[UncleMeat]

It is important to understand that the "penumbra" used as part of the justification of Roe expands the liberty of individuals and limits the power of the state. There is further an entire amendment (the 9th) that expressly says that such penumbras exist and that the constitution does not contain an exhaustive list of liberties.

This is wildly different than saying "well, invasion can mean anything so its fascism time."

[rayiner]

> It is important to understand that the "penumbra" used as part of the justification of Roe expands the liberty of individuals and limits the power of the state.

So does Lochner. There’s a libertarian reading of the constitution where you can justify interpreting the text so as to maximize individual liberty. But almost nobody subscribes to that. They just like reading the text expansively when it comes to sexual liberties and narrowly when it comes to economic ones. Which is certainly the exact opposite of what the founders were concerned about.

[UncleMeat]

Even if this was true, this is totally unrelated to the question of habeas corpus. "I don't like the ways in which the 9th amendment and the substantive due process clause have been applied" is a fine thing to believe, I guess. But there zero connection to any path to Trump establishing full blown fascism by saying we are under invasion and locking up his political enemies.

[rayiner]

Of course it’s related. If “emanations from penumbras” is valid constitutional reasoning, it’s valid for everybody. It’s valid for the people who want to strike down state laws regulating morality, and it’s valid for the people who want to expedite deportation of illegal immigrants.

The Constitution says habeas may be suspended “when in Cases of Rebellion or Invasion the public Safety may require it.” “Rebellion” and “Invasion” are not textual prerequisites for suspending habeas corpus, but rather specific emanations from a broader penumbra encompassing threats to “public Safety.” Incursions into U.S. territory by illegal aliens and foreign gangs easily falls within that penumbra. Moreover, the word “invasion” isn’t necessarily limited to military invasions. It can refer to incursions by foreign elements, as in the phrase “invasive species.” That confirms that habeas corpus can be suspended in response to incursions onto U.S. soil by illegal aliens and gangs. And after all, the founders couldn’t have anticipated the rise of sophisticated international criminal organizations like MS13, which rise to the level of quasi-state actors. A small band of MS13 armed with modern weapons of war would be comparable to a military detachment armed with muskets in 1789.

And yes, while suspension of habeas is mentioned in Article I, it’s only listed as a negative limitation. It doesn’t say only Congress can suspend habeas. Just like how when Article II says “the executive Power shall be vested in a President of the United States of America,” that doesn’t mean that Congress can’t also create independent agencies that exercise that power.

[UncleMeat]

Is your claim seriously that all expansive readings of any part of the constitution, even those that expand the power of the state rather than limiting the power of the state, are somehow the fault of substantive due process?

[rayiner]

The constitution considers various tradeoffs and draws the lines where it draws them. The constitution creates quite a powerful government in some respects, and limits government power in other respects. And while the federal government is one of enumerated powers, the state governments were always understood to have the general police power, limited only as set forth in their respective constitutions or federal constitutional provisions.

There is no meta-principle by which you can say expansive, results-oriented interpretations are acceptable to move the lines in one direction but not the other. If emanations from penumbras is a valid interpretive methodology it’s valid for everything.

[mindslight]

"require" implies that law enforcement and/or the courts are overwhelmed, as in the case of sustained open conflict that needs to be first put down and then sorted out later. A demented wanna-be dictator's frustration that it is too hard to disappear people out of civil society does not qualify.

Or are you saying that Trump's policies on this issue are also so incompetent that law enforcement has now become overwhelmed?

[mdhb]

Self identified libertarians have for at least 20 years now seemed to have had an almost singular focus on age of consent laws and tax avoidance. It’s a magnet for the dregs of society.