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Insubstantial Due Process

Justice Thomas’s Dobbs concurrence argues that the Court should abandon its substantive-due-process jurisprudence.

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The landmark decision released by the Supreme Court last week in Dobbs v. Jackson Women’s Health corrects a moral and constitutional travesty. The Court concluded in its opinion: “Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.” For decades, even prominent legal scholars on the left have admitted that Roe is bad law. The falsehood that abortion is a right enshrined in the Constitution has finally come to an end with Dobbs.

But this is not the end of the conversation about the legal reasoning in Dobbs. As Justice Thomas says in his concurring opinion, the Court has correctly applied the rules of its substantive due process jurisprudence to find there is no substantive due process right to abortion. He explains that the Court has long analyzed whether a substantive-due-process right exists under the Fourteenth Amendment by determining whether the right is “deeply rooted in this Nation’s history and tradition [or] implicit in the concept of ordered liberty.” The Dobbs Court, he says, is correct that there was no history or tradition in America at the time the Fourteenth Amendment was ratified that justifies a right to abortion. But, Justice Thomas goes on, the Court should not be using that substantive-due-process analysis at all.


For decades, the Court has been using the Due Process Clause of the Fourteenth Amendment to declare fundamental rights that are not explicitly written in the Constitution. The relevant clause requires that no state shall “deprive any person of life, liberty, or property, without due process of law.” Looking at the history of due-process rights, Justice Thomas points out that due process means simply that a certain process is due to citizens before their rights to life, liberty, or property can be taken away. For example, if the government intends to deprive a criminal of life or liberty, or intends to confiscate a person’s property under a certain law, the person is constitutionally entitled to due process. This usually means reasonable notice of the government’s intention, and a fair hearing on the merits of the government’s claim. The Courts have turned “due process” into something far beyond the process that a person is due.

Why does this matter? First of all, proponents of originalist legal theory want to interpret the text correctly, period. The goal is not simply to get “the right outcome,” but to make sure judges are doing their work properly and interpreting the law before them according to its meaning. By accepting the substantive-due-process framework created through many decades of precedent, the majority opinion in Dobbs is accepting an incorrect reading of the Fourteenth Amendment. As a matter of principle, judges should not do that. One can argue that precedent has its place and that it is not expedient to unwind a long-established and well-used precedent. But if one is committed to the idea that judges must be restrained to interpret the law as written without weighing the potential practical effects of their judgments, then Justice Thomas is correct and the concept of substantive due process should be eliminated from American law.

Besides the fact that it lacks a basis in the Constitution, Justice Thomas points to three reasons substantive due process is “particularly dangerous.” First, the doctrine exalts judges above the democratically elected branches of government by allowing judges to use the Due Process Clause to divine new rights rather than for the limited task of ensuring the people are given due process (notice and a fair hearing). Abortion is only one of many “rights” the Supreme Court has found hidden within the Due Process Clause. Second, the creation of new fundamental rights complicates and distorts other areas of constitutional law. For example, once a new fundamental right is found for one class of persons, the Court must determine under the Equal Protection Clause if other classes of persons are entitled to the right. Third, the creation of rights not found explicitly in the Constitution is dangerous ground with a tradition of frightful results. Justice Thomas explains that in the Dred Scott case, “the Court invoked a species of substantive due process to announce that Congress was powerless to emancipate slaves brought into the federal territories.” 

This is not to say that there is no such thing as an unenumerated right. Surely the people have rights that are not explicitly written in the Constitution. The Ninth Amendment says this explicitly: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The point is not that there are no unenumerated rights, but that those rights clearly do not come from the Due Process Clause. As we celebrate the Dobbs ruling, conservatives ought to study and take seriously Justice Thomas’s concurring opinion. 

Thomas’s clear prose points out both the theoretical and practical problems of continuing to accept grave errors in constitutional interpretation. Precedent and an unwillingness to upset the tangled web the Court has woven should not overrule the duty of judges to interpret the law faithfully. As we look with hope on a Court finally willing to make bold, honest rulings regardless of the political consequences (see Dobbs, Carson v. Makin, Bruen, and Kennedy v. Bremerton School District), perhaps conservative originalists can even dare to hope that the Court will be bold enough to unwind doctrines such as substantive due process that have caused such abuses of judicial power.