The modern conservative legal movement grew up in response to the Warren Court’s activism in the 1960s. In opposing the decisions of Justice Brennan and the rest, conservatives made use of the same arguments that liberals had used during the New Deal, when the Supreme Court had a conservative majority resistant to the Roosevelt program. In essence, the conservatives during the Warren years called liberals hypocrites for not deferring to the legislature, since deference was the claimed reason for the 1937 overturning of Lochner v. New York (1905). When the conservatives finally did get a majority on the Court in the 1980s, it was under a Republican president, and deference to the Reagan administration made a lot of sense for conservatives.
Considering this history helps us to understand why conservatives would attack the decisions in Roe v. Wade (1973) and Obergefell v. Hodges (2015) using the same arguments they were already using against the liberals on the Court. Still, they shouldn’t do so. For as much as some conservatives may not like it, so-called “substantive due process” is valid. As I will argue below, there are other, stronger arguments against these two decisions that conservatives would like to see set aside.
First, let me address what substantive due process is. It’s very simple to explain, starting with the text of the Fifth Amendment to the Constitution: “No person shall . . . be deprived of life, liberty, or property, without due process of law.” The Fourteenth Amendment uses the same language as applied to the states, and therefore applies the meaning of the Fifth Amendment against the states.
Let’s assume for a moment that the phrase “due process of law” is entirely procedural (although this is debatable), describing the process of indictment, a trial before a neutral judge, and resulting in a conviction.
Substantive due process means that these legal procedures have to have taken place before a person’s substantive rights to life, liberty, or property can legitimately be denied. A violation of substantive due process could be committed by the executive (such as imprisoning a defendant without completing these procedures), or by the legislature. When an act of the legislature purports to authorize the executive to take a person’s life, liberty, or property without going through this process in the courts, that is unconstitutional. It is also unconstitutional if the legislature directly takes a person’s liberty without first going through this procedure in court.
A person’s liberty is the right to do those acts which do not harm others. The statute prohibiting a person from leaving a jail cell takes a person’s liberty just as much as a guard who physically prevents the person from leaving.
As defined by Thomas Jefferson,
Rightful liberty is unobstructed action according to our will, within the limits drawn around us by the equal rights of others. I do not add “within the limits of the law”; because law is often but the tyrant’s will, and always so when it violates the right of an individual.
In the case of Korematsu v. United States (1944), the U.S. Congress authorized the President to prohibit people from entering or remaining in a military zone when prohibited from doing so by executive order. The President created a zone that applied to the western coast of the United States to those of Japanese ancestry, except for small pockets of internment camps. This act took the liberty of those with Japanese ancestry without first subjecting each of those people to the judicial process of indictment, trial, and conviction.
In Meyer v. Nebraska (1923), the Nebraska legislature prohibited even private schools from teaching in any language but English. This took their liberty to teach in the language of their choice without first going through any process of indictment, trial, or conviction. Before any individual’s liberty—such as the act of teaching in the language of their choice—can be taken away, that individual must be convicted of a crime in a court of law. Any statute passed by the legislature that prohibits a person’s acts of liberty prior to the judicial process of being convicted of a crime violates the Fourteenth Amendment’s Due Process Clause. The government can control public schools, but not private education, in which people have the liberty to teach each other and their children as they choose.
Now let us return to Roe and Obergefell.
The problem with Roe wasn’t in the failure to give deference to anti-abortion laws passed by state legislatures—it was in not recognizing that the unborn baby is a person at quickening according to the common law. As the Court said in Roe:
In a frequently cited passage, Coke took the position that abortion of a woman “quick with childe” is “a great misprision, and no murder.” Blackstone followed, saying that, while abortion after quickening had once been considered manslaughter (though not murder), “modern law” took a less severe view.
Quickening isn’t a word we hear a lot today, but it derives from the word “quick,” which meant “alive,” so quickening meant literally becoming alive and applied to when the mother could feel the baby moving (as early as 13 weeks, although it may be as late as 18 weeks). The Court went on to say that Coke and Blackstone “intentionally misstated the law.” This is not so; and it is here that the Court went wrong in rejecting out of hand the long-held understanding of quickening as the point at which a person is recognized by law.
Considering Roe alone—without the later abortion cases—the Court may have come close to this common law understanding, recognizing the state’s interest in “protecting potential life” at the point of viability instead of quickening. The Court should have instead allowed state lawmakers to ban abortion after quickening but not allowed them to ban abortion before quickening. This would have preserved the common law understanding of when the right to life begins and preserved the mother’s liberty to control her own body prior to this point.
It is the original understanding of those who wrote the Due Process Clauses that is important to an originalist, which is why the common law understanding of these terms should prevail.
I am a Catholic who believes that life begins at conception and that abortion at any stage is a sin; but that is not the question. The role of judges—and the Supreme Court—in our society is not to impose their beliefs on the nation. Instead, they must ask what was the original understanding of the Constitution at the time it was ratified.
In this case we must ask when did the Founders believe life began for an unborn baby, and thus when could the government prohibit the taking of that life without taking the liberty of the mother over her own body? While most of the Founders were Protestants, the Protestant Reformation accepted the Catholic teaching on abortion that existed at that time.
Starting with Pope Innocent III in 1211, the church held that prior to “animation,” an unborn baby was not ensouled and so at that point terminating the pregnancy was not considered murder. This was eventually identified with the time when the mother first feels the movement of the fetus, which became the official, consistent opinion of the Roman Catholic Church (except for three years from 1588 to 1591)—and became part of English common law—until Pope Pius IX in 1869 released the bull Apostolica Sedis Moderationi. This was long after the ratification of the Fifth Amendment.
Any idea that the Founders believed that life began at conception is just wrong—they believed it began at quickening. Even if you do not believe life begins at quickening (as I do not), we must accept as a society that others will believe things that we do not. Are we really willing to say that a person should be thrown in jail for a belief that was the official Catholic position for half a millennium?
I hope that one day we can pass the Human Life Amendment to the Constitution and decide as a society that life begins at conception. But until that day arrives, it is not a judge’s job to decide for society when life begins rather than accept the original meaning of the terms “life” and “liberty.” Nor does the Tenth Amendment say that the states must decide this issue. The issue—consistent with the Tenth Amendment—is reserved to the people.
As to Obergefell, it uses the term “liberty” incorrectly. The right to liberty, as I said, describes a person’s right to do those acts which do not harm others. There is nothing in a state law that prohibits recognition of a marriage by that state’s government that could possibility prohibit any act by an individual. Two gay individuals could get married in any church that would accept them even prior to Obergefell. Prohibiting that would be a problem under the Fourteenth Amendment Due Process Clause. A state is not required under the Fourteenth Amendment’s Due Process Clause to recognize any marriage at all. Lawrence v. Texas (2003) more correctly invoked the Due Process Clause: Two gay people having sex does not harm any other person and therefore that right to liberty cannot be taken away without due process of law.
The argument for equal rights for gay couples is more correct than the due process argument for recognition of gay marriages. The state cannot properly grant some people benefits (such as tax benefits) without those being available to everyone, including gay individuals. This has nothing to do with requiring the name “marriage” instead of “domestic union” or another term, but with giving substantive rights to some but not others.
Understanding the original meaning of the Due Process Clause is important. Attacking judges for trying to do so rather than just defer to legislatures doesn’t help further the conservative cause.