Page 32 - Substantive Due Process News Today : Breaking News, Live Updates & Top Stories | Vimarsana

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 is it substantive due process analysis just another form of judicial policy making, which you've su...

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 one's children. i believe the right to travel, the right to marriage, interracial marriage.

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 try to same-sex marriage. you're familiar with that case, aren't you? >> i am.

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, i'm not in a position to comment about either my personal views or whether -- >> and i'm 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 labelled as bigots. and treated as such by government employers and schools. and the case, to nerd ou...

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 create a new fundamental right? >> the supreme court has said a case that the fundamental rights that ...