U.S. Supreme Court in Washington, D.C. Photo Credit: Diego M. Radzinschi/ALM

Justice Clarence Thomas, in his most recent concurring opinion, again raises the issue of whether “substantive due process” should be used in creating constitutionally protected “rights.” In that case the U.S. Supreme Court ruled that Tyson Timbs could not be forced by the state of Indiana to forfeit his $40,000 Land Rover when he was arrested for selling $400 worth of heroin.

Justices Thomas and Neil Gorsuch concurred in the result, but only because they believed that our citizens always had the “right” to be protected against “excessive punishment,” and therefore there was textual support in the Constitution for that protection. However, Thomas goes on to express the view, as he has in the past, that constitutional rights should not be created without textual support found in the Constitution. This view of “originalism” holds that judges should interpret the law as written in accordance with the meaning and understanding of the founders at the time the words were written. Originalists would hold that it is not the function of the Supreme Court, or any other court, to protect “rights” that had not been protected at the time of the adoption of the Constitution. The Constitution, according to the originalists, should be “strictly construed.”

But the Supreme Court majority in the Timbs case did not apply the “originalism/textual” formula in reaching its determination. Instead, it applied the doctrine of “substantive due process,” which allows judicial protection to certain fundamental rights even if those rights are not specifically mentioned in the Constitution. The basis for that protection is the Fourteenth Amendment “due process” clause, which prohibits the federal and state governments from depriving any person of “life, liberty, or property, without due process of law.” Once the Supreme Court determines that a certain right exists, such as the right of interracial couples to marry, that right is granted “substantive due process” protection which places those rights beyond state or government regulation or legislation.

This was the basis of Justice Thomas's objection in the “excessive punishment” Timbs case. He suggested that the misuse of “substantive due process” creates rights not envisioned by our founders and therefore not entitled to protection under the Fourteenth Amendment “due process clause.” It was this kind of judicial activism, he says, that “led to the Supreme Court's most notoriously incorrect decisions (citing Roe v. Wade and Dred Scott v. Sandford.) The likening of Roe v. Wade to Dred Scott is wrong and distorts the discussion.

After the Civil War our Constitution was amended by way of the Fourteenth Amendment to ensure the rights of newly freed slaves by providing that “no state shall deprive any person of life, liberty or property without due process of law.” The “originalists” contend, as Justice Antonin Scalia forcefully urged in several dissents, that the Fourteenth Amendment was not intended, nor should it be used, to protect rights that were nonexistent at the time the amendment was adopted.

However, the U.S. Supreme Court used that Fourteenth Amendment to develop the jurisprudential concept of “substantive due process”—to protect “rights” that were not enumerated in the Bill of Rights or were not traditionally thought of as protected constitutional rights. “Substantive due process” was held to protect an individual's rights against any governmental interference—state or federal—which the court deems to be a protected “right”—even if that “right” is not referred to in the Constitution or considered a right to be protected by our founders when they drafted the Constitution.

The jurisprudential validity of “substantive due process” came into question with the decision in Roe v. Wade. The majority opinion created, with certain limitations, the “right” of a woman to have an abortion—a woman's right that the court held was protected under the Fourteenth Amendment against any state or federal law.

The dissenters in Roe and its progeny were, like Thomas, “originalists.” After reviewing state statutes and the history of the states' outlawing of abortions, Chief Justice William Rehnquist in his dissent in Roe, noted “that the drafters (of the Constitution) did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter (abortion).” Justice Byron White added: “The Court simply fashions and announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes.”

Despite these dissents, Roe v. Wade and its doctrine of “substantive due process” became both precedence and a judicial method that the Supreme Court could use to create constitutionally protected rights. Similar rights were created to protect same-sex marriages, women's rights and other rights, over the objection of conservative members of the court who felt that these rights were never contemplated by those who wrote the Fourteenth Amendment. Whether the Fourteenth Amendment was ever intended to serve as a protection of those rights declared by the Supreme Court continues to be a matter of debate among legal scholars as well as judicial dissent.

But despite the recent assertion by Justice Thomas, and prior assertions by presidents and political leaders, the decision in Dred Scott v. Sanford, which held that blacks in America had no constitutional rights, was not a predicate for Roe v. Wade. Justice Scalia, in various dissents objecting to Roe v. Wade, made the comparison, noting (in Planned Parenthood v. Casey) that “Dred Scott … rested upon the concept of 'substantive due process' that the Court praises and employs today. Indeed, Dred Scott was 'very possibly the first application of substantive due process in the Supreme Court, the original precedent for [Roe v. Wade].'”

Chief Justice John Roberts made a similar observation in his dissenting opinion in Obergefell v. Hodges, criticizing the majority opinion for relying on moral convictions rather than a constitutional basis for expanding fundamental rights in allowing same-sex marriages. In that case, Chief Justice Roberts accused the majority of employing the example of the Dred Scott case as a “substantive due process” case by ruling in a way that went beyond the scope of the Constitution.

Again, the repeated coupling of Roe v. Wade and Dred Scott v. Sandford, as both being the product of “substantive due process,” is not only historically and jurisprudentially inaccurate, it is maliciously deceptive.

Chief Justice Roger Taney, who wrote the Dred Scott decision in 1857, like Justice Thomas and other “originalists,” believed that the intent of the founders should be followed in constitutional decision-making. Justice Taney expressed the belief that the Constitution was drafted with certain notions on the part of the founders which, at the time he wrote Dred Scott, seemed to him to be unjust. He noted: “It is difficult at this day to realize the state of public opinion in relation to that unfortunate race, which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted.”

Despite these expressed personal beliefs, Taney felt that he was duty bound to interpret the words of the Constitution, to use Justice Scalia's words: “As to what those words meant to the people who ratified the Bill of Rights or who ratified the Constitution.” Or, as Justice Taney put it: “(The Founders) spoke and acted according to the then established doctrines and principles, and in the ordinary language of the day, no one misunderstood them. The unhappy black race were separated from the white by indelible marks, and the laws long before established, and were never thought of or spoken of except as property … .”

Taney, then, did exactly what Justice Thomas and the “originalist” five-member majority in our Supreme Court have said should be done: He explored the attitudes, state statutes, literature and history of the time to accurately ascertain “what the public at the time would have understood the words” of the Constitution to mean. In other words, to determine what was the original intent of the founders. He correctly noted that the states that condoned slavery would never have approved of a Constitution which would in any way diminish their right to own slaves. Taney then properly concluded that African-Americans were not among the “people” referred to in the Constitution. The Dred Scott decision was an unmitigated disaster for the country, the Supreme Court, and worst of all, for African Americans. It was proof that a too unbending adherence to strict constructionism can end up destroying or discrediting the very document the strict constructionists would hold inviolate.

Of course, the Thirteenth and Fourteenth Amendments rendered the Dred Scott decision and its unconscionable results a nullity (although Governor Mike Huckabee recently proclaimed it is still good law); however, it should be remembered that it was written by a “strict constructionist” judge —just the kind of judge that Justice Thomas says he is and whom he admires. If Justice Taney and the majority of his colleagues had conferred certain protected rights on members of the black race, he would have done what the New York Court of Appeals did in 1860 in (Lemmon v. People) ruling that slaves brought temporarily into the state from slaveholding states were free. As it was written, however, the Dred Scott decision set the fuse for the Civil War by undoing the hard-fought compromises of 1850 and the Missouri Compromise, which had held the country together.

There are very legitimate reasons to object to the Supreme Court's use of the Fourteenth Amendment to expand and protect rights under the Constitution. Critics of the use of “substantive due process” could argue that the framers of the Constitution felt that the legislative and not the judicial branch should determine what rights should be created and protected. Those who object to Roe v. Wade have a strong argument against the Constitution's being used to protect conduct that had been criminalized in the entire English-speaking world at the time of the adoption of the Constitution. On the other hand, defenders of Roe argue that it recognizes female sexual sovereignty and protects a woman's bodily liberty from state or federal regulation under the “due process” clause of the Fourteenth Amendment. The abomination of Dred Scott should have no part in the discussion, and those who refer to it in the Roe v. Wade context, do their cause a great disservice.

Sol Wachtler, a former chief judge of the New York State Court of Appeals, is a distinguished adjunct professor at Touro College Jacob D. Fuchsberg Law Center.