DEMONIZING JUDGES

Robert Alt explains in an excellent article on National Review Online how the Left, and it's paper of record The New York Times, demonizes judges who are concerned with upholding principles of Federalism. Alt details how Federalism is merely a set of rules that is neutral as to outcome...they cut against Conservatives who want Congress to outlaw partial-birth abortion and the Left who want to ban possession of guns.

Another example of a set of rules that works both ways, which conservatives have not used to attack left-leaning judges, is called "substantive due process." This is a way of interpreting the due process clauses of the Fifth and Fourteenth Amendment to mean more than the requirement that lawful procedures exist and are followed before the government can deprive someone of property or life. After all, government can constitutionally kill you as long as it follows a due process (crime, trial, witnesses, jury, appeals).

But "substantive due process" says that the protections are not just procedural, but that there are actual, substantive rights inherent in the due process clause. In other words, it's not about procedure at all, but some rights can't be taken away even with due process. While Congress can't take your life without due process of law, there are other rights it can't take at all. If you think it is strange that an enumerated right, such as life, can be taken away with proper procedures, but other rights cannot be taken regardless of the procedure, then you aren't alone.

One of the most famous substantive due process cases was Dred Scott v. Sanford, in which the Supreme Court found a substantive due process right to ownership of slaves. The Court found that Illinois couldn't provide a procedure that would free a slave owned by someone in a slave State. And, of course, that case has been reviled ever since.

But substantive due process was applied in a case lauded by the Left today. Roe v. Wade, in which the Supreme Court found a substantive right to abortion, which cannot be taken away by some duly legislated procedure. Yes, rules cut both ways, and only the intellectually dishonest, such as the editorial board of The New York Times, would characterize support for such neutral rules as support or opposition for the policy positions that may be effected by application of those rules.