Substantive Due Process (Part II)

I am not saying the “Lochner” court never used substantive due process in any of its decisions. In fact, substantive due process was used in probably their most famous decision: Schenck v. United States. Schenck was a socialist from Philadelphia who wrote an anti-war pamphlet during WWI urging citizens to use their rights and not sign up for the draft. The court used substantive due process to define a limit to the first amendment to uphold Schenck’s conviction for espionage. Interestingly, famous justice Oliver Wendell Holmes, who chastised his fellow justices for using substantive due process, wrote the famous statement in the majority decision: acquainting Schenck’s actions to “Falsely shouting fire in a theatre and causing a panic”. If that is the limit to the first amendments legality then every politician today is guilty of violating the first amendment. Substantive due process has become a liberal tool to garner more power for the Supreme Court and diminish the power of elected government officials at both the state and federal levels. Instead of courts existing to reinforce the democratic process, they are legislating new laws. Consider how the court has decided cases on privacy, marriage, and abortion. The court would have to come up with some imaginative theories incorporated into the constitution via the fourteenth amendments due process clause for that to happen. In doing so, the courts have vastly diminished state’s rights under the tenth amendment. Past cases of substantive due process should not mean it is a precedent and the practice should continue. If this is what Justices think our founding fathers had in mind when they drafted the Constitution they are sorely wrong. There is a process to include new “rights” into the Constitution and that is to add a new amendment. If it is the will of the people to add new privacy laws; gay marriage laws; and abortion laws amended to the Constitution, then so be it. It is not up to the court to “assume” or to “creatively” find ways around the constitution’s original intent. Let’s face it; substantive due process takes the will of the people out of the equation and that is not right. I find it hard to believe this country could not unanimously pass an amendment to protect American citizens’ privacy. It shows we are lazy and want to sidestep the constitution to get our way. It is a power grab.

To render social justice decisions is very dangerous as Chief Justice Taney found out when he ruled incorrectly on Dred Scott. That being said, the Taney decision put the country on the fast track to the Civil War and ending slavery once and for all. Most scholars disagree with that statement, but had Taney ruled the other way, it is quite possible that Lincoln is not elected president in four years. It is highly doubtful that the decision is carried out by the South so nothing would have changed. Taney’s decision made President Buchanan a lame duck from the get go since he concurred with Taney’s decision. Many call Dred Scott the worst decision in American history and it is vigorously debated today. Statues of Taney are continually defaced and many are still calling for them to be taken down. If that kind of animosity exists 160 years later, think of the animosity that existed when this decision was first rendered. The Dred Scott decision was undoubtedly a huge factor in the start of the Civil War. Fast forward a hundred years: the court legalized abortion in Roe v. Wade in 1973. Forty years later, a majority of Americans are still opposed to abortion (albeit a small majority). This is how the court rules against the will of the people. Recently, the court made gay marriage the law of the land despite nearly half of all states having constitutional amendments defining marriage as between a man and women. Social justice decisions do nothing except polarize Americans, especially when magical techniques such as substantive due process are used to pass the measure.