Your Rights Are Now On The Chopping Block
In a Supreme Court where nothing is sacred
The gloves have come off at the U.S. Supreme Court.
The idea of Substantive Due Process is the crux of the recent Supreme Court decision to overturn Roe V. Wade. For over a century, United States Supreme Courts have been playing a judicial game of tug-of-war over the theory.
The idea holds that the American Constitution grants us rights that are not explicitly laid out. Substantive rights are rights of substance rather than procedure.
You’re guaranteed the right to a fair trial, to representation, to face your accusers, to a jury or judge who serves as a neutral party deciding your fate—at least in theory. These days, we know that judges and juries are anything but neutral and impartial.
These are procedural rights.
Substantive rights are less tangible but arguably much more important. The right not to be discriminated against is substantive. The right to medical privacy in making decisions about reproductive healthcare is the substantive right that Roe V. Wade granted American women.
Substance and process are two heads of the same Constitutional coin that purchases our liberties.
Processes converge into the juxtaposition of substance.
It’s like the internet. From cables to code, a series of processes connect billions of devices across the globe. But the substance of the internet is in its content—blogs, websites, social media apps, the stuff those connections were designed to facilitate.
The U.S. Constitution guarantees us specific processes and rights. Some rights are explicitly laid out (as processes), and others are produced by those processes (substance). The right to free speech is a process right. It’s spelled out exactly how the Federal Government cannot infringe on your right to speak freely.
Privacy is a substantive right.
The Constitution mustn’t expressly grant the right to privacy for privacy to be implied by the Constitution. After all, what is life and liberty without due process, and what is due process if these rights don’t defend us against the often-overreaching arm of the state poking in our affairs?
Four pivotal cases based on substantive due process:
Griswold V Connecticut
Roe V Wade
Loving V Virginia
Obergefell V Hodges.
Each of these granted us substantive rights.
Griswold V Connecticut gave us the right to privacy, especially in the bedroom.
Roe V Wade expanded that right of privacy to cover women’s healthcare, including abortions.
Loving V Virginia gave us the right to marry people of a different race.
Obergefell V Hodges granted us the right to marry an individual of the same sex.
There are more, but you get the idea. We’ve taken these rights for granted. And some justices on the Supreme Court are challenging substantive due process (and substantive rights).
When the Supreme Court overturned Roe V. Wade, Justice Clarence Thomassaidthey should revisit the cases that guarantee substantive rights and eliminate them.
Thomas has believed this for a long time. He’s an originalist. Originalism states that interpretations of the U.S. Constitution should be based on what the framers intended “at the time it was adopted.”
How an understanding of the founders’ “intentions” can be deduced is nebulous.
It’s reminiscent of those who’ve pretended throughout the centuries that they could speak for God.
Every interpretation requires a framework, as Justice Thomas said himself. It makes you wonder what framework our Supreme Court justices might be interpreting the law through.
With Clarence Thomas, we already know.
According to Jeff Cohen, retired Director and Associate Professor of Journalism at Ithaca College, Clarence Thomas didn’t consume any media as he didn’t want it to influence his views (he says he doesn’t trust it). Yet, he recorded every episode of Rush Limbaugh’s radio show that he could and would listen to all three hours of it.
Thomas has been a die-hard fan and close friend of Rush Limbaugh (true story) all along. Thomas even hosted Limbaugh’s wedding to his third wife (also true).
Rush Limbaugh wasn’t your ordinary right-wing talk show host. He was an extremist who spread boundless disinformation. He was an unashamed racist who smeared President Obama as a “Muslim” and said he turned NASA into “the Muslim Outreach Department.”
The man spent his career saying smoking does not cause cancer and that nicotine is not addictive. He died of cancer from smoking.
Thomas has been open about his partisan outlook in the past. In his memoir, he said:
I’d grown up fearing the lynch mobs of the Ku Klux Klan; as an adult I was starting to wonder if I’d been afraid of the wrong white people all along — where I was being pursued not by bigots in white robes, but by left-wing zealots draped in flowing sanctimony.
Yes, he said that.
This is a huge problem. On the one hand, Thomas says judges are supposed to be impartial. But on the other hand, he shows us repeatedly that he’s anything but impartial.
Trump merely said aloud what those tucked behind black robes on the land's highest court have been quietly thinking all along.
There have been right-wing extremists on the Supreme Court this whole time, and now they’re a majority.
It feels like we’re all just waking up to the fact that the crazy people may have been driving the national bus all along, and we awoke from our slumber to find we’re headed full speed straight off a cliff.
That cliff is a world where the rights we’ve held near and dear for more than half of a century are in question. Nobody knows which will be next on the chopping block, and we’re all holding our collective breath in a state of unease as we wait to see what overreach will prohibit us from living our lives.
Roe V. Wade was a landmark case for women’s reproductive rights, but the overturning of Roe V. Wade is far more ramifying.
It’s evident to anyone with eyes that a Supreme Court supported by an extreme minority of Americans is playing a game of judicial Jenga with our rights. They’ve pulled one of the most essential blocks out of the tower, and now we sit and wait, white-knuckled and unnerved, to see which block of rights will be removed next.
Perhaps the whole tower will fall after the justices decide there’s no use for many of the indispensable rights we Americans have come to expect to be granted to us and no longer grant our consent to the entirety of the U.S. Government.
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Some books that I highly recommend checking out:
Wild Connection: What Animal Courtship and Mating Teaches Us about Human Relationships by Jennifer L. Verdolin
The Red Queen: Sex and the Evolution of Human Nature by Matt Ridley
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