A society with no rights, no freedoms, except for those you claim yourself—this was always Justice Clarence Thomas’s vision of the world, Corey Robin writes. “Now, for many Americans, it is the only one available.”
in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, Thomas calls substantive due process an “oxymoron” and a “legal fiction.” The due-process clause “guaranteessubstantive rights,” he writes, “it does not secure a right to abortion.” The same goes for birth control, same-sex sexual conduct, and gay marriage.
Today, the left ties itself into knots over whether it should defend sexual minorities, dismantle the carceral state, or fight for social democracy. For Thomas, these are three fronts of the same war. To reverse the downward spiral of social decadence and patriarchal decay, conservatives must undo the liberal culture of rights, starting with the unenumerated rights of substantive due process.
If misreading the due-process clause has caused the dissolution of Black men, another part of the Fourteenth Amendment offers their rehabilitation. For Thomas, the privileges-or-immunities clause, an obscure and mostly discarded provision that he has sought toThe privileges-or-immunities clause has its roots in the battle over slavery and emancipation.
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