Judicially Undermining Constitutional Democratic Foundations


Prof. William Wagner

WFFC Distinguished Chair for Faith & Freedom at SAU

The application of so-called substantive due process rights seen in cases like Roe v. Wade threaten to subtly undermine our nation’s constitutional democratic foundations.

The final stanza of T.S. Eliot’s poem “The Hollow Men” captures the cultural event happening for the last few decades in America.  He writes,

This is the way the world ends

This is the way the world ends

This is the way the world ends

Not with a bang but with a whimper

In other words, the most precious things often pass away unceremoniously. Eliot’s insight of individual tragedy applies to nations.  The startling thing is not that democratic principles may die in America.  Much worse, the United States may cease to govern under democratic principles, and no one will notice.

Governments possess unique power.  Every law, from speeding tickets to capital punishment, works by taking away someone’s life, liberty, or property.  Giving one man or a small group the godlike power to deprive life, liberty, or property paves the way for a tyrant to create hell on earth.

Our nation’s democratic Republic solves the problem of tyrants by giving the people, through elected representatives, the power to shape the laws to which they must submit.  In this way, we the people make the laws that hold power to take away our own life, liberty, and property.

The Court-Created Doctrine of Substantive Due Process – 

So called, substantive due process transfers that power from the people to unelected courts.  Substantive due process allows the court to ask whether the government has a sufficient reason to take away someone’s life, liberty, and property.  That last sentence represents an absolute coup. It betrays that the judiciary branch now seizes power from the people and their politically-accountable representatives. Democratic principles softly snuffed out with a whimper.

The question substantive due process raises–whether the government has a sufficient reason to take away life, liberty or property–extends to every law.  In a sense, you know you are making a law when you are asking the question whether you have the reason take away someone’s life, liberty, or property.

Now, the constitution preserves certain things ahead of time, like the freedom of the press.  The government almost never has sufficient reason to take away the media’s life, liberty, or property for what they say in the midst of doing their job.  That limitation on the government’s power, however, comes from an expressly articulated constitutional imperative, not from the political preferences of unelected judges on a bench.

The court does not decide that the government lacks a sufficient reason to limit the power of the press.  Instead, the court recognizes that a constitutional limit on government power, created by representatives of the people, enshrines the liberty of a free press.

Actions have Consequences

In Roe v. Wade, the court follows a stream of precedent that improperly empowers it to decide whether the government has the right to limit life, liberty, or property.  By inventing a right to personal autonomy, the court–rather than the people–decides that the government never has a sufficient reason to take away a doctor’s liberty or property for taking life in the womb.

When the power to make law concentrates in a few people, tyranny results.  Between 1970 and 2014, 44 and half million babies lost their life in the womb.  Meanwhile only 29% of Americans think abortion should be legal under any circumstance.

After the most recent presidential inauguration, the Washington Post put a banner on their website that reads, “Democracy Dies in Darkness.”  The truth is much worse.  Democracy may die in the light and few will see that it has happened.


About the Author

Prof. William Wagner
WFFC Distinguished Chair for Faith & Freedom at SAU
Professor Wagner holds the WFFC Distinguished Chair for Faith & Freedom at Spring Arbor University. He has a special interest in building and preserving environments where Christians may share the Good News of Jesus, free from persecution and oppression.

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