SDP Continued: A Brief Response

I am happy to see that substantive due process, possibly the greatest legal challenge of the American legal order, has gotten such attention in this space. I understand your concerns specifically, T. More and would like to respond briefly.

In my mind, we have to separate out the powers of the state governments with the power of the federal government. The federal government is entirely a creation of the United States Constitution. In the first instance, its powers are limited to the enumerated ones. Therefore, matters which do not effect interstate commerce in a legitimate way, or touch upon historical discrimination, are generally beyond the power of Congress to act. One conception of the ownership society constrains the power of the federal government because of these limits. As more of America moves out of the sphere of public control and into the sphere of private property, I think Congress has a less colorable claim to a right to make laws. Money which is in my house, while subject to the commerce power under the sham decisions of the New Deal, is now likely to be thought of as beyond the scope of the federal government.

The character of the federal government as a place of limited powers also raises the possibility of substantive due process limits to the powers of Congress and the President. It is agreed that the People (see the preamble) and the states (see the Ratification clause) came together to grant powers under their control to the federal government. The character in which we banded together to cede power to the United States government provides important limits on the powers of Congress. In Griswold, in those parts of the opinion where Justice Douglas is not making up constitutional rights for use against the states (more on this later) he suggests that since the marital bedroom existed as an institution before the Bill of Rights or government at all, government cannot easily invade its precincts.

For the Federal constitution, this is the "basic unit of society question." If people came together in their capacity as families to give power to the federal government, then it is fair to say the federal government may not pierce the family veil, since they never had the right to do so in the first place. Substantive due process provides this guarantee, which is hinted at from other provisions of the constitution, as well as our (now deplored by the left) TRADITIONS of liberty and freedom.

So that's the federal government. A government of limited powers. But for the state governments, we have another issue altogether, which you are right to point out. The state governments retain plenary powers, or at least so much power as the various state constitutions allot to the state governments. If the people of Oklahoma have provided in their constitution that the government may make no laws regulating intimate conduct, than all must agree that the government of Oklahoma is powerless to do so, and some might even agree that the Federal courts should enforce this limitation (see Rehnquist's concurrence in Bush v. Gore for an argument as to why the Federal courts should, in T2, demand that states stick to the guarantees they made in T1).

However, absent a specific constitutional provision (or a judicial state constitutional interpretation) to the contrary, I do not see why the federal courts would use the federal due process guarantee to cabin the powers of the state governments. As a general rule, the state governments have general powers. They are the ones that Bork must be speaking about when he agrees with the dissent in Griswold, that no matter how much he like our privacy, we have to agree that we have compacted with the state that if the public interest (morals, welfare, health, or safety) demands an invasion of that privacy, we are bound grant entry to the forces of the state.

As a last matter of agreement, even though its cliche, I would like to point out the silliness of the notion of "privacy" for abortion rights or intimacy rights. While I mind it less for birth control issues, intimate conduct (by its nature), and abortion (by at least hypothesis in the debate) each deal with other people. While they may both be spheres denied to public regulation because of a mix of federal and state constitutional guarantees, they surely do not raise the same issues as regulations dealing with bodily organs (which, incidentally, can be regulated).