It is like a spell that these people cast which says that every fad that they discovered in the last few years was always a part of the essential fabric of the Constitution.
Brion McClanahan: Why The Left Loves Substantive Due Process
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For an explanation of another thing ‘these people’ love (and practice), namely ‘cancel culture’ (more generally secular moral absolutism), see the following brief Twitter thread — link
The 14th amendment is written so breathtakingly broad as it is, that these naked attempts (such as “substantive due process”) to go beyond the fair import of the words raise no eyebrows among the couch potatoes and lemmings. The Slaughter House cases did a lot to reign in the 14th amendment, and if we are stuck with the 14th amendment, we ought at least to go back to its honest meaning.
But “substantive ” and “process” are two words which any lawyer knows are a contradiction in terms. Procedural rules are the vehicle through which substantive rights are vindicated. There may be overlap at times but it does not mean the two words go together.
This is what a judge is really saying when they recognize this doctrine: “I have before me a particular law which creates a substantive outcome I dislike. Because I dislike the outcome so much, I am going to assume that any time there is such an outcome, there can be no fair process by which that substantive outcome is achieved.”
A judge need not even perform any critical analysis of the inherent fairness of the underlying process in a substantive due process analysis. It’s both intellectual chauvinism and intellectual dishonesty in one stroke.
So under the Roe rubric, no law restricting abortion during trimester one can ever be enforced or enacted fairly, even if the legislature which passed the law was duly elected by a majority. Totally the opposite of democracy. But perfectly consonant with an “Our Democracy.”
Exactly so. To go to your Roe example, why should a blackrobe limit herself trimester one? There are several states where you can abort up to moment of birth (and with a wink) even during birth. As you say, both intellectual chauvinism and intellectual dishonesty in one stroke.