This opinion is seriously misinformed, legally. If you actually took the pain to read arguments from Finnis, Craddock and others who make this argument. You are building a strawman here, saying what none of them say. Nobody is saying that the court has to recognize an active "duty to protect" anyone's life. The point is, since all states (even blue states) ALREADY have laws on the books protecting the lives of born people (i.e. homicide statutes), such laws would be struck down by the court as discriminatory since they exclude a certain class of people (e.g. fetuses). And since no state would want it's murder laws struck down, they'll have to amend those laws.
Of course there are OTHER, actual issues with this approach (eg. loopholes, blue states prosecutors refusing to comply, etc.), the court getting tangled up in endless cases over who else is and isn't a person, what is a legitimate use of "self defense" and that there is no one currently on the supreme court who wants to go that far, I think overall the idea is pretty unlikely. But it is possible, and also doesn't preclude other means of establishing personhood under 14th Amendment (e.g. a congressional act or statute declaring personhood, for example, I think is far more likely).
1. Finnis is not a serious part of movement conservativism. He's a crank. There's no doubt that there are a few cranks who throw around arguments (another example is the argument that we will interpret the Fourteenth Amendment to deny citizenship to undocumented immigrants). But the point is, the right wing invests no effort in litigating these claims. They don't fund them, they don't gin up public interest suits to push them, etc. These people exist, as part of a small ecosystem of people (there are some on the left too) who make nonstarter, ridiculous constitutional arguments. But that is not how arguments are moved through the courts.
2. The equal protection argument is still a duty to protect. Let's say they can get away with not overturning DeShaney. You get a court decision that says a state's decision to protect the lives of group X but not group Y is unconstitutional. Now put yourself in the shoes of a conservative judge for a second. Do you really think that's an argument that a conservative judge wants to endorse? What group of people, specifically protected in the 14th Amendment, I might add, has their lives systematically less protected than the majority? Blacks! What other groups of people are systematically less protected? Women! Gays! Trans people! You think Justice Alito wants to endorse a legal theory that would allow all those people to allege equal protection claims against, say, the commitment of police resources to protecting rich white people?
It's not possible. And I might add, the actual people who control the conservative legal movement think a lot about this stuff. They are very strategic. They think about what cases to bring, where to bring them, what laws to pass, etc. They aren't a bunch of people BS'ing around in a dorm room at 2 in the morning, throwing around arguments for effect. They have a systematic view of what they want the law to look like, and any sort of affirmative duty to protect life, whether included in the Due Process or Equal Protection Clauses, is bad for conservative causes. They have no desire to go there, which is why John Finnis is an obscure law professor who writes irrelevant articles and not a major player in the conservative legal movement like, say, a Randy Barnett is.
This opinion is seriously misinformed, legally. If you actually took the pain to read arguments from Finnis, Craddock and others who make this argument. You are building a strawman here, saying what none of them say. Nobody is saying that the court has to recognize an active "duty to protect" anyone's life. The point is, since all states (even blue states) ALREADY have laws on the books protecting the lives of born people (i.e. homicide statutes), such laws would be struck down by the court as discriminatory since they exclude a certain class of people (e.g. fetuses). And since no state would want it's murder laws struck down, they'll have to amend those laws.
Of course there are OTHER, actual issues with this approach (eg. loopholes, blue states prosecutors refusing to comply, etc.), the court getting tangled up in endless cases over who else is and isn't a person, what is a legitimate use of "self defense" and that there is no one currently on the supreme court who wants to go that far, I think overall the idea is pretty unlikely. But it is possible, and also doesn't preclude other means of establishing personhood under 14th Amendment (e.g. a congressional act or statute declaring personhood, for example, I think is far more likely).
Thanks for commenting!
1. Finnis is not a serious part of movement conservativism. He's a crank. There's no doubt that there are a few cranks who throw around arguments (another example is the argument that we will interpret the Fourteenth Amendment to deny citizenship to undocumented immigrants). But the point is, the right wing invests no effort in litigating these claims. They don't fund them, they don't gin up public interest suits to push them, etc. These people exist, as part of a small ecosystem of people (there are some on the left too) who make nonstarter, ridiculous constitutional arguments. But that is not how arguments are moved through the courts.
2. The equal protection argument is still a duty to protect. Let's say they can get away with not overturning DeShaney. You get a court decision that says a state's decision to protect the lives of group X but not group Y is unconstitutional. Now put yourself in the shoes of a conservative judge for a second. Do you really think that's an argument that a conservative judge wants to endorse? What group of people, specifically protected in the 14th Amendment, I might add, has their lives systematically less protected than the majority? Blacks! What other groups of people are systematically less protected? Women! Gays! Trans people! You think Justice Alito wants to endorse a legal theory that would allow all those people to allege equal protection claims against, say, the commitment of police resources to protecting rich white people?
It's not possible. And I might add, the actual people who control the conservative legal movement think a lot about this stuff. They are very strategic. They think about what cases to bring, where to bring them, what laws to pass, etc. They aren't a bunch of people BS'ing around in a dorm room at 2 in the morning, throwing around arguments for effect. They have a systematic view of what they want the law to look like, and any sort of affirmative duty to protect life, whether included in the Due Process or Equal Protection Clauses, is bad for conservative causes. They have no desire to go there, which is why John Finnis is an obscure law professor who writes irrelevant articles and not a major player in the conservative legal movement like, say, a Randy Barnett is.