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March 20, 2013

Rand Paul Confuses Everyone on Abortion

Read Allah's article on it.

I don't understand myself, but I'll hazard a guess. His bill purports to protect fetuses' due process rights under the 14th Amendment. "Process" is not the same as "outcome." That is, a criminal can have all of his due process rights scrupulously observed and yet still be hanged. (Actually, an innocent man can have his due process rights scrupulously observed and yet still be hanged, too.)

Does his answer seem muddled because he's observing, or trying to observe, a distinction between process (fair hearing before a neutral arbiter) and outcome?

And feels that mandating an outcome (no abortions) would be an unconstitutional distortion of due process rights? (Constitutionalists are generally against so-called "substantive due process," a contradiction in terms, also known as "not due process.")

And so instead is merely offering procedural guarantees to fetuses, that there will be a hearing before a magistrate to determine their rights to life?

And is -- per political prudence and regard for constitutionalism -- specifically not guaranteeing what outcomes will result from such due-process-for-abortions-hearings?

That seems to make sense of this, to me, at least. But I'm a moron.

Due Process, Substance, and "Substantive Due Process:" Section 5 of the 14th Amendment guarantees everyone in the country due process before being deprived of life, liberty, or property. Because this applies to all citizens, it has been used -- and abused -- by those who wish federalize every issue. Under the guise of guaranteeing "due process," judges have permitted a bunch of non-process rights for citizens and non-process forbiddences of government (often police) action.

For example, by its own terms, the Due Process Clause only requires a fair hearing before a neutral tribunal and the guarantee to secure and present evidence in one's favor before, say, a death penalty sentence is imposed. It only guarantees a certain process. It does not, by its own terms, claim that certain outcomes are forbidden. And yet it is frequently grasped at by people wishing to claim the Constitution forbids a certain outcome or guarantees a certain outcome.

Thus was born the oxymoronic term of art, "substantive due process," a hash of a term meaning "substantive rights to have something, or substantive rights to be free of certain burdens or penalties, which are somehow dictated by a clause that by its own terms only guarantees a certain process."

Liberals are very big on substantive due process, though they don't call it that anymore, because substantive due process became a scandalous crime against the Constitution when libertarian-minded judges used it to guarantee such substantive rights as "liberty of contract" in the 20s and 30s. So liberals call it something else now and use it quite a bit. But in fairness, most people who strongly desire a certain outcome will quickly convince themselves of the merits of substantive due process if they see it as a likely pathway to the policy they seek.

Anyway, it's my guess (which really isn't so much a guess as the offering of an idea to be batted about) that Paul is attempting to hew to the more-constitutional notion that "due process" really means due process -- a process, not a guaranteed result -- and not the sudden discovery of a substantive right.

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posted by Ace at 02:22 PM

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