Thursday, July 7, 2022 | 2 a.m.
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The overturning of Roe v. Wade was expected for months. No shock.
What is shocking, but not unexpected, is the concurring opinion of Justice Clarence Thomas, who says the Roe decision isn’t over, it’s just the beginning.
Thomas argues that if the Constitution doesn’t expressly set forth certain substantive rights, then the rights don’t exist.
Or in his own words: “As I have previously explained, ‘substantive due process’ is an oxymoron that “lack(s) any basis in the Constitution.”
We should reconsider some of this court’s substantive due process precedents, which include Griswold v. Connecticut (the right of married persons to obtain contraceptives); Lawrence v. Texas (the right to engage in private, consensual sexual acts); and Obergefell v. Hodges (the right for same-sex couples to be married).
Because any substantive due process decision is “demonstrably erroneous,” according to Thomas, these cases should also be overturned. Thomas made no mention of Loving v. Virginia, the landmark 1967 ruling that struck down laws prohibiting interracial marriage which also invoked the substantive due process doctrine.
So in Thomas’ dystopian view, the Constitution guarantees one the right to own and carry an AR-15 with the capacity to mow down a dozen people in less than 10 seconds, and also allows one to walk the streets with a pair of 20-shot Glocks strapped on his hips, but people can be jailed if caught in possession of a prophylactic.
