SMU Law Review


In Dobbs v. Jackson Women’s Health Organization, the Supreme Court reversed decades of precedent supporting a substantive due process right to abortion under the Fourteenth Amendment, and purported to return the question of reproductive autonomy to the “democratic process” in the states. Justice Thomas, writing in concurrence, militated for reconsidering all of the Court’s substantive due process precedents. In today’s era of democratic backsliding, these are dangerous pronouncements with grave, if not existential, implications for democracy in the United States. The Dobbs majority hazardously asserted that state-level abortion legislation would, in fact, be the result of a democratic process. Further, because the law of democracy draws extensively from substantive due process, including where the Fourteenth Amendment “incorporates” textually enumerated constitutional rights against the states, the broader threat to substantive due process in the Dobbs majority opinion and Justice Thomas’s concurrence is also a direct threat to democracy itself.

Although the literature on democracy and the literature on substantive due process are both individually voluminous, there is surprisingly limited scholarship focused specifically on both as interrelated topics. Building from democratic theory and John Hart Ely’s political process theory of judicial review, this Article seeks to begin elaborating on the important connections between democracy and substantive due process that help explain the legal and practical importance of each to the other. In doing so, it also attempts to lay the groundwork for an approach to substantive due process rooted in the Federal Constitution’s vision of democratic self-government for a diverse society.

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