To properly understand due process, we must grasp the key distinctions between law and decrees and between law and morality. If judges are authoritative arbiters of the “logic of morals,” we have subjected ourselves to an unelected, life-tenured legal elite whose reach exceeds our grasp.
Sourced through Scoop.it from: www.thepublicdiscourse.com
One of the most contested questions in contemporary constitutional law is the status of the doctrine known as “substantive due process.” This reading of the due process clauses of the Fifth and Fourteenth Amendments converts them from saying that a person’s life, liberty, or property may be taken, so long as he or she is provided with due process of law, to saying that such deprivations may not occur at all, if judges hold that a law is “arbitrary,” unreasonable, or unjust.
The “substantive” reading of due process has given us quite a few extremely controversial Supreme Court rulings:Dred Scott v. Sandford (1857), telling Congress it may not prohibit slavery in federal territories; Lochner v. New York(1905), holding that the state may not limit the hours worked in commercial bakeries; Roe v. Wade (1973), inventing a right to abortion on demand; Lawrencev. Texas (2003), striking down a state’s power to prohibit sodomy; and most recently Obergefell v. Hodges (2015), “discovering” that the states must grant marriage licenses to same-sex couples.
Some people applaud one or more of these rulings as “substantively” just, while condemning others. I can think of no one who applauds them all. But I condemn them all, without even considering the substantive case for the justice or injustice of any of the policies invalidated. And I do so for one simple reason: they are all grounded on an erroneous reading of the due process clauses, which has no support in the plain meaning of the Constitution’s text or in the centuries-long tradition and development of due process jurisprudence prior to Dred Scott.
Laws, Decrees, and Dred Scott
Supporters of various “libertarian” readings of the Constitution have attempted to supply what the plain text of the due process clauses will not. They have searched the history of American jurisprudence prior to Dred Scott in a quest for more respectable precedents in which the language of “due process of law” (or a similar “law of the land” clause that appeared in many state constitutions) was employed by judges to strike down legislative policies. Some libertarian revisionists claim to have found quite a few of them from the revolutionary period through the mid-nineteenth century.