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Substantive Due Process, Dred Scott v. Sandford, and Roe v. Wade
by J. Martin Keeling
26 January 2003 

To understand the absurdity of Roe v. Wade, one must understand due process and its illegitimate, once-discredited offshoot, substantive due process.

Thirty years and 40 million abortions later, our country continues to struggle with Roe v. Wade. Though people of good conscience can disagree on the morality of abortion, the same cannot be said of Roe, which held that the right to an abortion was guaranteed by the Constitution. Only in Alice in Wonderland could such a preposterous conclusion be justified. Or in a lawyer’s mind. To understand the absurdity of Roe v. Wade, one must understand due process and its illegitimate, once-discredited offshoot, substantive due process.

As early as 1354, an English statute provided that no one should be put out of his home or put to death without “due process of law.” The Fifth Amendment to the United States Constitution, ratified in 1789, proscribes the federal government from denying an individual “due process of law.” The Fourteenth Amendment, ratified in 1868, extends that same restriction to the state governments. So what is “due process?” Alexander Hamilton, addressing the New York Assembly in 1787, stated that the “words ‘due process’ have a precise technical meaning, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of the legislature.” In other words, it is the failure to follow a statute that violates due process; a statute, any statute, cannot, by definition, deny due process. That is where stood the understanding of due process stood for nearly 500 years.

Whereas today abortion is the most emotional issue of the day, at the end of 1856, it was slavery. Most people, of course, found the practice unsettling, but were content to just leave things be. A small minority of rabble-rousers, the abolitionists, however, would just not leave well enough alone. In fact, those troublemakers, just two years earlier, had gone so far as to form their own political party and had even run a candidate in the 1856 presidential election who received nearly one-third of the vote. These upstarts, calling themselves Republicans, were going to destroy the republic, with all their caterwauling for the lowly Negro. Violence between pro- and anti-slavery forces, particularly in “Bleeding Kansas,” were beginning to become a real problem. Who would save the United States of America?

The Supreme Court would. In late 1856, it heard the case of Dred Scott v. Sandford. Scott was a slave who sued for his freedom upon his master’s death. Scott’s master, a major in the army, had taken Scott to Illinois, a free state, and Wisconsin Territory, where Congress had forbidden slavery under the Missouri Compromise of 1820. Scott argued that once he had touched free soil, he was forever free. The Court, in early 1857, held that Scott, as a black man, could not be a citizen and, hence, had no standing to sue in federal court. The Court, of course, could have stopped there, but decided to resolve the issue of slavery once and for all, thereby saving democracy from itself.

It seemed that the Missouri Compromise, which had stood for thirty-seven years, was unconstitutional. Congress could not restrict slavery anywhere. Why? Because by doing so, Congress had denied slaveholders “due process of law.” That’s the magic of substantive due process.

Absurd? Perhaps. But you see, the Supreme Court had taken it upon itself to save the country. They would remove the issue of slavery from the political arena and the foolish whims of democratically-elected leaders. They would also foreclose any peaceful solution to the issue. Half a million men would die because of the Supreme Court.

Substantive due process would fall into disrepute for many years. In the early twentieth century it would make a brief comeback, with the Court striking down labor laws for denying laborers (whom the laws were meant to protect) their due-process rights. President Franklin Roosevelt’s threats to pack the Court, coupled with the generally socialist mood in the country during the Great Depression, quickly brought the Court into line. The monster would have to go into hibernation, waiting for a new generation of activists to revive it.

Enter the 60’s generation. It turned out that free love had some nasty consequences. Some state legislatures, however, were not in tune with the progressive mood of the time. The reactionary Connecticut legislature, for example, deigned to forbid the sale of contraceptives. The Supreme Court would tell us in 1965 that the statute violated the due-process rights of married couples. In 1972, we would learn that unmarried persons also had a constitutional right to contraception. And of course, in 1973, the jewel in the crown, Roe v. Wade.

Both Roe and Dred Scott were decided 7-2. I will not belabor other parallels. Abortion proponents always tell us how the vast majority of Americans share their position. Why then, do they fear so greatly Roe v. Wade being overruled? Are they perhaps no so confident of Americans’ attitudes towards abortion? Or of their moral position? The fact of the matter is that they know what everybody knows- liberals can use the federal courts to impose their agenda, whereas legislatures never would. One day the people, through their elected representatives will take their power back from the unaccountable courts.

J. Martin Keeling is an attorney and writer who resides in Katy, Texas. He can be contacted at [email protected]