Junebug
Well-known member
June, what's your stance on substantive due process? Just curious.
Also I like to look at our 21st century society through a lens which conveys the Constitution within a context of said society rather than in a 1789 context.
I think "substantive due process" is an oxymoron, and it's legal standard--those rights that are "fundamental to the rights of ordered liberty"--is a synonym "rights judges think should be enumerated but were not." I'd be happy if we reversed every single substantive due process case and began to grapple more with what the privileges or immunities clause means. See Thomas's concurrence in McDonald. With the privileges or immunities clause, at least we know what we are arguing about, rather than some judge-made repository for pure-and-simple policymaking. Either way, I think problems arise when we loosen the moors of the constitution to history and view it as a living document. I view the constitution as a structural document that should remain relatively static, unless changed through the amendment process, and the legislature should be the one making laws for society-in-time. The enumerated rights are sacrosanct (speech, assembly, search and seizure, jury trial, etc.) and must be interpreted in light of the technological advances of our time, but the rest the political process can figure out on its own for each generation.
If we, as a society, want to conclude that healthcare is a "right," which we basically have, we can implement that choice through the legislative process, which we basically have. We don't need the courts to do that for us.