By Kristine Kirchner
Arizona Daily Wildcat
October 17, 1997

Argument against substantive due process illogical


The commentary, "The invention of substantive due process," argued that the Supreme Court invented the notion of substantive due process to confer upon the people's rights the court deemed fundamental, and to strike down state laws they do not like. Purportedly, the Ninth Amendment suffices in providing protection from unjust government intervention, and the Court has usurped power from Congress by invoking the doctrine of substantive due process.

The proposed solution is to allow the legislators, as honest and avid representatives of the people, to decide what rights are fundamental and pass Amendments accordingly.

This solution is based on the naive premise that the legislators are true representatives of the people. Admittedly, these legislators are I office as a result of our democratic process. But to what extent to the decisions of legislators represent the will of the people, rather than the will of the pocketbook? A jaded view perhaps, but certainly realistic. Had the courts passed on the abortion issue, leaving it up to the legislature to amend the Constitution, the "back alley" abortion, rather than being virtually obsolete, would be an alarming epidemic. A reluctance of the legislature to pass an amendment conferring the right to have an abortion would not represent the majoritarian will of people, but instead, the will of wealthy and powerful conservative activists groups. For a member of Congress to support a Constitutional amendment giving women the right to have an abortion would be political suicide.

Though it was argued that the Court usurped power from Congress, I would bet that members of Congress, during their prayer breakfast, give thanks that they are not responsible for tackling the issue. Regardless of what members of congress believe to be the true will of the people, the Court's decision in Roe v. Wade has made it safe for them to support whatever position will facilitate their ultimate goal, which is, of course, re-election.

The commentary argued that in addition to bringing about such evils as Roe v. Wade, the expansive view of substantive due process has opened "the door for a whole 'Pandora's' box of Constitutional interpretations of all sorts," and has given the Court license to strike down state laws that they do not like.

An example of a law disfavored by the Court was a Connecticut statute making it a criminal offense for married persons to use contraceptives. Had the Court not found the right of privacy and applied it to the states through the Fourteenth Amendment, it might still be a crime for married couples in Connecticut to use contraceptives. But I guess that was the point. The commentary argued that the right of privacy is not explicit in the Constitution and should not be found or construed by the Court.

In supporting the idea that the Supreme Court has not only the right, but also the obligation to make these decisions, I take the position of the late Chief Justice John Marshall who said the Constitution is "intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs."

Kristine Kirchner
Second year law student


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