Advisory Opinions All About Substantive Due Process
Oct 30, 2025
Dive into the fascinating world of substantive due process as Sarah and David unravel its historical roots and implications. They tackle pivotal cases like Dred Scott and Obergefell, discussing how recent rulings may impact marriage rights. Enjoy a humorous take on leaked group chats among young Republicans, highlighting the extremes of tribal signaling. The hosts also ponder the delicate balance of unenumerated rights and originalism in modern jurisprudence, all while contemplating the future of legal precedent.
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Dobbs Left Obergefell Intact
- Dobbs neither affirmed nor overturned Obergefell; it left Obergefell untouched.
- That means Dobbs alone did not resolve the substantive-due-process status of same-sex marriage rights.
The Constitution Anticipates Unenumerated Rights
- The Ninth Amendment explicitly recognizes unenumerated rights exist.
- The core question is how courts should identify and protect those rights.
Dred Scott's Legal Overreach
- In Dred Scott the Court said depriving someone of slave "property" violated due process.
- The ruling expanded due process to justify slavery and decided far more than necessary.
