Justices who want to get rid of substantive due process

[politicallefty]

Thomas wants to get rid of SDP and replace it with Privileges or Immunities by overturning Slaughterhouse, something on which, for once, I entirely agree with him. Most other anti-SDP justices would probably be willing to just send all those precedents into a black hole, but he at least claims he wouldn't.

What are the practical changes for rights and liberties between SDP and the Privileges or Immunities Clause? All I am aware of is Justice Thomas's attempt to remove more and more constitutional protections.

[politicallefty]

Thomas wants to get rid of SDP and replace it with Privileges or Immunities by overturning Slaughterhouse, something on which, for once, I entirely agree with him. Most other anti-SDP justices would probably be willing to just send all those precedents into a black hole, but he at least claims he wouldn't.

What are the practical changes for rights and liberties between SDP and the Privileges or Immunities Clause? All I am aware of is Justice Thomas's attempt to remove more and more constitutional protections.

Im a big proponent of tearing off the scab that is the slaughterhouse cases. Relying on P&I would at minimum automatically incorporate the entirety of the bill of rights to the States rather than requiring selective incorporation after a secondary "liberty" analysis. At minimum that would overturn precedent saying that grand juries arent required in the States and would put to bed questions about if the 3rd or 7th amendments are incorporated. This actually expands the bill of rights.

I dont have an exhaustive list of purported "rights" that were bootstrapped in through substantive due process but the most well known are:

Right to contract around most laws (largely abandoned in Carolene Products)

Right to send child to religious school (which the 1st probs protects anyway)

Right to teach child a foreign language (again 1st probs protects it)

Right of both marrieds and unmarrieds to use birth control

Right to abortion (now overturned)

Right to decide which relatives live in your house

Right to interracial or same sex marriage (which equal protection probs protects)

Freedom from excessive punitive damages (which is probs protected under 8th amdt)

Right to sodomy (which under the Oconnor concurrence in Lawrence v TX is probs partially protected under equal protection

So the only purported "rights" based on substantive due process that likely arent protected by a different clause in the constitution is birth control, equally applied sodomy bans, and certain zoning regs limiting distant relatives from cohabiting.

I appreciate you making that list, although I do question your sincerity. I will say that I believe that Barron v. Baltimore was wrongly decided. However, even without substantive due process, other avenues remain. Griswold and its close progeny were not based on substantive due process. Justice Douglas was very careful not to revive a line of jurisprudence that would overturn the New Deal and Great Society in one fell swoop

Personally, I find the Ninth Amendment a much stronger way to protect the rights of the people.

[politicallefty]

Personally, I find the Ninth Amendment a much stronger way to protect the rights of the people.

I suppose so, since it fairly screams "hey, federal judges, read whatever rights you want into me!", whereas the Fourteenth Amendment has to be made to say that over the course of the conference and opinion-writing process. I'm a proponent of using the Ninth Amendment as minimally as possible (basically just as a way to dismiss arguments that a right being unenumerated means ipso facto that it doesn't exist) precisely because of this "plucking new rights from thin air" quality. If something like the right not to get eugenically sterilized or not to get arrested for having anal sex really were on the line, though, I think most people even slightly open to legal realism would probably grit their/our teeth and accept a Ninth Amendment rationale against overturning it.

I don't see how that's any different from those that advocate for substantive due process or even those that argue for breathing life into the Privileges or Immunities Clause. What you say against the Ninth Amendment is what many on the right like to say about the Fourteenth Amendment. Thomas wants to use the Privileges or Immunities Clause to roll back decades of rights. He has no intention of reimagining the rights determined under substantive due process. The majority opinion in Griswold is probably on the shakiest ground of all, "penumbras, formed by emanations". While I don't agree with every word (not surprising, considering it was 1965), I do really like most of Justice Goldberg's concurrence in Griswold.

Why on earth would anyone in the year of our lord two thousand and twenty-two "agree with" Barron v. Baltimore? It's a dead letter.

That is true, but it is worth considering when looking at the rights protected by the Bill of Rights. My point above is that it was wrong when it was decided. That would give more weight to the Ninth Amendment as a way of protecting the rights of the people.

[politicallefty]

I'm not exactly sure what happened here, but I do have some thoughts. Everyone from the left to the right believes that there are rights belonging to the people that are protected beyond those enumerated by the Constitution. That is the point of the Ninth Amendment. There are those that say that the Ninth Amendment is not a source of unlimited rights and on that I would agree. It is a means through which one interprets what rights belong to the people. I would ask how one determines what rights belong to the people if the Ninth Amendment and substantive due process are off the table.

[politicallefty]

The way to determine what are rights retained by the people is to determine the full scope of the federal government's powers, and after that has all been accounted for, the remainder is the rights retained by the people. Rights have a reciprocal relationship to powers. I can use, hypothetically, the case of Sebelius v. NFIB to illustrate the point. The people challenging the individual mandate provision within Obamacare were arguing to the SCOTUS that Congress does not have a delegated power to force everyone in the country to get health insurance. They argued that forcing people to buy or obtain health insurance is not within the power to regulate interstate commerce, or the power to tax, or any other enumerated power in the US Constitution. So, therefore, an individual retains the right to go about their daily life without health insurance, if someone wants to take the risks associated with that. However, the SCOTUS decided that the congressional taxing power covers the penalty provision within the individual mandate, so that it IS constitutional. And that means that individuals to not retain the right to go about without health insurance. Wickard v. Filburn is another classic example. When the SCOTUS decided that the power to regulate interstate commerce does cover the act of producing and consuming too much home-grown wheat, the SCOTUS was denying that farmers retain a right to grow and consume all of their own wheat if they want. Whenever the SCOTUS strikes down a federal law because the law is not within any enumerated powers, that is when the Court is saying that people retain a right to do something per the Ninth Amendment.

EDIT: Hey, waitaminute. I remember now that you told me that you were once in agreement with Justice Stewart's description of the meaning of the Ninth in his dissenting opinion in Griswold. If so, then you should already be familiar with this.

I did tell you that I wasn't entirely or necessarily in agreement with Justice Douglas's majority opinion in Griswold, but I don't recall agreeing with Justice Stewart's dissent. I've spoken in the past that I'm more in line with Justice Goldberg's concurrence. I don't agree with everything he said, but I do agree with his invocation of the Ninth Amendment to protect certain liberties.

I was simply asking for your view on how rights and liberties are to be determined when they are not explicitly enumerated. With all due respect, I do not share your view. Rights as a reciprocity to certain governmental powers is redundant. It's the same issue I have when people read the Ninth and Tenth Amendments together. I do not believe the Tenth Amendment overrides the Ninth. Looking at the text of each amendment, the Tenth specifically mentions "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States [...]". That is the relevant phrase in the Bill of Rights that ultimately establishes the federal government as one of enumerated powers. The text of the Ninth mentions rights that belong to the people, not the federal government nor the states.

You have to remember that the Bill of Rights was originally designed to explicitly forbid the Federal government from depriving some fundamental rights of the people. My understanding of the ninth amendment is that the first eight did not exhaust all the rights that the Federal government cannot deprive. The Federal government cannot deprive the rights of the people unless there are corresponding powers delegated to them enabling them to do so. As a result, the ninth amendment does not apply to states and cannot be incorporated against states.

I've already stated that I believe Barron v. Baltimore was wrongly decided. Barron doesn't get much attention today on account of the Fourteenth and incorporation, but it was a topic of debate amongst abolitionists. I think the Bill of Rights should have been read as they are.