Abortion, the New Federalist Hustle, and What is “Substantive Due Process”

I saw an old Antonin Scalia interview in which he said that his court invented a new nonsense right to “substantive due process”, to create a right to abortion which did not exist in the Constitution. Far from “substantive due process” being invented by the Warren Court, I remembered it being talked about as far back as the late 1800’s, when states passed laws regulating businesses and got sued.

This is interesting because the states’ rights fetish of the New Federalists was invented in the 1980’s, based on a fear that federal courts would use the commerce clause to turn the United States into the USSR. And “originalism” – meaning in practice state immunity to federal courts enforcing the “public good” – could be used to stop this. But long before Williamson v. Lee Optical (1955), cases like Munn v. Illinois (1877) and New State Ice Co. v. Liebmann (1932) sought to use the new 14th Amendment federal “due process” clause in federal courts, to stop states regulating business “for the public good”.

“Substantive due process” was designed to stop control of industry by state governments. This is the same purpose for which the Federalist Society was created, to stop control of industry by the federal government. New Federalism was not invented to substantively bring back witch presses and witch prickers, which is what New Federalists use states’ rights for today.

In common law, The King of England could cap the price you were allowed to charge for a ferry ride across the Thames River or something. Because your property was a matter of public importance. But The King could not limit something like the maximum amount you were allowed to bet when gambling. Because how much you bet on horses was not a public service but your own “liberty interest”.

The substance of such laws limiting your freedoms, was argued to be something also restricted by the 14th Amendment, different from and in addition to the right to procedures in criminal court. So they can’t take away your house without a trial. And they also cannot pass a law that says all your houses now belong to the government. Because your house is not a public service or public property.

So far as I can tell, “substantive due process” is a sort of judicial review, of state laws that infringe unenumerated or unwritten traditional rights. So something like the right to say what your own children are taught in school, or the “finality” right of states to never have to spend money in court again after they convict someone, can be defended as rights that cannot be taken away.

After the Fourteenth Amendment made clear that states were prohibited from violating liberty and property rights without due process, state citizens took that as a new invitation for courts to examine whether various state laws (like maybe rent control or requiring a license to fish) took away people’s liberty or property rights (without due process). This was sort of progress away from collective tribal control and towards libertarian capitalism, enabled by federal courts against states.

There is some right of courts to review laws based on whether the state government has a “legitimate interest” in regulating a behavior. But so far as I can tell, the problem courts found, is when courts measured your unwritten liberty interests against this imagined public good, they were just musing and inventing the same as the legislature. Courts were just inventing things.

The legislature is free to invent theories without scientific examination, like saying the price of ice will be higher if there is competition than if there is a local ice monopoly. But courts are not allowed to come back inventing their own opposing theory, that the price of ice will be lower with competition, and so the government does not have a legitimate public interest in requiring ice houses get licenses to operate.

Just based on a quick glance at old cases, it seems like the solution they found to courts just inventing rights and public interests (e.g. Imbler v. Pachtman), is courts looking to actual historical events to see if people historically had a right to something. This is something like Clarence Thomas asking in Trump v. Anderson whether any states removed national candidates from their ballots based on Fourteenth Amendment Section 3, in the years immediately after it passed. Courts also seem to look at old laws to try to see if carrying guns was restricted in London or New York City or whatever, to see what really are your unwritten sacred liberty rights.

The problem when looking at history, is that you then cannot make progress. The Fourteenth Amendment was intended to end traditions. Suppose the purpose of the 14th Amendment was to stop states from locking people up without trials. You might look at history, and see that states were locking people up without trials (like in sundown towns). And so you could try to argue the right to a trial, is not a traditional liberty interest protected by the 14th Amendment. So then you have to see if it was made totally clear when it was passed, that the Fourteenth Amendment did intend to protect the right to a jury trial, or the right of black people to vote or whatever.

The next step, is New Federalists say unless the Fourteenth Amendment was totally specific and made clear with an exact sentence, that it intended to abrogate some tradition, the tradition stands. So unless the 14th Amendment specifically makes totally clear that a jury has to be more than one person, then states can have a jury of one person who is also the mayor, and call it a jury trial. Unless the Fourteenth Amendment specifically said “you have a right to a a jury of at least six ordinary citizens selected at random”, then you still don’t have that right and states maintain their “traditional” or common law rights.

So without even looking at Roe v. Wade, here is how Scalia seems to have characterized it. The argument was that people have a natural right to privacy or liberty with their own body. The 14th Amendment created a new mechanism for people to stop states violating that right with laws that violate substantive due process. This was not entirely new, rather it was asking federal court to treat your body like a grain elevator, or like what church your children attend. It doesn’t matter that states restricted abortion when the Constitution was written, the Fourteenth Amendment creates a new mechanism for protection of the old or natural private right.

The other side of the argument is that the Supreme Court just invented this right as if they were a legislature. When in reality, states could restrict abortion either at the time the 14th Amendment passed, or in colonial times proving it is not a traditional liberty. The only counter-argument I can come up with, is that it was always a natural liberty to abort your own child which nobody could hope to regulate. And laws against abortion, were laws against young men and local officials forcing sluts to get abortions, to save their families from shame and obligations.

Some rights the Supreme Court seems to have invented like the right to abortion, are qualified immunity, the right of states to “finality” of convictions overriding due process, and the right of Trump to not be removed by a state from their President ballot outside any federal jurisdiction. These seem to be examples of the Supreme Court inventing rights despite the intentions of the legislature.

There is no traditional or common law right of Trump to be on a state ballot or of any other state to have him there. Rather, this was the Supreme Court imagining their own idea of what the public interest is, and using that to invent a right and create federal jurisdiction to examine what a state is doing. They invented a federal right against state action created by the Fourteenth Amendment, even though the Fourteenth Amendment did not have a sentence that said “states can no longer remove people from their national candidate ballots, to enforce societal norms”.

Judge Kagan imagined there is a national public interest in stopping states removing national candidates from ballots. And Clarence Thomas looked at history, and said since no state previously removed a candidate from their ballot in exactly this way with this reason under this color, then there is no traditional right for states to decide who is on their ballot.

Looking at history selectively is just a way to serve the cult fetishes of the New Federalists, as their organization has been repurposed to use states’ rights, long after the fall of the Soviet Union. Given the judicial review of Obamacare allowing it as a tax, the original purpose of the Federalist Society has long since left the building.

For example, Trump appointee Elizabeth Branch dissented in NAACP v. Alabama, saying that the 11th Amendment embodies a broad traditional immunity of states against lawsuits in federal courts (unless Trump is removed from their ballot). And so the Voting Rights Act did not specify clearly enough that it was breaking this tradition to allow private citizens to sue in federal court for voting rights. The New Federalists use federalism to protect and even invent government power over individual rights, in the costume of traditional immunity against federal judges.

The strange reality is that the New Federalists are actually in favor of the supposedly traditional rights of primitive governments to infringe individuals for the collective good. And they are against rights of individuals created progressively by law. It is strange because their cult was invented to preserve private economic freedom against industrial central planning during the Cold War, by elevating immunity against federal courts. New Federalism was not invented for its present purpose, to promote the collective order of primitive agricultural societies, by insulating state government power against private rights in federal court.