Justice Thomas Takes On “Substantive Due Process” Doctrine in Dobbs

With the overturning of Roe v. Wade and Planned Parenthood v. Casey in Dobbs v. Jackson Women's Health Org., the U.S. Supreme Court has finally recognized that abortion is not a Constitutional right and is no longer protected under the 14th Amendment. 597 U. S. _ (2022). With this historic victory, states can now regulate or completely ban abortion without violating supreme court precedent.

In addition, Justice Thomas issued a concurring opinion providing valuable insight into the Court's analysis in creating the concept of “substantive due process.” Thomas has correctly pointed out that nowhere in the Constitution does the term “substantive due process” appear. Nevertheless, the Court in recent decades has seen fit to interpret the 14th Amendment’s due process clause (i.e. “nor shall any state deprive any person of life, liberty, or property, without due process of law”) to include the ability for the Court to recognize or create certain unspecified rights based on little more than their internal feelings of what is and ought to be.

When determining whether a claimed right is a “fundamental right,” the Court today focuses on whether or not it is “deeply rooted in this nation’s history and tradition” and/or “implicit in the concept of ordered liberty.” When performing this analysis, the Court will look to see if there is a long history and tradition of recognizing the claimed right within the United States. If the Court does not find historical evidence of such a right, the Court will then look to see if there is a right implicit within the very concept of ordered liberty.   Usually, the more complex or controversial issues facing the Court are not rights long established in the nation’s history, but instead turn to the implied concepts of ordered liberty.

The Court has become known for recognizing (or creating) new “fundamental rights” under the guise of the right being implicit in the concept of ordered liberty. Many of the recent cases that have changed the landscape of fundamental rights include Obergefell v. Hodges (right of same-sex couples to “marry”), Lawrence v. Texas (right to engage in sodomy), and Griswold v. Connecticut (right to receive contraceptives). In each one of these cases, the Court has created a fundamental right based on the idea that the right to engage in these activities is implicit in ordered liberty.

The problem with the Court’s analysis of ordered liberty is they have no objective standard for what ordered liberty is. What one justice considers to be ordered liberty may be vastly different from the other. Indeed, as Justice Alito states in his dissenting opinion in Obergefell: “If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their sense of what those with political power and cultural influence are willing to tolerate.” The Court’s interpretation of what a right is, without an objective source of reference, is a path to internal destruction and an erosion of the constitutional and enumerated powers that the founders have established in this nation. Under this standard, each individual on the bench puts his or her own belief of what should be ordered liberty and not necessarily what liberty is.

There is no compelling evidence and no previous history that would give ample support that “same-sex marriage” is a fundamental right, and it is explicitly prohibited in Scripture. If the Court were relying on an objective source for what a fundamental right is (such as the Bible or the actual text of the Bill of Rights), then there would be more consistency regarding the application of ordered liberty. But since the Court has in modern times applied it in whatever way they feel is right, the idea of liberty becomes increasingly vague and subjective.

Justice Thomas’s concurrence in Dobbs correctly points out there is no Constitutional right to an abortion, but he further states that the very concept of “substantive due process is an Oxymoron that lack[s] any basis in the Constitution.” Indeed there is nothing in our written constitution declaring substantive due process rights. The Due Process Clause of the 14th Amendment simply declares that a state shall not deprive any person of “life, liberty or property without due process of law.” It does not delineate between “substantive” rights and others.

Justice Thomas questions the idea that the Court has the ability to create rights based on the claim that states cannot deprive an individual of certain due process rights. Thomas bluntly states that “at most the Due Process Clause guarantees process.” He points out how historical evidence shows that “due process of law merely required executive and judicial actors to comply with legislative enactments and the common law when depriving a person of life, liberty, or property.” Based on Thomas’s analysis, the Court has no business creating new fundamental rights under the guise of Due Process, including a right to abortion. On that basis, Thomas further suggests that the Court should at a later time reevaluate the 14th Amendment substantive due process jurisprudence and specifically mentions Griswold, Lawrence, and Obergefell due to the fact that “any Substantive due process decision is demonstrably erroneous.”

Thomas wants to return to the plain text of the 14th Amendment and prevent the Court from making judge-made laws or, in this case, judge-made rights. In our American constitutional order, we believe that fundamental rights do not come from the Court or the legislature but from God. This idea that the creation and removal of rights are outside of the jurisdiction of the civil government is reflected in the Deceleration of independence, where it is states: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” (emphasis added). The 14th Amendment specifically pulls the language of “life” and “liberty” from the Declaration of Independence. If rights are from God, how can any judge (or person for that matter) create or grant rights to the populous? The Substantive due process jurisprudence is inconsistent with this because it is completely based on the notion that our rights come down from the state.

Analyzing the jurisprudence of Justice Thomas, the Court should no longer try to derive rights out of the 14th Amendment due process clause because the 14th Amendment does not prescribe any ability for the Court to create a fundamental right. According to Thomas, the Due Process clause does precisely what it says: prevent the government from depriving life or liberty without first receiving due process of law. The Court has overstepped its authority to interpret the 14th Amendment and created certain rights that are also thereby subject to revocation at any time the Court feels it is proper. Thankfully, at least on the critical issue of abortion, the Court has finally corrected the damage it had done to the Constitution in this regard.