A few years back, during the Trump Administration, the Washington Post adopted the front page banner, “Democracy Dies in Darkness.” I was never entirely clear on what that was supposed to mean, although I’m pretty sure it was a dig at Trump, who, according the the Post, kept the country in the dark by constant lying and exaggerating. (Indeed, the Post kept a running tally on what it regarded as Trump’s lies. When the administration ended, the tally stood at over 30,000).
The Supreme Court’s recent Dobbs opinion overruling Roe and Casey brought the Post’s banner to mind. The pro-abortion forces with which the Post is eagerly aligned are now themselves trying to keep the country in the dark, or at least the heavy shade. They want to pretend that the case was about whether women will be enslaved as reproductive vessels, or whether the Court has cashiered a “fundamental right” around which society has organized itself for 50 years.
It was about neither of those things. The case was about whether the Constitution includes a right to abortion.
It doesn’t. You don’t have to be a lawyer or a judge to know this. Indeed, you don’t have to be much out of tenth grade. All you have to do is read it. Neither abortion nor anything that a reasonable mind could translate to mean abortion is in there.
Since abortion is not mentioned in the Constitution, the question becomes which arm of government has the power to regulate it. The Dobbs majority said the elected branches do: If a given subject matter is not a part of the Constitution, the judiciary’s role in setting its basic parameters is over, and the people get to decide through the leaders they elect and the laws they make. The Dobbs minority said, no, the federal judiciary should continue to make the rules, as it has done (in a necessarily awkward and ad hoc way) since Roe.
The Left’s explosion over the last few days has been something to behold, even if predictable. The iconic Roe was to the Left’s stranglehold on culture what the iconic Miranda is to its stranglehold on criminal law. (More of that in a moment). Roe’s demise is not to be condoned.
And what, exactly and precisely, is the Left mad about? It’s this and nothing more: That instead of institutions it controls getting to decide a very important issue, you get to decide it. You can vote in your state’s elections about whether abortion should be banned, or banned often but not always, or banned only in unusual circumstances, or not banned at all. And if your side comes out with the most votes, it gets to set the rules.
Oh, the horror! You get to decide for yourself! Gads, what’s next? That you can decide whether your state has capital punishment? Whether pot should be legal or not? Whether the age of consent should be 18 or 16 or 14?
As many scholars more learned than I have written, progressives for at least a century have been waging war against the idea that you get to decide for yourself (or democratic self-government as it’s more formally known), and the Constitution’s robust embrace of that idea. The Constitution is a spare charter. As Justice Scalia used to observe, it says what it says and doesn’t say what it doesn’t say. There are lots and lots of things it doesn’t say, because the Framers — having recently been subjects of royalty rather than citizens — wanted the people to be able to set their own course as time went on and circumstances changed.
The successor royalty — our elites in law and academia — have never been comfortable with the notion that the people ultimately set the rules, and have been working for more than 100 years to engineer the law so that one area of governance, and then the next and the next, are actually, even if only invisibly, part of the Constitution and thus outside the purview of ordinary political process. The major vehicle by which the engineering gets done is the doctrine of “substantive due process.” The idea is that some rights, although not mentioned in haec verba in the Constitution, are so deeply embedded in our traditions of “ordered liberty” that they’re in the Constitution anyway, and therefore take precedence over mere legislation.
It is not my purpose here to delve deeply into the giddy, subversive mischief of substantive due process. For that, see Justice Thomas’s concurrence in Dobbs and the authorities he cites. It is my lesser ambition to give a more cracker barrel assessment of what it’s actually about.
Which in a nutshell is this: the elites’ certainty that the rules that emerge from normal democratic processes just aren’t that good, and indeed are a little smelly; and that therefore we should defer, or be forced to defer, to them.
Hence back to Miranda, a substantive due process decision if ever there was one (although I’ve seldom seen it referred to as such). Let me explain.
The Constitution has a short, simple rule about confessions. A person cannot be compelled to be a witness against himself. If his custodial statement is involuntary, the government can’t use it against him. End of story.
So how did we get from there to the famous, Supreme Court-mandated litany of detailed warnings — that the suspect must be told that he can remain silent, anything he says can be used against him, he’s entitled to have a lawyer present with him during questioning, and if he wants a lawyer but can’t afford one, one will be provided for him.
Question: What part of the Constitution specifies those warnings or says that, without them, the suspect’s statement is automatically presumed to be compelled and thus inadmissible?
Answer: None. It doesn’t exist. And if a point be made of it, it’s absurd. If I, a lawyer and law professor for 40-odd years, get arrested tomorrow for being an international jewel thief, should my statements automatically be presumed compelled and inadmissible if I don’t get warnings I’ve been writing about for decades?
It’s ridiculous. And its ridiculousness was highlighted in the Miranda-related case of Vega v. Tekoh, decided the day before Dobbs was handed down and written, not coincidentally, by Justice Alito.
So how did the requirement of Miranda warnings find its way under the constitutional tent? It’s not because they’re actually there. It’s because the Warren Court thought existing police interrogations were too rough and callous and a More Refined View — theirs — was needed. So they stamped, “Made in Constitutionville” on it and that was that.
The democratic process is messy and long, and its results not uniformly wonderful, see, e.g., Joe Biden. But the Constitution’s basic premise — with narrow, specific and enumerated exceptions — is that we get to decide for ourselves. The elites who have operated in law principally through the legerdemain of substantive due process — the polite name for judicial imperialism — aren’t buying it. They didn’t in Miranda and they didn’t in Roe. In truth, they have never bought it.
The real sin of Dobbs is not that, in some states, there will be more rigid restrictions on abortion. Bad as it is in their view, that might be forgiven. The real sin is that ordinary people, through normal electoral processes, will be able to supplant The Policy Preferences of the Elite with their own. Our masters are not used to that, and they are not amused. We’ll need to buckle up to withstand the coming fury.
I agree with most everything here, except I think the constitutional right against self-incrimination is procedural, not substantive, due process, since it regulates testimonial evidence. I agree that the Miranda Warning is hard to defend, since the straight-jacket requirements it imposes are legislative, not judicial, requirements.
1. "Democracy Dies in Darkness" was nothing but a dig at Trump. It turned out to be a pledge, as the Post, along with the Times, kept the country in the dark about the covert attempt by Obama et al. to subvert Trump's presidency. 2. I'd improve on Scalia: The Constitution says what it wants to say and doesn't say what it doesn't want to say. 3. Miranda treats suspects and defendants as children, requiring their acknowledgment that they received (and hence understood) the warnings. Contrast the US with Canada (and probably the UK): It has cautions, which the police are required to administer, but there's no requirement that the defendant acknowledge in writing.