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David Pittelli's avatar

Pierce v. Society of Sisters is based on a reasonable, arguably compelling, reading of the Due Process Clause (as one should perhaps expect of a unanimous ruling).

If the state wants to forcibly hold you (e.g., in a building we call a prison), you have the right to due process before a court.

Pierce v. Society of Sisters, 268 U.S. 510 (1925):

"The fundamental theory of liberty upon which all governments of this Union rest excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only."

Thus, before the state can forcibly hold your child (whether in a building that we call a prison, or one we call a school), you have the right to due process before a court. But children broadly aren't committing some crime for which a court will allow the state to forcibly hold the child.

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Julio Gruñón's avatar

It is always interesting to discover someone else discovering the fallacy of judicial activism. I did so when I took a class in university as an undergraduate taught by a leftist lawyer (and defender of judicial activism) titled "Philosophy and Law: The Bill of Rights." We read many, many of the celebrated Bill-of-Rights-related opinions of the Supreme Court up to and including Roe and Doe and some afterward. Even though I was being told "this is good" by the professor, I could read the words on the pages and realize "this is a not even close to logically sound" in my head.

I went into the class thinking "the U.S. Constitution enshrines a right to abortion" because that is what I heard from the pop culture, and I came out thinking the belief that the Constitution enshrines a right to abortion is complete nonsense. I suppose the class backfired on the professor in my case.

What I've found afterward, especially in all the hullabaloo after Dobbs, is that many (most?) of the most virulent protesters and advocates of Roe and Doe haven't ever read Roe and Doe. It's precisely like you say, they like the results and don't care at all about the process that led to the results.

I am of the school of thought that Roe and Doe (and similar decisions) are a big part of why the U.S. government is so dysfunctional today. Congress is supposed to be where laws are made precisely because that is where (ideally) many different viewpoints are presented, members of Congress can synthesize and compromise and horse-trade to get to a middle ground position, and members of Congress can be held accountable for their legislation in elections.

Roe and Doe just gave one side of a debate a complete win without any that. This has led to a winner-takes-all mentality in politics that we see ruin our system of government today. Congressional dysfunction has a long history, so it's a bit of a chicken and an egg scenario, but there wasn't legislative dysfunction around abortion. Nearly all fifty state legislatures debated abortion in the 1960s, and it was being legislated in a way consistent with public opinion. So perhaps Roe and Doe didn't start government dysfunction, but it certainly accelerated it.

In addition to the substantive due process doctrine that you write about in this article, there is also the selective fourteenth amendment incorporation doctrine, which interprets the fourteenth amendment as applying the first ten amendments to the laws of the several states, but not always -- only whenever federal judges want to apply them. Even if that were the case, which no one believed when the fourteenth amendment was passed and for several decades thereafter, article 5 of the fourteenth amendment clearly states Congress shall have the power to enforce the amendment, not unelected federal judges.

Finally, it's worth considering why Roe and Doe happened. As I've written about, it happened precisely because abortion advocates didn't win public opinion in the 1960s, and so resorted to judicial activism in the 1970s: https://borncurious.blog/p/abortion-was-the-defund-the-police?r=3awb7t

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