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Posted by7 months ago

Justice Antonin Scalia talks about Roe v. Wade. (w/ his disagreement on substantive due process)

95% Upvoted
level 1
Op · 7 mo. ago · edited 7 mo. ago

So here's my understanding of what Scalia is saying.

The pro-abortion argument relies on this section of the 5th or 14th Amendment:

  1. "; nor shall any state deprive any person of life, liberty, or property, without due process of law;" this section is what is known as "Due Process Clause"

  2. The court declared: We accept that Due Process is required when the state is passing a law to deprive any person of life, liberty, or property. HOWEVER, "Some Liberties" are SO important that NO process is good enough to take them away. This is what the court called "substantive due process".

  3. So the next question was: OK, What's an example of "Some Liberties" that require this "Never good enough" denial of due process? Abortion.

level 2

What is the due process to deprive someone of their first amendment?

I know it can of the second, but can it of the 1st, or maybe 5th?

level 1

Anyone who knows the slightest about constitutional law should be aware that Roe V Wade (with its emanations and penumbra) is a crap decision that has no regards for the separation of powers. The court is not a legislature and the constitution is silent on abortion. That means that the 10th ammendment should kick in. If you want, read John Hart Ely's (who supported the outcome of Roe) critic of Roe. Roe also froze in place each respective camp on abortion so that the United States finds itself in the weirdest of positions: it has some of the staunchest anti abortion advocates; and it also has a system in which most of the reasonable abortion laws in European countries would be unconstitional under Roe and Casey. In fact, the law in challenge under Dobbs is less restrictive on access to abortion than Portuguese law, for example.