The Second Founding

"The standard public debate over the Fourteenth Amendment goes something like this. Critics of the Supreme Court's interpretations of the Fourteenth Amendment over the last several decades believe that the Court has used the Amendment's provisions for 'due process of law' and 'equal protection of the laws' as open-ended vehicles for judicial policymaking, whether on abortion or gay marriage or a host of other issues. Indeed, it is difficult for someone sympathetic to the result in the 2015 gay marriage case Obergefell v. Hodges to read the Court's opinion and get the feeling that what the Court is doing is law. The case was decided under the rather nebulous concept 'substantive due process,' the idea that the Fourteenth Amendment's injunction that no person shall be deprived of life, liberty, or property without due process of law is not merely about process as its terms might suggest, but also about 'substance'--namely, that the clause protects unwritten, unenumerated fundamental rights or prohibits arbitrary and oppressive legislation"

Ilan Wurman is an Associate Professor of Law at the Sandra Day O'Connor College of Law at Arizona State University, where he teaches constitutional law. He is the author of A Debt Against the Living: An Introduction to Originalism (Cambridge 2017), and publishes on administrative law and constitutional law in the nation's top law journals.