"Liberty" The 14th Amendment, and the Supreme Court

The supreme court has largely been able to dictate the direction of the country from the bench. Contrary to common opinion, this is because they know what is in the constitution.

People see the government coming down on one side of a controversial issue, and 99.99% of the time, the people who disagree on emotional or moral grounds with the court will also disagree on constitutional grounds. This is strange. The law of the land is the "Sola scriptura" of the court. These scribbles are not subject to the moral whims of any individual, but in nearly everyone's mind, the two are coextensive and universally compatible.

Hence, pro-life people always think that Roe V Wade was not based on the constitution, whereas pro-choicers can't imagine reading the constitution any other way. The LGBTQ(etc.) community thinks that the right of a man to marry a man is all but spelled out in the constitution, whereas anyone who opposes gay marriage can't imagine finding any legitimate grounds for the legalization of the practice in the same source. Similarly, LBTQ+ can't fathom the notion that anyone could read the constitution after desegregation and find any grounds for allowing a baker to refuse service to a gay man for his wedding. The list goes on. Pick any decision, and you'll find this born out: people always see what they want to see.

Hey, I totally see why conservatives don't want gay marriage, contraception and abortion legal anywhere. But regardless of what position you take, you must be willing to admit that the arguments of the SCOTUS for these cases are based entirely on the constitution. Roe V Wade was argued mainly from the Due Process Clause of the 14th Amendment. Obergefell V Hodges (the big gay marriage decision) was argued mainly from the Equal Protection, (which happens to be the adjacent clause in the 14th). Griswold V Connecticut? Well, that was argued again, through the 14th.

Now your average pro-life and pro-marriage American would stop me right there saying, "Show me where the 14th Amendment uses the word 'abortion' or 'marriage', and then we'll talk about how it doesn't follow from the constitution." This is the sort of person that, when faced with a SCOTUS decision that he doesn't like, will accuse the court of legislating from the bench, or he will accuse the court of adding words to the constitution, of offering dictionary definitions instead of legal applications, et cetera. (Sound familiar?) For example, as the sometimes-rather-annoying-and-grossly-overrated-blogger Matt Walsh so aptly put it, "There isn’t even a pretense of constitutional interpretation anymore." (See this post.) Now I highly doubt that Matt Walsh read the majority opinion, and if he already did, he has serious comprehension issues, because the argument for the decision was all about the constitution. (The syllabus in question is available here, by the way.) Fact is, the 14th amendment makes every liberty whatever into a qualified constitutional right; the 9th guards against thinking that all of the enforceable rights are spelled out in the constitution. It doesn't matter that abortion, contraception, gay marriage, etc. aren't explicitly contained in the constitution. They can be protected by the constitution anyways.

I'll go ahead and give you an oversimplified version of these arguments... The court sees, "[No State shall] deprive any person of life, liberty, or property, without due process of law," they look at an instance and see any liberty (or any situation where they say someone has a "compelling interest") that a person is deprived of without a criminal investigation, and then voila! They've got a legal basis for telling a state that their law is unconstitutional. Let's say someone wants to have an abortion... The abortion is a compelling interest ergo it is also a  liberty, but no liberty can be taken away without due process. Some man wants to marry another man? No problem! Personal autonomy requires that individuals get to marry whomsoever they choose, and personal autonomy is a compelling interest, ergo it also is a liberty and a constitutional right. See how this works?

I'm not going to get into whether the arguments actually follow right now; that's a topic for another day. It is also undeniably true that this amendment was passed in one of the most imprudent and un-American fashions imaginable. America is founded on the principle that everyone should get a say in government, and the notion that no laws should be forced on anyone unless they are represented in the process of making that law. Our ancestors fought for this with principle their lives, and their descendants went and forced their cousins AT GUNPOINT to sign several hurriedly-written and under-staffed amendments to the constitution. In hindsight we can see that, intentional or not, one of these rifle amendments brought the whole governmental structure apart from the country's founding principles. Now rights are decided neither by the people, nor the states. Rights are not individually enforced through amendments to the constitution but through supreme court decisions. Yes indeed, through the due process clause of the 14th amendment, the entirety of the Bill of Rights has become irrelevant.

You'd better believe it. We've got an entirely different sort of government nowadays than we had then. The states had a war between those who overemphasized the federal  aspect of the government (The South) and those who overemphasized the national aspect of the government (The North). The North won, and when their governmental changes were enforced, we were left with a nine-fold national dictatorship. As of that day, the American experiment had failed.

EDIT: At the time of writing this article, I held very different beliefs as regards whether or not abortion, contraception and gay marriage should be legal. I have since "awoken from my dogmatic slumber" and now am am now very much on board with liberty and egalitarianism. The substance of my interpretation of these SCOTUS decisions, however, or as to their significance in regards to the factual change of government structure, has largely remained the same.