Towards Stronger Legal Arguments for Gay and Reproductive Rights
By
David Gottfried
Liberals love to demean Clarence Thomas, and they can rightfully repudiate him for many reasons: He is a reactionary and a ribald, rough reminder of what sexuality once meant in this country.
However, they can’t call him stupid or intellectually dishonest. In the Dobb’s decision, the recent Supreme Court decision over-ruling Roe v Wade, he clearly and expertly articulated an argument I hadn’t heard since I was in NYU law school.
He said abortion rights could not be defended on the grounds that they were a part of “substantive due process.” He argued that the 14th amendment’s due process clause ensured that cases would be processed fairly. It does not enshrine any substantive rights because it isn’t about substantive rights; it is about our right to a fair process, such as the right to cross examine people who testify against us. The due process clause is first and foremost, and perhaps really exclusively, a clause which ensures that we will receive fundamental fairness, or due process, when we are before a Court of Law.
Liberals should remember that prior to the New Deal another form of substantive due process existed, and this form of due process empowered business to persecute labor, and this was famously exemplified by Lochner v New York, a case in which the Supreme Court invalidated a New York Law which said that bakers could not work more than 50 hours per week. The Supreme Court found that businesses had the substantive due process right to make workers work for as long as they wanted.
Very simply, at the end of the 19th century and the beginning of the 20th century, when economic aristocrats wanted to strike down laws barring robber barons from treating workers or consumers like dirt, they found willing accomplices in the Courts who said that they had a substantive due process right to treat people harshly (Of course, the right wasn’t phrased like that). In the last third of the 20th Century, feminists and gay people, in an effort to expand their freedom, claimed that they had a substantive due process right to what they wanted.
Very simply, defending gay rights and abortion rights by means of the substantive due process doctrine is not wise: Such a doctrine may either be deemed invalid, for the reasons stated by Justice Thomas, or it may also be used to defend a so called substantive due process right to keep people in penury, to get rid of maximum hours legislation, to permit parents to whip their children till they draw blood.
I believe that there is a much better means of defending abortion rights and gay rights. It is by means of the constitutional right to privacy. (Footnote 1)
In Griswald v. Connecticut, in 1965, the Supreme Court struck down a statute prohibiting the sale of birth control devices to married couples. The Supreme Court said that in the penumbras, or the shadows, of the 1st, 4th and 9th amendments there is a right to privacy. The first amendment gives us a right to expression and the right to expression gives us a right to our selfhood and our individuality. The 4th amendment prohibits searches and seizures without a warrant and therefore bars the constable from invading out bodies, ourselves and our privacy. And the 9th amendment, by holding that our constitution is not an exhaustive recitation of all of our rights, magnifies and amplifies the first and fourth amendments.
In Griswald, the Court found that this right to privacy gave married couples, and later anyone, the right to use contraceptives. The right to privacy is the umbrella right which encompasses abortion and gay rights. I suggest that progressive lawyers return to this jurisprudential theorem so wisely formulated in Griswald v Connecticut.
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Footnote 1: Some people will say, for the 99th time, that since abortion, or the right to privacy, isn’t mentioned in the constitution (Hereinafter referred to as con, as it’s proving to be a con job because so many people never read it) there is no right to abortion. I already addressed this issue in other articles. Let me briefly explain the cardinal reasons why the right to an abortion, or to privacy or gay rights, can exist even though it isn’t mentioned in the con:
A) The con is less than ten pages long. Most of it consists of procedural rules regarding the three branches of government. It cannot be deemed an exhaustive list of all rights.
B) The 9th amendment says that other rights, not mentioned in this constitution, are left to the States and to the people.
C) There is a basic rule in constitutional construction which holds that the words must be construed broadly and liberally. The constitution consists of the broad brush strokes of a nation’s legal regime, not the details.
D) The bill of rights was added to the constitution to persuade all the states of the union to consent to the constitution. As such it was a document that, in a sense, replayed the greatest hits of the recent revolutionary war. In other words, to persuade states to agree to the constitution, the bill or rights stressed those issues which ranked among the leading issues behind the fighting. They were not representative of all the rights we believed in.
E) We shouldn’t bar gay rights or abortion merely because the founders may have decried it. We may believe that the founders were brilliant in terms of political science (I don’t find them brilliant; the electoral college is legally sanctioned disenfranchisement). However, the founders were not necessarily brilliant about sexuality or health and their prejudices should not bind us. For example, Thomas Jefferson wrote that homosexuals should be castrated and that black people smelled more than white people because, he imagined, that some of their urine flowed out of their sweat glands. Should such primitive and hate-filled beliefs be the unshakable compass of our nation till the day America dies.