Tuesday, October 6, 2009

Due process and Megyn Kelly's baby

There are two kinds of provisions in the United States Constitution. One is the kind nobody in their right mind could argue about. I don't care if you are liberal, conservative, Republican, Democrat, a Steelers fan or a Cowboys fan--there is no argument what is meant by each state having two senators.

Then there is the other kind of provision. That's the stuff that gets argued about because obviously the thing described is subject to interpretation.

A great example of the second kind of provision is the Due Process Clause. The Fifth Amendment, in part, assures us that "No person shall be... deprived of life, liberty, or property, without due process of law." That only applies to the federal government, but right after the Civil War, Section 1 of the Fourteenth Amendment made it clear that "No State shall... deprive any person of life, liberty, or property, without due process of law."

Okay, fine. There's just one little problem: what the heck is due process anyway?

One of my favorite comments on the matter--and one that has wound up being cited in numerous treatises and court cases--was made by Supreme Court Justice Benjamin Cardozo in the 1934 case of Snyder v. Massachusetts, 291 U.S. 97. Due process, as Cardozo defined it, is "some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." (Snyder at 105).

A notable example of a citation of Cardozo's concept of due process came in Justice Rehnquist's dissent in Roe v. Wade, 410 U.S. 113 (1973). Opined the future chief justice:

"The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not "so rooted in the traditions and conscience of our people as to be ranked as fundamental," Snyder v. Massachusetts, 291 U. S. 97, 291 U. S. 105 (1934). Even today, when society's views on abortion are changing, the very existence of the debate is evidence that the "right" to an abortion is not so universally accepted as the appellant would have us believe." (Roe at 174).

The Roe majority had, you see, based it's argument that a woman has a right to an abortion on the due process clause of the Fourteenth Amendment.

But here is the question that was suggested to me by Cardozo's concept. Just how long does it take for some principle of justice to be so rooted in the traditions and conscience of our people as to be ranked as fundamental?

I think it can be a relatively short span of time. That was suggested to me by the result of another case, also involving a pregnant woman, the year after Roe was decided.

In Cleveland Board of Education v. Lafleur, 414 U.S. 632 (1974), the Supreme Court struck down requirements of local public school boards that a pregnant teacher go on unpaid leave several months before her baby was due. That, said the majority, was inconsistent with the Due Process Clause of the Fourteenth Amendment. Once again, Justice Rehnquist dissented; this time without citing Snyder.

It seems to me that in 1974 it might have been a reach to hold that Cardozo's due process--something so rooted in our traditions and conscience as to be fundamental--included a right of a woman on a government payroll to continue working right up until she goes into labor. But you know what? Here we are just three and a half decades later and now I think you can argue that this sort of thing IS "rooted" and "fundamental." This occurred to me recently when Megyn Kelly of Fox News-who ironically enough is a lawyer--gave birth to a bouncing baby boy. From the linked note:

"Kelly anchored her show yesterday [the day before she gave birth], even delivering a segment on the top 5 things not to say to a pregnant woman. And she even did her regular segment on 'The O'Reilly Factor' last night."

Here's the top five things not to say, if you're interested. My point is this: do you even bat an eyelash now when you hear that a woman worked right up until the day before she went into labor? I'll bet you don't. But if you're old enough to remember that far back, I'll also bet the thought of a woman doing this back in 1974 was somewhat shocking to you. And when Snyder was decided, forty years before Lafleur, the very idea that "due process" protected a right of woman to work up until she dropped the child, was absolutely unthinkable.

The Lafleur decision, which no doubt caused a lot of people who came of age in the fifties or earlier to gasp, now seems pretty darn tame. Small wonder. Pregnant women toiling until mere hours before the water breaks has, in just a couple of decades, become so rooted in our traditions and conscience as to be fundamental.

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