A Layman’s Note To A Friend On Substantive Due Process, Dobbs And Courts v. Majorities

 I’m not overly familiar with the movement from penumbral emanations to placing for abortion squarely the constitutional basis on liberty as it sits there in the 14th Amendment. I know that Douglas J. in Griswold (I think for the first time) spoke of them. I understand by the time of Roe, courts, and the court in Roe, bypassed penumbral emanations and posited directly a constitutional right of privacy as a necessary legal idea embedded in the tradition of the common law, hence in the Constitution and in American history and traditions. The seeds of the recognition of this right go back to Harvard Law Review essay co-written by Brandeis and Samuel Warren in 1890. https://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html

It’s been called by some legal academics the most seminal law review article ever written.

I’m not sure when liberty became so front and centre in the abortion arguments but it was always hovering over them, there to be used. It was employed for example in the first third of the 20th century to vindicate the sanctity of contract as in the in/famous Lochner case—striking down a regulation specifying the maximum hours bakers could work. The reasoning broadly was that freedom of contract was a fundamental right under liberty in the 14th Amendment, a notion of economic liberty.

So liberty as a constitutionally protected web of unspecified rights is relatively venerable in US constitutional law. It inheres in the idea of substantive due process, which the reasoning in Lochner exemplifies. One scholar has put it that procedural due process asks whether due procedures were followed when taking away life, liberty or property. Substantive due process asks whether there is a good enough reason, a good enough substantive purpose, for the state to deprive a person of these most basics things. 

SCOTUS case law post Roe is littered with decisions based on the “liberty argument.” I’ve already listed examples of the kinds of decisions that argument has yielded. Another example is a case where SCOTUS talked about parents’ fundamental liberty interest with regard to their kids thus yielding all manner of subsidiary constitutionally protected rights in the care and manner of upbringing their children, including for one example home schooling. So home schooling one’s kids is in the U.S. a constitutionally protected right of which there is no mention in the Constitution. (As also noted by the unpleasant Sotomayor in oral argument in Dobbs, SCOTUS as a final striker down of duly passed laws is also nowhere stated in the Constitution.)

So what coalesced post Roe, as I’ve noted, is one strand of the liberty argument, which is nicely put by Post in the last bit I sent you:

“Surely most people would agree that we enjoy the "liberty" in this country of making vital, intensely personal, life-altering decisions - when and with whom to start a family, where to live, what religion to adhere to (or not), who to have sex with (or not), whether to send one's children to public or parochial school, and the like - without interference from the state.’

One of my repeated arguments btw  is that there’s no real difference between penumbral emanations and the application of general principles to specific situations. The former is to my mind but a fancy way of talking about the latter. As Douglas put it in Griswold, paraphrase, “Without the  subsidiary rights that flow from explicitly stated rights, the latter would be stark and barren.” So, I argue, the idea of liberty would be severely stripped down if it didn’t necessarily house the idea of privacy, which itself would be similarly unclothed without the idea of bodily autonomy. All of it, the whole span of rights housing under liberty, only going up to a point.

So what our issue boils down to, since you’re in tune with the  liberty argument as it applies to abortion, is whether the courts or majorities should pronounce on this issue. My insistent argument is that in the US specifically and for me philosophically in the matter of fundamental rights and liberties, we need to be protected from majority decisions, which include whimsical, capricious and prejudicial ones. If it takes a court to ensure minorities equal access to the law, to protect them from racial discrimination, why would we relegate what people can do with their bodies in the way of their most intimate, personal private decisions to majorities? For surely bodily autonomy up to a point is as fundamental as things get.

Finally, you understand as well as I if not better, that the U.S. is a republic and its republicanism qualifies its democracy.  I’d have thought you thought that that is a welcome check on majority hence state power. In this sense your insistence on abortion being left to majority will seems to cut against your general philosophical outlook.