section 1 beings with the phrase “No State shall abridge.” Slaughterhouse was an almost complete judicial retreat from Reconstruction in the South and, equally significant, the Free Labor ideology which helped motivate Northern recruitment during the Civil War. In 1872 the South was still in political rebellion. Federal troops occupied parts of the South, protecting reconstruction State governments. Many in Congress wanted the troops withdrawn; there was little Northern fortitude for post-slave participation in government. Labor unrest, especially among rail workers, was growing, cumulated five years later in the great strikes of 1877. Federal troops were, and would be, needed elsewhere. The Court responded to the times by annulling most of the 14th Amendment and, I would also assert, part of the 13th Amendment. There was loud protest, and the Court did, piecemeal over the next decades, reverse itself in part. But the Privileges and Immunities Clause has remained empty. 20th century Courts, unwilling to reverse Slaughterhouse, looked to the ambiguity of due process to incorporate the Bill of Rights into the States.


Werren: Are you saying that liberty interests are a side consequence of the North’s failure to reconstruct the South?


Suzuki: Well, yes, in part. But slavery played an even deeper role in the interpretation of the parent of the 14th Amendment Clause, Article IV Section 2 of the Constitution proper.


Werren: Stop. Stop. I don’t want to know about Article IV Section 2. Slaughterhouse is deep enough. The case has never been overruled?


Suzuki: Not in the sense of embracing the Slaughterhouse dissents. And certainly not the Privileges and Immunities Clause. The late Chief Justice Rehnquist termed the case “well settled.”


Werren: You would overturn Slaughterhouse?


Suzuki: Forcefully. Free labor was a pulse of the Civil War and consequent Reconstruction Amendments. It was at the birthing of the Republican Party. Originalism demands that the case be overturned. The text is clear. Rights are either privileges or immunities, so applied to the States by the Clause, leaving due process free. Due Process then derives its common law content from its parental clause in the 5th Amendment.


Werren: Where is the Free Labor content?


Suzuki: The Equal Protection Clause. The first version of what became Section 1 did not mention due process at all. There was something akin to the Privileges and Immunities Clause, then this:


<Suzuki reads from his pocket notebook>

The Congress shall have power to make all laws which shall be necessary and proper to secure …. to all persons in the several States equal protection in the rights of life, liberty, and property.


Note use of “rights,” deleted from the final Amendment. “Rights” could not even break through by Civil War!


Werren: “All persons,” not “all citizens”?


Suzuki: The 14th Amendment birth definition of citizen had not yet been proposed. “Person” is used to cover ex-slaves. Actually, this early version secures Article IV Section 2 rather than the 14th Amendment privileges and immunities of U.S. citizens….


Werren: I am in the Twilight Zone. This hearing will never end.


Suzuki: Ah. The Twilight Zone may be a good place for jurisprudence.




Suzuki: Oh. Yes. Finish talk. Equal protection in Free Labor ideology refers to a prohibition on exclusive legal privileges–like the butcher monopoly in Slaughterhouse. Such prohibition appears in some Independence Era State constitutions; Vermont has a good one–something about all laws providing “common benefits” to all citizens on equal terms. A Reconstruction Free Labor ideologue thought the concept worthy of Constitutional amendment, retaining equal protection in the final version.


Werren: But telegraphically, while “life, liberty, and property” were attached to “due process,” as in the 5th Amendment.


Suzuki: Yes. Section 1 of the 14th was introduced by the same man who introduced the first version.


Werren: But equal protection is more cryptic in the second version.


Suzuki: Yes. I believe Free Labor ideology was beginning to fail as a unifying force among Northern Republicans. Actually, even during the War many Republicans didn’t care for it. They cared more for financial opportunity in an expanding war economy, including western expansion of railroads and collateral ownership of adjacent land. The party of Lincoln became something else through war. Equal protection is more cryptic to avoid dissension.


Werren: And the due process inclusion?


Suzuki: Back door recovery of “life, liberty, and property” through use of the patriotic 5th Amendment.


Werren: Sounds like the author might not have known what he was giving you.


Suzuki: <bark laughs> This is always so. No one owns text in law. But you are right that review of State common law would not have been possible under the first version. I would suggest, however, that inclusion of “due process” is not complete happenstance. The Northern war State legislatures profited from the war economy; again, especially those westward States experiencing new rail. Legislation for corporations boomed. So did special privileges–made by Republican legislators. Statute was becoming a tool of exclusive privilege. So equal protection as a remedy and, perhaps, a return to the protections of common law due process, such as trespass. I think so-called Radical Republicans, committed to Free Labor, would see the common law as a defense against a plethora of statute.


I cannot claim my parsing of the Amendment is exactly what was intended–especially as I do not think intent was supposed to be well articulated. But I can claim my parsing is exhaustive, faithful to the prior 5th Amendment use of due process where the common law would have been routinely used, and faithful both to the use of Free Labor ideology and war time opposition to it among flourishing corporations. In any case, the surest supportive evidence lies in the Slaughterhouse dissents themselves.


Werren: Of which, assuredly, you have abstracts in your pocket notebook.


Suzuki: Well, yes. I do.




Werren: Which you would like to read into your testimony, now.


Suzuki: Yes. That would work.


Oh. Yes. Four Justices dissented in Slaughterhouse, producing three dissents. Justice Field argued at length that monopolies were generally forbidden by the common law of England before the Independence War, so freedom from monopolistic suppression is an immunity of U. S. citizens. I think it important that he begins with the common law, showing its pivotal use in the day. He concludes with what I see as the most forceful passage within the three dissents. Summarizing some prior cases in State Supreme Courts, he says:

In all these cases there is a recognition of the equality of right among citizens in the pursuit of the ordinary avocations of life, and a declaration that all grants of exclusive privileges, in contravention of this equality, are against common right, and void.

This equality of right, with exemption from all disparaging and partial enactments in the lawful pursuits of life, throughout the whole country, is the distinguishing privilege of citizens of the United States. To them, everywhere, all pursuits, all professions, all avocations are open without other restrictions than such as are imposed equally upon all others of the same age, sex, and condition. The State may prescribe such regulations for every pursuit and calling of life as will promote the public health, secure the good order, and advance the general prosperity of society, but when once prescribed, the pursuit or calling must be free to be followed by every citizen who is within the conditions designated, and will conform to the regulations. This is the fundamental idea upon which our institutions rest, and unless adhered to in the legislation of the country our government will be a republic only in name. The Fourteenth Amendment, in my judgement, makes it essential to the validity of the legislation of every State that this equality of right should be respected. How widely this equality has been departed from, how entirely rejected and trampled upon by …Louisiana, I have already shown. …[I]t is to me a matter of profound regret that [the Louisiana statute’s] validity is recognized of this Court, for by it the right of free labor, one of the most sacred and imprescriptible rights of man, is violated… [G]rants of exclusive privileges such as is made by the Act in question, are opposed to the whole theory of free government, and it requires no aid from any Bill of Rights to render them void. That only is a free government in the American sense of the term, under which the inalienable right of every citizen to pursue his happiness is unrestrained, except by just, equal, and impartial laws. [83 U.S. 36, 109-11, emphasis supplied]


Werren: “just, equal, and impartial laws”: equal protection.


Suzuki: Yes. For Field, equal protection is free labor. Free Labor in an inalienable, natural right. Earlier in his dissent he says

the [14th] Amendment refers to the natural and inalienable rights which belong to all citizens …the inhibition [against the States] has a profound significance and consequence. [83 U.S. 36, 96]


Werren: Sounds like substantive due process to me–liberty interests.


Suzuki: Yes. But he soon thereafter enters a common law discussion of immunity from monopoly consistent with the common law due process I outlined. After reviewing prior State anti-monopoly cases he concludes with the equality passage I read. He never actually mentions equal protection.


Werren: Does he invoke–maybe suggest is better–both substantive due process and your common law due process?


Suzuki: I think “invoke” is right. Yes, both. He seems to use the common law to delineate the natural right of free labor. So he says “no Bill of Rights is required.” But there is nothing in his rhetoric which would limit adjudication to rights under the common law, as would be the case under common law due process. He seems to assert that the 14th Amendment has enabled an essentially unbounded machinery for the articulation of rights, bound, that is, only by being “natural” and “inalienable.”


Werren: Not a man for your cause, Judge.


Suzuki: <laughs> Not at first blush, no. But he was more concerned with producing “liberty” outcomes than holding on to this view. Over the next decades he moves to a Bill of Rights incorporation view of the Fourteenth Amendment, while here, in 1872, he seems to suggest the Bill of Rights had already been incorporated into the States before the 14th Amendment. Which is actually quite interesting….


Werren: Stop. However he changed his view, his Slaughterhouse dissent, being his first view of the Amendment, likely carries the most historical content.


Suzuki: Yes. Which makes the other two dissents interesting. All four dissenting Justices sign Field’s dissent. But Justices Bradley and Swayne add their own dissents. The three dissents all react to the majority opinion of Justice Miller which says, at bottom, that the Amendment is designed to remove the antecedents of institutional slavery. So Miller says of equal protection:

In the light of the history of these Amendments [the 13th – 15th], and the pervading purpose of them …it is not difficult to give a meaning to this Clause. The existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this Clause, and by it such laws are forbidden. [83 U.S. 36, 81]


So Equal Protection provides no benefit to those in the North, or Southern whites such as the New Orleans butchers. We retain this distinction today by calling race a “protected class” invoking “strict scrutiny” under Equal Protection. Justice Bradley’s dissent replied to Miller:

[a] law which prohibits a large class of citizens from adopting a lawful employment, or from following a lawful employment previously adopted, does deprive them of liberty as well as property, without due process of law. Their right of choice is a portion of their liberty; their occupation is their property. Such a law also deprives those citizens of the equal protection of the laws…

It is futile to argue that none but persons of African race are intended to be benefitted by this Amendment. They may have been the primary cause of the Amendment, but its language is general, embracing all citizens, and I think it was purposely so expressed. [83 U.S. 36, 122-23]


Justice Bradley’s view is also the late Justice Stevens’ view. But the latter could never convince the Court to adopt this individual centered equal protection. Justice Miller’s opinion of the Court essentially restricts the Civil War to the question of secession. Yet Free Labor motivated the election of Lincoln and subsequent war volunteerism. Slavery was hated as an stain on free labor, as I said earlier.


Werren: Bradley seems to be in the substantive due process camp.


Suzuki: Yes. He joined Field’s dissent which, I say again, articulates free labor as a common law right; and common law right is the ancestor of liberty interest. But Bradley places free labor in equal protection as well. So does Field; he just fails to leave the realm of polemics to say the words. Neither Justice actually needs substantive due process. Slaughterhouse is an ideological battle over the consequences of Civil War. The Court majority localizes consequence to the South–ultimately a rather weak consequence at that. The minority would place free labor as a cause of action throughout the Union; it would portend, overnight, the modern power of the Court. With Slaughterhouse the Republican ideology which helped elect Lincoln as minority President is defeated.


The final Slaughterhouse dissent, by Justice Swayne, underscores this. He approves the other dissents and adds

“The equal protection of the laws” places all upon a footing of legal equality and gives the same protection to all for the preservation of life, liberty and property, and the pursuit of happiness. [83 U.S. 36, 127]


This is Free Labor. Due process for Swayne is procedural due process. He says:

“Due process of law” is the application of the law as it exists in the fair and regular course of administrative procedure. [83 U.S. 36, 127]


He would parse the two clauses into mutually exclusive content–well, mostly. But none of this is essential to the Slaughterhouse minority. They are concerned with articulating the ideology which they believe legitimately motivated the War. Swayne concludes:

The language employed [in the Amendment] is unqualified in scope. There is no exception in its terms, and there can be properly none in their application. By …”citizens of the United States” was meant all such citizens; and by “any person” was meant all persons within the jurisdiction of the State. No distinction is intimated on account of race or color. This court has no authority to interpolate a limitation that is neither expressed nor implied. Our duty is to execute the law, not make it. The protection provided was not intended to be confined to those of any particular race or class, but to embrace equally all races, classes, and conditions of men. It is objected that the power conferred is novel and large. The answer is that the novelty was known and the measure deliberately adopted. … The construction adopted by the majority of my brethren is, in my judgement, much too narrow. It defeats, by a limitation not anticipated, the intent of those by whom the instrument was framed and of those by whom it was adopted. To the extent of that limitation it turns, as it were, what was meant for bread into a stone… [O]ur jurisdiction is in these cases stricken down by the judgement just given. [83 U.S. 36, 128-9]


“What was meant for bread” turned “into stone”: an appropriate metaphor for the denial of free labor. Originalism demands that Slaughterhouse be overturned.




Suzuki: Is anybody still awake?


<weak laughter>


Werren: I no longer know why I began this line of questioning.


Suzuki: Ah. One value of words is you don’t have to remember much of what came before. They just flow. <pause> Most likely you were trying to reveal me as dangerous.


<burst of laughter>


Werren: Maybe dangerous to the other aisle. Return them to their roots.


<laughter; Suzuki is silent>


Werren: One point. On your methodology. The dissents you quote say both the common law and equal protection strike down monopoly.


Suzuki: Yes.


Werren: Doesn’t this violate your constructive method of avoiding redundancy among clauses?


Suzuki: I believe the Radical Republicans were quite leery of the proliferation of State statute by Civil War’s end. Common law writ would be a general buttress against State statute, limited to neither monopoly nor free labor. The Amendment had to do much in few words–a sneak attack on moderate, corporation Republicans and the like. Massive judicial intervention must have been anticipated–as Justice Swayne says should be the case.


Werren: So why did this “sneak attack” succeed if the Radicals were on the decline?


Suzuki: Most of the Fourteenth Amendment is devoted to excluding former rebels from positions of power, nullifying Confederate debt, and removing the 3/5 slave count in Federal representation. Relatively little Congressional debate went to Section 1. Reparation and control were the foci.


Werren: The Radicals were granted their telegraphic ideology, of no practical impact of the moment, in expectation that political necessity would nullify it later.


Suzuki: Yes, Senator. Which is exactly what happened.


Werren: Now I recall motive for this digression. You think this original abandonment of the Amendment’s content has lead to what you call the present crisis in rights formation.


Suzuki: Yes! I remember too now.




Werren: Suzuki, do you really think returning to Slaughterhouse will break our impasse?


Suzuki: The Court cannot return to Slaughterhouse unless an appropriate case appears. Even if one does, it would only be a first step.


Werren: Good Lord.


Suzuki: Senator, I have already said my goal is to deepen the present crisis. I believe this the only way out–if there is a way out.


Werren: No, Suzuki, not “if.” You think there’s a way out, right or wrong though you may be. Your problem is how to convince your colleagues. Which is why you remain silent so much. Well, maybe not so much.






Werren: As I see it, you think a contentious Court has created an incoherence in rights formation….


Suzuki: Yes, but an incoherence driven by the necessities of life–the case.


Werren: I am not so certain the case drives all jurisprudence.


Suzuki: No, it can not. The bonds made among nine minds raise the case to the point of decision, coloring what is through the application of words. No case is solely of the people before the bench. Trite, but I have to remind myself often; as a warning to remember the litigants, as a warning to remember the worlds beyond the litigants.


Werren: Your method of parsing clauses into partially mutually exclusive content seems inconsonant with adjudication by consensus. Each case invites a new consensus, opportunism challenging any such staid parsing. You ask too much of minds and the world, which must provide the right cases, perhaps in the right order.


Suzuki: If the world is not parsed roughly as the constitution adjudicated, you are correct. But constitutions shape the social structure they must endure. A stable constitution shapes a world it can process in litigation. The question is whether an initial parsing can create its own stability. It is an experiment, of unknown outcome. In my view, anyone who claims jurisprudence is not experimental is not of justice. But experiment is not fiat.


Senator, there is an oft quoted phrase of Justice Cardozo’s in Palko v Connecticut, that the Fourteenth Amendment introduces a “scheme of ordered liberty” into the States. I like neither the phrase nor the opinion. Liberty is not ordered. Rights are recognized; they may clash. When so, a resolution must be reached. To say liberty is ordered is to potentially deny rights before they appear. So Cardozo says

The right to trial by jury and the immunity from prosecution except as the result of an indictment may have value and importance. Even so, they are not of the very essence of a scheme of ordered liberty. [302 U.S. 319, 325]


We cannot presume liberty ordered. Each declared right is an experiment, in itself and in relation to other rights. I cannot but agree with Holmes in his Abrams dissent:

[O]ur Constitution …is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. [250 U.S. 616, 630]


But an experiment is ordered. The formation of rights can be ordered although the mixture of rights is not. To escape the chasm which separates us en mass we must escape the contents of rights; we must focus on the mechanism of their formation.


Werren: On which you remain silent.


Suzuki: Yes. Not for me alone. Not for nine minds alone. For nine minds and a case. Many cases.


Werren: If words were lullaby you would have my vote in dream. But there are others on this Court. One has no judicial training at all.


Suzuki: Rachel Colleen Whitehead. Would you divide the Court before I am confirmed?


Werren: She was confirmed 49-48, under performing even Justice Thomas. Never before has a Justice been seated with less than a majority. Three Republican abstentions placed her on the Court!


Suzuki: Why you speak of this here? I will not condemn from origins. My hopes will not let me.


Werren: I want you to address the value of training in crafting jurisprudence.




Suzuki: I have been a judge some ten years. Some remembered Justices had never been judges, such as Bradley. I do not think jurisprudence so difficult as to merit prior training on the bench. The bench weights with instantaneous truth. We judges emerge proficient yet paralyzed. Rights approach naked, alone; we receive them with all our past decisions, all of those faces, looking over our shoulders, urging different replies to the plight of the unclothed.


Werren: But the Bench, that forge of decision, does it not prepare you to make the hard choices?


Suzuki: I wish I could say it did. The Bench is as likely to blind as reveal. Senator, we have to live with ourselves. Doubt, uneasiness find relief in legal necessity. You see, Senator, sometimes we’re relieved when an appellate court says we are wrong. That means we don’t have to be right anymore.


<Silence; Werren rubs his eyes>


Werren: You’ve been seen, Benjamin Suzuki. I’m done with you. Mr. Chairman.


Chairman Roy Allred of Montana (Republican): Unfathomably, two more members of the Committee demand an opportunity to question you, Judge. I have a pile of notes here to prove it. And I don’t mean bank notes. There’s never been a confirmation hearing like this. You won’t let it be. If we could pin you on a paper like an insect on display, it’d by done by now. Tomorrow we’ll begin with Senator Talbot of Nebraska. Without objection? Adjourned.

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