How Judge Shelby got the 14th Amendment wrong

This post is a transcript of a 4-minute weekly radio commentary aired on several Utah radio stations.

scalesThe 14th Amendment to the United States Constitution has been at the epicenter of most controversial court decisions over the past 40 years. Few people understand it even as many people invoke ideas such as “due process” and “equal protection” in support of their causes. The recent Judge Shelby decision on same-sex marriage in Utah is just one more example.

There are three main schools of thought regarding the 14th Amendment. The first school of thought, represented by Supreme Court Justice Anthony Scalia, is “original intent.” This school of thought holds that the 14th Amendment was adopted in 1868 with specific application addressing slavery – and that terms such as due process and equal protection were intended at that time to be limited to legal proceedings such as contracts and court cases.

This school of thought relies heavily on the intent of the legislative bodies at the time laws were adopted. It looks to the meaning and intent of the sponsors of the laws. Permitting judges to interpret those legislative purposes and meanings would be a violation of judicial jurisdiction. In other words, this school of thought holds that judges shall not legislate from the bench.

A second school of thought – a modern progressive school – holds that terms such as due process and equal protection in the 14th Amendment have substantive meaning not simply procedural application. But this progressive school takes it a step further by using its own ideologies to define the substantive meaning. Supreme Court Justice Anthony Kennedy and our own Judge Shelby think in these terms. This school of thought is perfectly comfortable, indeed legally and morally justified in their own minds, to legislate from the bench and substitute their own personal morals for the voice of the people.

They say, “Look, society got slavery wrong. It got abortion wrong. And now it got same-sex marriage wrong – we’re simply fixing what society got wrong.” And then we get government by judiciary.

There’s a third school of thought that also believes in substantive due process but is not driven by ideology.

The 14th Amendment was necessary precisely because life, liberty and property have substantive meaning. In other words, it wasn’t enough for blacks to be told they had rights of life, liberty and property – they deserved those rights substantively.

I’m proud to say that Utah’s George Sutherland was a pioneer of substantive due process that requires courts to give substantive meaning to our rights. He used substantive due process to kill most of FDR’s New Deal proposals to preserve property rights. He and his peers also used substantive due process to protect marriage and family as fundamental rights.

This third school of thought differs from the second one I mentioned in that this third school looks at human dignity and what it means to be a human being. It is steeped in natural law. As such, it is very conservative traditionally – like Justice Clarence Thomas.

It is very unlike Justice Kennedy and Judge Shelby. Those justices reject natural law and simply invent rights for people. And so, in the same-sex marriage case, Shelby invokes substantive due process but without any substance other than his own personal opinions. He continues the progressive tradition of championing the virtues of “consenting adults” while kicking to the curb any notion of the common good or a state interest that transcends selfish individualism.

Shelby got the 14th Amendment wrong. He sees it as his personal ticket to legislate from the bench to shape the world to his own view. That’s why his decision is irresponsible. And why the Supreme Court will review it.

For Sutherland Institute, I’m Paul Mero. Thanks for listening.

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