Insubstantial Due Procedure

Justice Thomas’s Dobbs dissent argues that the Court should abandon its substantive-due-process jurisprudence.

The landmark decision released by the Supreme Court last week in Dobbs v. Jackson Women’s Health corrects a moral and constitutional travesty. In its opinion, the Court stated that abortion raises a fundamental moral issue. It does not prevent citizens from prohibiting or regulating abortion in their respective states. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.” For decades, even prominent legal scholars on the left have admitted that Roe is bad law. The falsehood that abortion is a right enshrined in the Constitution has finally come to an end with Dobbs.

But this is not the end of the conversation about the legal reasoning in Dobbs. Justice Thomas states in his concurring opinion that the Court correctly applied its substantive due-process jurisprudence and found no substantive right to abort. He explains that the Court has long analyzed whether a substantive-due-process right exists under the Fourteenth Amendment by determining whether the right is “deeply rooted in this Nation’s history and tradition [or] implicit in the concept of ordered liberty.” The Dobbs Court, he says, is correct that there was no history or tradition in America at the time the Fourteenth Amendment was ratified that justifies a right to abortion. But, Justice Thomas goes on, the Court should not be using that substantive-due-process analysis at all.

For decades, the Court has been using the Due Process Clause of the Fourteenth Amendment to declare fundamental rights that are not explicitly written in the Constitution. The relevant clause requires that no state shall“deprive any person of life, liberty, or property, without due process of law.” Looking at the history of due-process rights, Justice Thomas points out that due process means simply that a certain process is due to citizens before their rights to life, liberty, or property can be taken away. If the government plans to take away a criminal’s life or liberty or to seize a property of a particular law-affected person, they are constitutionally entitled the due process. This means that the government must give reasonable notice about its intentions and allow the person to be heard on the merits. In the Court’s view, “due process” has become something that goes beyond what a person should be entitled to.

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Why does this matter? First of all, proponents of originalist legal theory want to interpret the text correctly, period. It is important to ensure that judges do their jobs correctly and interpret the law according to its meaning. This goal goes beyond obtaining “the right result.” By accepting the substantive-due-process framework created through many decades of precedent, the majority opinion in Dobbs is accepting an incorrect reading of the Fourteenth Amendment. Judges should never do this as a matter principle. You can argue that all precedents have their place, and it’s not practical to undo a well-established precedent. Justice Thomas believes that judges should not interpret law as it is written, and must consider the practical consequences of their decisions.

Besides the fact that it lacks a basis in the Constitution, Justice Thomas points to three reasons substantive due process is “particularly dangerous.” First, the doctrine exalts judges above the democratically elected branches of government by allowing judges to use the Due Process Clause to divine new rights rather than for the limited task of ensuring the people are given due process (notice and a fair hearing). The Due Process Clause contains many rights that the Supreme Court found. The second is that the addition of fundamental rights can complicate and distort other areas of constitutional legal law. The Court, for example, must decide under the Equal Protection Clause whether other groups of people are eligible to the new fundamental rights once they have been established. The third is that the Constitution does not explicitly allow for the creation of rights. This has a history of dangerous results. Justice Thomas explains that in the Dred Scott case, “the Court invoked a species of substantive due process to announce that Congress was powerless to emancipate slaves brought into the federal territories.”

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This is not to say that there is no such thing as an unenumerated right. The Constitution does not expressly grant rights to the citizens. The Ninth Amendment says this explicitly: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The point is not that there are no unenumerated rights, but that those rights clearly do not come from the Due Process Clause. As we celebrate the Dobbs ruling, conservatives ought to study and take seriously Justice Thomas’s concurring opinion.

Thomas’s clear prose points out both the theoretical and practical problems of continuing to accept grave errors in constitutional interpretation. The Court’s obligation to correctly interpret the law should not be overruled by precedent or a refusal to break the web it has created. As we look with hope on a Court finally willing to make bold, honest rulings regardless of the political consequences (see Dobbs, Carson v. Makin, Bruen, and Kennedy v. Bremerton School District), perhaps conservative originalists can even dare to hope that the Court will be bold enough to unwind doctrines such as substantive due process that have caused such abuses of judicial power.

Frank DeVito is an attorney and a current fellow in 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. His wife, three children and he live in Eastern Pennsylvania.

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