Justice Thomas is eyeing “substantive due process” which he refers to as “legal fiction.”
If you’re unfamiliar, substantive due process is defined as
a principle in United States constitutional law that allows courts to establish and protect certain fundamental rights from government interference, even if procedural protections are present or the rights are unenumerated (not specifically mentioned) elsewhere in the US Constitution.
So anything not specifically enumerated would lack any constitutional protections.
Gay marriage
Trans rights
Reproductive rights
Etc…
Would be revolutionary. And constitutional in my opinion.
Because it’s an irrelevant legal issue that is being drummed up by the media.
While these and similar critics may have scored a mundane debater’s point on the broader issue of picking and choosing one’s preferred constitutional rights in a highly generalized sense, their attacks generally ignore a key and crucial distinction made by Thomas: the interracial marriage case to which the critics point — Loving v. Virginia(1967) — is based on an entirely separate clause of the Constitution than the cases Thomas said should be overturned.
That’s probably why Thomas didn’t include interracial marriage in the list of rights he envisions on the constitutional law chopping block. The justice perceives a clear and precise separation between rights that arise from separate clauses of the Constitution. Most of Thomas’s critics are blurring that line without recognizing or refuting Thomas’s logic.
