Page 16 - Substantive Due Process News Today

That right. because we come of the nine people sitting on the supreme court, have decided that it shall be the law of the land and no legislator can pass any law that conflicts with that. what other unenumerated rights are out there? or can you not say? >> senator, i cannot say. it is a hypothetical that i am not in a position to comment on. the rights that the supreme court has recognized as substantive due process rights are established in its case law. >> your honor, this is not a trick quest...

The right to an abortion. contraception. >> treating of slaves as chattel property? >> i dont quite remember the basis for the dred scott opinion, but i will trust you that -- >> the fact is, is it not, that you can use substantive due process to justify basically any result. >> well, the court -- >> whether its conservative or liberal, libertarian or conservative, whatever you would like to call it. its just a mode of analysis by the court that allows the court to substitute its opinion for the...

The right to an abortion. contraception. >> treating the slaves as chattal property? >> i dont quite remember the basis for the dread scott opinion but ill trust you that -- >> the fact is, is it not, that you can use substantive due process to justify any result, whether conservative, liberal, libertarian, whatever you would like to call, its a mode of analysis by the court that allows the court to substitute its opinion for the elective representatives of the people and -- would you agree? >> ...

Judge ketanji brown jackson found her second day of her confirmation hearing. this is "outnumbered." hello, everyone, im kayleigh mcenany along with my hosts, emily compagno. also joining us or julie banderas, jonathan turley. we just heard from senator horn, senator whitehouse been the most interesting effective portion i think i heard was from senator cornyn when he was talking about substantive due process buried roe v. wade was founded on any unenumerated right to privacy that was grounded i...

To do that? if its not mentioned in the constitution, where does the right of the court to substitute its views for that of the elected representatives of the people, where does that come from? >> the court has interpreted the 14th amendment to include this component. the unenumerated right to substantive due process and the court has said that the kinds of things that qualify are implicit in the concept of ordered liberty or deeply rooted in our nations history and tradition. those are standard...

By legislatures who are answerable to the electorate, rather than a majority of the supreme court. finally he said -- finally for purpose of my question, he said the adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts, which i believe justice black that is, and am constrained to say will be bad for the courts and worse for the country. justice jackson, why...

Process under guys of interpreting the constitution? >> well, senator, the justices have interpreted the due process clause of the 14th amendment to include a substantive provision, the rights to due process. they have interpreted that to mean not just procedural rights relative to government action but also the protection of certain personal rights related to intimacy and autonomy. they including thes like the right to rear ones children. i believe the right to travel, the right to marriage, in...

That adopts the substantive due process argument to determine the constitutionality of various laws. perhaps the most recent decision by the supreme court that was a dramatic departure from previous laws in the states and in the nation was the overfeld case which dealt with same-sex marriage. here we are -- at the time, 234 years after the constitution had been ratified. 135 years since the 14th amendment had been ratified that the supreme court articulated a new fundamental right, which is a tr...

Vilified as unwilling to assent to this new orthodoxy? >> so, senator, i understand hath concern and because there are cases that are addressing these sorts of issues, im not in a position to comment about either my personal views or whether -- >> and im not asking you to. >> justice alito, in the oberfell case says i assume those who cling to the old believes will be able to whisper their thoughts in the recesses of their homes. but if they repeat those views in public, they will risk being lab...

The goal is to interpret the texas a means of understanding and reflecting what congress intended. and of course, in statutory interpretation, if congress decides that the court has gotten it wrong, then as has happened many times, congress comes back and clarifies and tells court, no, this is what the statute means. >> i want to go back to an exchange you had with senator co cornyn. substantive due process is a document that allows courts to create new fundamental rights. what is the test to cr...