Posted on 06/29/2022 3:29:55 AM PDT by definitelynotaliberal
As soon as the draft opinion in Dobbs leaked, left-liberal commentators rushed to offer a parade of horribles: The traditionalist logic of the Glucksberg test would imperil a whole set of rights previously recognized under substantive due process, such as the rights to enter into a same-sex marriage, to engage in same-sex relations, even to use contraception. When the full set of opinions were released, the dissenters in Dobbs—Justices Stephen Breyer, Elena Kagan, and Sonya Sotomayor, who wrote jointly—adopted exactly this line. On the opposite side, the court’s rightmost justice, Clarence Thomas, wrote in a concurrence that “in future cases, we should reconsider all of this court’s substantive-due-process precedents.”
We may thus distinguish the logical claim that the traditionalist rationale of Dobbs makes questions like same-sex marriage legally indistinguishable from abortion, on the one hand, from the normative claim about which way that inconsistency should be resolved. One might hold that the dissenters in Dobbs are correct as to the logical claim that under a test of tradition, abortion and same-sex marriage are indistinguishable, yet also hold, in contrast to the dissenters, that cases like Obergefell were wrongly decided, and perhaps should even be overruled. In a configuration worthy of this publication, the left and right would then join forces as a logical matter, albeit with opposite normative views, against those who argue that the logic of Dobbs is limited to abortion and doesn’t spill over to other settings.
(Excerpt) Read more at compactmag.com ...
From the article: his dissent in Obergefell, rely squarely upon the tradition-based test of an earlier decision, Washington v. Glucksberg, which rejected a claim of a constitutional right to assisted suicide and held that “substantive due process”—the oxymoronic legal rubric under which the high court has recognized libertarian individual rights in the sphere of marriage, family, and sexuality—protects liberty only when “deeply rooted in [the] nation’s history and tradition.”
If anyone could explain how "substantive due process" is oxymoronic, I would appreciate it. I thank you in advance.
Thank you
Thanks for posting this. I was kind of wondering about the issues it raises, in the back of my mind, but hadn’t articulated them. This author is really very good.
Substance and process are two basic categories into which law can be divided. If a court held against you, were you given the opportunity to appeal? This is a question of process. Does the legislature have the constitutional right to stop you from shouting “Fire” in a crowded theater? This is a question of substance.
Here I get into an area I’m not sure of. I THINK that “substantive due process” describes substantive laws or prohibitions that are protected, in modern theory, under the 14th Amendment’s due process clause, which is thought to extend much of the Bill of Rights to the states. But don’t quote me. There’s a huge literature on substantive due process, and some of its subjects are “good” (uncontested liberties in modern political thought, that is) and some are “bad” (unversally wrong in modern political thought). So the topic is fraught.
Here is where I’d say it is different (and substantially I agree with the author). If you look to the constitution for both neither are there. But for marriage, if my spouse died, her 401k and other property are mine without tax liability. For the gays they wanted the benefits of inheritance without tax liability. So we had to upend the whole institution of marriage to accommodate them RATHER than simply changing the tax code. BUT again (if this wasn’t clear initially), I’m not arguing in favor of gay marriage, I think it should not exist.
Marriage is different because all states must recognize each other’s marriages. That’s why they made Utah outlaw polygamy before becoming a state.
There is “substantive due process” (the idea that government is not entitled to interfere with certain rights except after following certain very stringent procedures) and then there is the judgement as to WHICH traditional rights are entitled to substantive due process.
https://www.law.cornell.edu/wex/substantive_due_process
Substantive due process is the principle that the Fifth and Fourteenth Amendments protect fundamental rights from government interference. Specifically, the Fifth and Fourteenth Amendments prohibit the government from depriving any person of “life, liberty, or property without due process of law.” The Fifth Amendment applies to federal action, and the Fourteenth applies to state action. Compare with procedural due process.
Yes. You have nailed the oxymoron to the wall. Well done, Sir! (or Ma’am.)
This whole Dobbs case is horrible. It has interfered with my constitutional right to poontang! ( sarc.)
Witut poontang, we are ALL GONNA DIE!( double sarc.)
Ha!
We the People...
They the Employees.
If I assert a right, I have it. If the state takes it from me, I don’t.
.
“This author launches into a legal structure discussion and never once mentions the Constitution and what it says.”
Mmm, I don’t think he’s trying to present a full and complete analysis of Dobbs. He’s just trying to point out one aspect of it that others may not have focused on. After all, Alito’s opinion didn’t begin with a discussion of the Constitution, and I’m sure you don’t doubt it’s authoritative. People start where they imagine their audience is, and go from there.
Beyond that, no one supposes that the Constitution mentions abortion. No one supposes that it mentions stare decisis, either, but it’s a principle most judges violate at their peril. So you see it’s a lot more complicated than what the Constitution says. Sorry, probably you knew that already. Never mind.
the “substantive due process” argument leads to a “if people do it, its ok” result
yeah, you horndogs took one in the keister
yeah, you horndogs took one in the keister>>>>>>>>>>
Speak for yourself! LOL.
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