Irrelevant due process – The American Conservative
Judge Thomas Dobbs Concurrence argues that the Court should abandon its substantive jurisdiction.
The landmark decision released by the Supreme Court last week Dobbs v. Jackson Women’s Health corrects a moral and constitutional farce. The Court concluded in its Opinion: “Abortion raises a profound moral question. The Constitution does not prohibit state citizens from regulating or prohibiting abortion. roe and Casey acquired this authority. We are now overriding those decisions and returning that authority to the people and their elected officials.” For decades, even prominent legal scholars were on the left have admitted the roe is bad law. The untruth that abortion is a constitutional right is finally coming to an end Dobbs.
But that’s not the end of the talk on the legal justification in Dobbs. As Judge Thomas says in his consensus opinion, the Court correctly applied the rules of due process in its substantive case law to find that there is no substantive right to due process for an abortion. He explains that the Court has long analyzed whether a substantive right to due process exists under the Fourteenth Amendment by determining whether the right is “deeply rooted in the history and tradition of this nation [or] implicit in the concept of ordered freedom.” That Dobbs Court, he says, is correct that at the time America ratified the 14th Amendment, there was no history or tradition justifying abortion rights. But, continued Judge Thomas, the court should not use this substantive due process analysis at all.
For decades, the court has used the Due process clause of the Fourteenth Amendment declaring fundamental rights not expressly stated in the Constitution. The corresponding clause requires that no state may“Deprive any person of life, liberty, or property without due process of law.” Looking back at the history of due process rights, Justice Thomas points out that due process simply means that citizens are entitled to a particular due process before be deprived of their rights to life, liberty or property. For example, if the government intends to deprive a criminal of life or liberty, or intends to confiscate a person’s property under a particular law, the person has a constitutional right to due process. This usually means proper notification of the government’s intention and a fair hearing on the merits of the government’s request. The courts have made “due process” something far beyond what is due to a person.
Why is that important? First of all supporters of Original legal theory want to interpret the text correctly, period. The goal is not just to get “the right result,” but to ensure that judges are doing their job properly and interpreting the law before them according to its meaning. By adopting the substantive due process framework established by many decades of precedent, majority opinion is in Dobbs accepts a misreading of the Fourteenth Amendment. Judges shouldn’t do that. It can be argued that precedents have their place and that there is no point in overturning a long-established and well-used precedent. But if one is committed to the idea that judges must be prevented from interpreting the law as it is written without considering the possible practical implications of their judgments, then Judge Thomas is right and the concept of substantive due process should be left behind American law to be deleted.
Aside from the fact that it lacks a basis in the Constitution, Judge Thomas points to three reasons why due process is “particularly dangerous”. First, the doctrine elevates judges over the democratically elected branches of government by allowing judges to use the due process clause to forecast new rights, rather than for the limited task of ensuring that due process is afforded to the people (notice and faire Hearing). Abortion is just one of many “rights” the Supreme Court found hidden in the due process clause. Second, the creation of new fundamental rights complicates and distorts other areas of constitutional law. If, for example, a new fundamental right is established for a group of people, the court must determine whether other groups of people are entitled to the right in accordance with the equal protection clause. Third, creating rights that are not explicitly enshrined in the constitution is dangerous territory with traditionally terrible results. Judge Thomas explains this in the dred scott In that case, “the court invoked a sort of substantive due process to declare that Congress was powerless to emancipate slaves brought into the federal territories.”
This is not to say that there is no such thing as an unenumerated right. Certainly the people have rights that are not expressly stated in the constitution. That Ninth Amendment states explicitly: “The enumeration of certain rights in the Constitution shall not be construed as to deny or denigrate others due to the people.” The point is not that there are no unenumerated rights, but that those rights are unambiguous not originate from the due process clause. While we’re celebrating Dobbs rule, Conservatives should study and take seriously the consensus view of Justice Thomas.
Thomas’ lucid prose points to both the theoretical and practical problems of continuing to accept serious flaws in constitutional interpretation. Precedents and an unwillingness to disrupt the tangled web that the Court has weaved should not override the judges’ duty to interpret the law faithfully. As we look forward with hope to a court finally ready to make bold, honest decisions, regardless of the political consequences (cf Dobbs, Carson vs Makin, Brnoand Kennedy v. Bremerton School District), perhaps conservative originalists can even hope that the Court will be bold enough to overturn doctrines such as substantive legal correctness that have led to such abuses of judicial power.
Frank DeVito is an attorney and current associate of the Napa Legal Good Counselor Project. His work has previously been published in The American Conservative the Quinnipiac Law Review, the Penn State Online Law Review and the Federalist. He lives in eastern Pennsylvania with his wife and three young children.