At My Real Job: What Is Due Process?

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Jason Kuznicki

Jason Kuznicki is a research fellow at the Cato Institute and contributor of Cato Unbound. He's on twitter as JasonKuznicki. His interests include political theory and history.

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  1. Avatar E.C. Gach
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    “Substantive due process makes sense: some things government does—arbitrary, irrational, self-serving exercises of political power—lack the elements that make a legislative pronouncement a “law.” These fail to fulfill the Constitution’s promise that the government will accord us due process of law. Deciding whether a challenged government act is or is not a law in this sense is fraught with normative considerations, of course, so it’s unsurprising that it would be the target of heated criticism. So, too, judges sometimes reach wrong decisions, here as in other things. But these critiques are equally true of principles like separation of powers, which also require judges to engage in complicated analyses and refer to normative and practical considerations outside the four corners of the Constitution. The task before lawyers and judges is to engage in such analyses, and lawyers are badly served by the contemporary fashion of ridiculing substantive due process, or dismissing normative deliberations as somehow not in our job description.”

    Investing that kind of responsibility in lawyers and judges, rather than elected officials, does not sit right with me.  The fact that such normative considerations adhere in the principle make it unfit for undemocratic institutions to administer it.Report

    • Avatar Jason Kuznicki in reply to E.C. Gach
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      You make one of the stronger arguments against Sandefur’s position.  But it does to some degree contain an unsupported premise, namely that democratic majorities will understand what constitutes legal fairness better than the court system itself, and that — to look at it from the standpoint of the separation of powers — these majorities should never be checked without an explicit constitutional prohibition.

      I’m curious how well this lines up with your policy preferences, of course, though ultimately we’re aiming at something a bit higher-order than that.Report

      • Avatar DensityDuck in reply to Jason Kuznicki
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        Isn’t the entire Constitution based on the notion that democratic majorities will understand what constitutes legal fairness better than the court system?

        Or, rather, those democratic majorities will define legal fairness.  Which is, I think, why so many people have problems with the idea.  Because if “fair” is defined by majority vote, then what society decides is “fair” might not be what’s advantageous or permissive for you.Report

        • Avatar Jason Kuznicki in reply to DensityDuck
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          To me, the Constitution is based on the idea that no one of the three ancient forms of government — democracy, aristocracy, and monarchy — is appropriate for all spheres of action.  So we have a bit of each of them.  The laws are made by a democracy (a representative one, anyway).  They  are carried out by a monarch (again, an elected one).  And they are interpreted by an aristocracy (of those who are educated in law).

           Report

          • Avatar E.C. Gach in reply to Jason Kuznicki
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            And what seems to be in question is what an equilateral balance of that tri-partite configuration would be (without even addressing whether that should be the case; I for one support the belief that Congress is the “first branch” in more ways than one).

            I’ve always seen the role of the SCOTUS as being most concerned about enforcing consistancy with in the established system of laws (i.e. reducing arbitrariness).  Thus, when Congress passes a law that is inconsitant with others, either the previous one or the new one is nullified, based on what has priority, e.g. the Constitution trumps Congress, but Congress trumps itself.Report

    • Avatar Ryan Bonneville in reply to E.C. Gach
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      I’m interested to see how you’d make this work in practical terms. Would there be a separate elected body tasked with determining whether a law violates due process? Congress cannot be the judge of whether its own laws violate due process, because that would render the entire concept meaningless. So if not judges, who does it?

      As Jason says, there is more going on here than mere policy preferences, but I’d like to see how your expressed position interacts with things like Roe v. Wade and Lawrence v. Texas to see how you’d put everything together. Do you think those cases were wrongly decided? Or do you think their decisions can be reached without recourse to the kind of “judges doing normative work” thing that you’re opposing?Report

      • Avatar DensityDuck in reply to Ryan Bonneville
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        “Would there be a separate elected body tasked with determining whether a law violates due process?”

        Yes.Report

        • Avatar Ryan Bonneville in reply to DensityDuck
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          Are you advocating an elected Supreme Court or just pointing out that it’s already an implicitly political institution? If the former, keep talking; that’s interesting. If the latter, we agree.Report

          • Avatar DensityDuck in reply to Ryan Bonneville
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            I did miss the bit about “elected” body until the instant I hit the “post” button.

            But it’s not like there’s no organization created by the Constitution that can perform independent review of the process by which a law was brought into existence.Report

            • Avatar Patrick Cahalan in reply to DensityDuck
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              Yes, but it doesn’t formally do it prior to execution.

              As an audit mechanism, SCOTUS isn’t complete.  It doesn’t review every bit of legislation after it passes the House & Senate and get the President’s signature.  It only reviews those things which make their way through the court system to SCOTUS (and then sometimes it chooses to punt).

              I don’t know that I’d recommend that every bit of law go straight to SCOTUS for review… but there’s nothing fundamentally broken about the idea of having a jurist review board of some sort provide a review of a new law prior to it be enacted.Report

              • Avatar Will H. in reply to Patrick Cahalan
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                There are different manner of statements given to Congress concerning laws before they are voted on.
                I remember reading through some of those statements regarding the Identity Theft and Deterrence Act (ITAD).

                At least on occasion, there are outside scholars which assist in crafting legislation. The issue of concurrent jurisdiction of RICO is still unresolved. Some fellow from either Purdue or Notre Dame, Blakey, actually wrote most of RICO. Jurisdiction was never mentioned in the statutes, because it was assumed that the federal courts would have jurisdiction. The courts had different ideas.

                I remember reading through some stuff, and I was comparing the definitions of “physical force” from one instance to another; in the one place, “physical force” included threat of false imprisonment, while the other referred to “violent crimes.”
                So, I went to see what the “violent crimes” were, and I saw that they referred to “brandish[ing]” a firearm. I thought, “How prudent of Congress to choose precisely the right term! With a word like “brandish,” the intent of Congress is very clear.”
                To my dismay, I saw below in the same statute a four-line definition of every action that could constitute “brandishing.” It was like Spinoza x 3.
                But it underscored the point that Congress has a historical relationship with the judiciary, and that Congress doesn’t trust them very much. And rightfully so.

                Enforcement of the law and providing for enforcement is a different matter altogether.Report

      • Avatar E.C. Gach in reply to Ryan Bonneville
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        I’m not advocating against the SCOTUS’s pressumed right to judicial review, but rather that we need not advance that right toward issues of “the public good.”

        In a given instance, I can understand the desire for a “non-partisan” body like the Court to step in and be the arbiter of last resort on these issues.  And in extreme cases where there are in a position to do “what is right,” I would of course wish that they overstep these boundaries and do what must be done, so to speak.

        But the problem comes with institutionalizing this kind of responsibility.  Democracy is predicated on the value of each individual having access to some modicum of self-determination, or expression.  In addition, there is the line of argument which believes that the more people are included in deliberation and decision making, the less likely any one decision is to reside too far outside the mean, or for any one’s worst impusles to be implemented. 

        Monarchs do not check themselves, but part of Democracy’s believed superiority as a governing mechanism is that it DOES have the ability to check itself, via the diversity of its constituent components.

        And here is where things get tricky.  Because while I feel that the individual outcomes of Roe v. Wade, and L v. Texas further “the public good,” I do not agree with the reasoning used to decide them.

        When the Constitution gives us less guidance that we require, that should signal the need to amend it, rather than simply paper over it.

        The mess that BP alludes to below is precisely why I find what I will call the “legal tradition” a probematic vehicle for dealing with issues of “the public good.”

        It is a jargon filled field, with high barriers to entry, and extremely particular rules for making decisions and controlling how the law progresses.  I view the legal discipline less like a profession, and more like a cult with its own values, procedures, and attitudes that remain highly insular from the egalitarian marketplaces we see in other areas of American life.

        As a result, I prefer that Congress, or state legislatures, decide what is “in the public good,” as contrained by a less activist understanding of judicial review, rather than letting the SCOTUS be the final voice on such things instead.  We may not like the laws that are passed, or the Constitution as it stands, but that is a call to lobby for the reversal of those laws, and the amendment of that document, rather than for 9 individuals to render decision on the matter from high above instead.Report

        • Avatar Mark Thompson in reply to E.C. Gach
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          As a practical, functional matter, it would seem to me that the courts are actually more egalitarian than the legislature, at least on the federal level, and to no small extent even on the state level.  To successfully lobby Congress all but rarely requires an ability to marshal tremendous resources; moreover, as a practical matter, members of Congress are extraordinarily wealthy.

          To successfully win a court case achieving the same result may often only require a dedicated pro bono attorney.  And while judges surely tend to be quite wealthy as well, the barriers to entry to becoming a judge seem to allow a little bit more in the way of opportunity for appointment without being disgustingly wealthy.

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          • Avatar E.C. Gach in reply to Mark Thompson
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            It costs relatively nothing to call a Congress person or state represenative, to petition or mail letters, visit in person or protest.

            By comparison the law is much more exclusive, costly, and arbitrary.

            How many of the Supreme Court judges of the past several decades came from non-Ivy law schools, or not from law school at all?  And how much does law school cost?  And how is having one person decide a question, rather than a democratic vote or elected body, more egalitarian?Report

            • Avatar Ryan Bonneville in reply to E.C. Gach
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              It costs nothing to call a Congressperson, but it costs an inordinate amount to change his or her mind about something (or to get the one you want elected in the first place).

              It costs a great deal to become a Supreme Court justice or judge, but it costs considerably less to ask them for redress for an injustice.

              Whatever the merits of the theoretical case, it remains a fact that the one great bulwark standing between the individual and tyranny in the US has always been the court system. Democracy has a rather poor record when it comes protecting the rights of the individual.Report

              • Avatar E.C. Gach in reply to Ryan Bonneville
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                How are individuals to be free and independent when they require old men and women in drab black robes to protect people from one another.

                Public participation trumps money in politics every time.  It is only the inactive passivity of democratic citizens that gives money in politics the power we think it does.Report

              • Avatar Ryan Bonneville in reply to E.C. Gach
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                I don’t think any member of the Supreme Court has done anything to you that merits insulting their fashion sense.

                More seriously, I think you’re just obviously, empirically wrong. This may just be an impasse, but I consider the kind of democracy you advocate almost totally worthless for defending the rights of the individual against the state. I also don’t think the historical record supports anything like your last sentence; money and/or class have always been determining factors in politics.Report

              • Avatar E.C. Gach in reply to Ryan Bonneville
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                Which is why the Civil Rights movement failed, Women’s suffrage failed, and the Great Society was never attempted.Report

              • Avatar DensityDuck in reply to E.C. Gach
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                Don’t forget the way that Prohibition was never repealed, due to the influence of monied interests who made quite a lot of revenue from the underground liquor trade.Report

              • Avatar Burt Likko in reply to E.C. Gach
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                In the case of the civil rights movement, litigation before SCOTUS was an integral part of its success.

                In the case of women’s suffrage, there was no anti-suffrage movement seeking to amend the constitution to prohibit women from voting, or attempting to unseat judges favorably disposed to suffrage.

                In the case of the Great Society, there was a distinction made between its poverty relief as a legislative entitlement rather than a Constitutional obligation. LBJ would not have argued at all with the proposition that Congress could reverse the Great Society whenever it chose to do so. He’d have just argued that it ought not to.

                DD’s example of prohibition repeal is the strongest of the four on this point, IMO.Report

          • Avatar E.C. Gach in reply to Mark Thompson
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            Are we going to start comparing the problems with democracy against those of other political arrangments?  If so, I’ll say ahead of time that I think it fairs pretty well.

            And would judicial review as a means of enforcing legal constitancy require pondering the public good?  The Constitution which binds all of these things together was originally produced and ratified by quasi-democratic means (obviously in practice, not at all, but had everyone actually been included, I don’t think the basic ideas would have changed, though perhaps they would have), which, whether it achieved it or not, claimed to be after the public good.  The SCOTUS could enforce consitancy between the document and everything that came after it, without, as a matter of judicial review, needing to re-open the question of what the public good is.

            They of course do re-open that question all the time, as when deciding if a certain newly passed statute furthers the public good more than the principle or language that would restrict/disqualify it, but again, that’s something I don’t think it should do, or needs to in order to continue judicial review.Report

            • Avatar Ryan Bonneville in reply to E.C. Gach
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              I’m not sure I follow how this works. Is the upshot of this position effectively some weird authoritarian amalgam of social conservatism and economic liberalism, wherein every single law passed by every single legislative body is prima facie kosher unless the Constitution specifically prohibits it?

              Maybe it’s my latent libertarianism showing, but that sounds exactly backward. And, pace Robert Bork, it would totally eviscerate the Ninth Amendment.Report

              • Avatar E.C. Gach in reply to Ryan Bonneville
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                I’m not sure what it has to do with social conservatism or economic liberalism, but what other point of judicial review is there?

                Beyond reviewing laws to see if they conflict with the Constitution, what other role do you see for this process Ryan?

                As for the 9th amendment, it’s hard to say what we would be eviscerating since it’s had to know what it even means.Report

              • Avatar Ryan Bonneville in reply to E.C. Gach
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                For starters, you’re packing a lot into “reviewing laws to see if they conflict with the Constitution”. Your position appears to be more like the way I stated it, which is why I asked. I just want some clarity on that.

                My claim about social conservatism and economic liberalism is that your position appears to be an (unholy) amalgam of things said by both of those sides when their issues are on the burner. That is, social conservatives don’t see anything in the Constitution explicitly stating that sodomy laws are a no-go, so they must be okay, while liberals don’t see anything in the Constitution explicitly prohibiting a law mandating the purchase of shoes that are three sizes too small, so that must be okay too.

                On the other hand, it’s fairly clear that Constitution was intended to be seen as somewhat more of an open document. For my money, the Ninth and Tenth Amendments are not vague on accident; the mistake Robert Bork made, and that you make, is assuming that the vagueness of the language is a license to ignore what they might be trying to accomplish.Report

              • Avatar E.C. Gach in reply to Ryan Bonneville
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                “On the other hand, it’s fairly clear that Constitution was intended to be seen as somewhat more of an open document. For my money, the Ninth and Tenth Amendments are not vague on accident; the mistake Robert Bork made, and that you make, is assuming that the vagueness of the language is a license to ignore what they might be trying to accomplish.”

                That vagueness is exactly what leaves it open to the arbitrary pronouncements of a handful of similar people, i.e. SCOTUS.

                My argument is that it should be ignored, not simply because it is vague, but rather because its interpretation is so completely wide open that basing public law on the whims of the few people charged with interpreting it is worse (more arbitrary) than relying during these instances on the decision that results from an egalitarian process in which nearly all are involved.

                 Report

              • Avatar Ryan Bonneville in reply to E.C. Gach
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                Okay, well, let’s be explicit that your position is that the Supreme Court should “review laws to see if they conflict with the Constitution” by willfully ignoring parts of the Constitution that you consider sufficiently unclear.

                And we haven’t even gotten to “cruel and unusual punishment” or “speech”.Report

              • Avatar E.C. Gach in reply to E.C. Gach
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                “Constitution that you consider sufficiently unclear”

                That passage is not unclear, it doesn’t even begin to explain itself.  Honestly, is there antyhing that one could NOT argue is a right included in that amendment?  Can you name anything that you know for certain is a right not included in that language?

                And yes, you don’t want to get me started on what counts as speech.  All of these vague areas are ones that should be amended to be made clear, by whatever democratic super majority thinks at the time. 

                This is what I call papering over the Constitution.  Judges see voids in the first amendment as a result of modern developments in communication technology, or that had always been present, and attempt to fill those voids with endless legal resoning, historical analysis, and interprative philosophy until it is smooth and workable.

                But why vest them with making up law where it is unlcear, rather than creating it through democratic means instead?Report

              • Avatar Ryan Bonneville in reply to E.C. Gach
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                For starters, I don’t think they’re “making up” anything. I think they’re figuring out how the words that are there, and the things they were intended to do, work in a changing environment. To conclude that things you write on the internet don’t qualify as speech until enough people decide to amend the Constitution to explicitly label them “speech” seems about a thousand times more frightening than the status quo you reject.

                In any case, this is an interesting cleave between two people here at the League who I would consider generally on the same side, politically speaking. My liberalism leads me to skepticism of democracy and a preference for the moderating influence of the legal system; yours goes right in the opposite direction.Report

        • Avatar Mark Thompson in reply to E.C. Gach
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          A few other things.

          First, the trouble with using the “public good” as your metric for when judicial review is/is not appropriate is that as a practical matter it means an end to judicial review, full stop.  Every law that has ever been passed and ever will be passed is justified with some sort of paean towards the “public good,” which is impossible to define.

          Second, the theory of democracy may well be that it has the ability to check itself, and that it “is predicated on the value of each individual having access to some modicum of self-determination, or expression.”  The reality of democracy is that Socrates was forced to drink hemlock; infinitely worse, the majority Hutus murdered not only every Tutsi they could find, but also the Hutus who expressed opposition to doing so.  Democracy does not tolerate dissent from the majority terribly well.    This may well be a smaller problem in a fairly homogenous culture; it is a much bigger problem in a large, diverse country, and it is worst of all when the dominant culture (and there is always a dominant culture) sees an opportunity to create that homogenous culture so necessary for democracy to be able to “check itself.”

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          • Avatar Jason Kuznicki in reply to Mark Thompson
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            First, the trouble with using the “public good” as your metric for when judicial review is/is not appropriate is that as a practical matter it means an end to judicial review, full stop.  Every law that has ever been passed and ever will be passed is justified with some sort of paean towards the “public good,” which is impossible to define.

            The entire argument is premised on the idea that “public good” is not impossible to define.  This isn’t so strange — courts already do it.  The rational basis test asks about legitimate government aims; intermediate scrutiny asks about important ones; strict scrutiny asks about compelling ones.

            These are the public good, and courts already have a large body of caselaw dedicated to finding it.

            As to the rest, I agree.  The cure for power is not to push power to somewhere else.  It’s to withdraw legitimacy and return to individual rather than collective choice.  (Bearing in mind that at times the cure is worse than the disease, of course.)Report

            • Avatar Will H. in reply to Jason Kuznicki
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              “The American rule has two major common law exceptions (instances when federal courts may award attorneys’ fees without statutory authorization): the common benefit doctrine and the bad faith doctrine.3 These derive from the historic authority of the courts “to do equity in a particular situation.”4 This authority has been called the “supervisory” or “inherent” power of the federal courts.5”

              3 The Supreme Court has noted a third exception: “a court may assess attorney’s fees as a sanction for the ‘willful disobedience of a court order.’” Chambers v. NASCO, Inc., 501 U.S. 32, 45 (1991). However, this may be viewed as falling within the bad faith doctrine.

              4 Sprague v. Ticonic National Bank, 307 U.S. 161, 166 (1939).

              5 See, United States v. Horn, 29 F.3d 754, 759 (1st Cir. 1994) (sovereign immunity precludes use of supervisory power to order the United States to pay the fees and costs incurred by criminal defendants in litigating prosecutorial misconduct issue; but see, P.L. 105-119 (1997), discussed below in Ch. XVII). Although the Supreme Court noted in Chambers, supra note 3, “that the exercise of the inherent power of lower federal courts can be limited by statute or rule, for ‘[t]hese courts were created by act of Congress’” (501 U.S. at 47; the Supreme Court was created by the Constitution, Art. III, § 1), the court of appeals in Horn wrote: “It is not yet settled whether some residuum of the courts’ supervisory power is so integral to the judicial function that it may not be regulated by Congress (or, alternatively, may only be regulated up to a certain point).” 29 F.3d at 760 n.5.

              Source: Congressional Research Service 94-970Report

        • Avatar Stillwater in reply to E.C. Gach
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          As a result, I prefer that Congress, or state legislatures, decide what is “in the public good,” as contrained by a less activist understanding of judicial review, rather than letting the SCOTUS be the final voice on such things instead.

          I’m not sure I understand the objection you’re presenting here, and because of that I probably don’t understand your proposed solution. On the one hand, the primary worry is that judges making decisions on anything more than procedural grounds ought to be viewed as unjustified. Sandefur argues that substantive considerations inform all judicial decisions, either implicitly or explicitly, so the suggestion that basing a decision on substantive grounds constitutes activism is misplaced. You’re response is that despite this, the courts have too much power to determine the scope, interpretation or even legality of legislation, and a system with more procedural judicial review, and less substantive judicial activism, would lead to better legislation. (Is that right?)

          But if so, doesn’t it just kick the can up the road in a sense? Judicial review of proposed legislation will – and I think this was part of Sandefur’s point –  necessarily include substantive considerations. But more importantly, the public good is only a useful measure of legality insofar as legislating promoting it is consistent with constitutional and other provisions. So I guess I’m unsure how that proposal leads to better legislation, or would even limit the roll of the SC in determining the legality of the act or the limits of its provisions. I mean, presumably, the individuals/groups opposing the legislation feel they have a legitimate legal argument justifying their position, one they would want to advance in court.

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          • Avatar E.C. Gach in reply to Stillwater
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            “But if so, doesn’t it just kick the can up the road in a sense? Judicial review of proposed legislation will – and I think this was part of Sandefur’s point –  necessarily include substantive considerations.”

            Could you give me a quick example, or link excerpt one of his from the piece for me?

            I remain unconvinced of this point, but perhaps I glossed over it too quickly, and it not catch the nuance of his argument.Report

            • Avatar Stillwater in reply to E.C. Gach
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              Well, I’m admittedly tiptoeing towards the unsafe deep-end here, so I’ll just rephrase it pretty generally. Sandefur is arguing – it seem to me (I could be wrong!) – that substantive considerations necessarily inform our concept of the law. That is, that procedural requirements aren’t enough. If so, then formal mechanisms aren’t sufficient to justify legislation – to make it a law – even if the argument is that it promotes the public good. It must meet some substantive requirements as well – fairness, or consistency with constitutional provisions.

              Now, you’re right that he didn’t say that the process of legislative review would entail the introduction of substantive considerations into a purely formal mechanism. I made that inference on my own (maybe incorrectly). But it stands to reason that if the purpose of judicial review is to determine the likelihood that a piece of legislation satisfies the criteria for being a law, then both formal as well as substantive requirements would apply.

              But, you know, I’m admittedly deep in the weeds on this stuffReport

              • Avatar Ryan Bonneville in reply to Stillwater
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                I think the claim Sandefur makes about the lynch mob is exactly apropos. There is nothing in the language of the Constitution that prevents a lynch mob from fulfilling the requirements set forth in the Fifth and Sixth Amendment. The notion that a lynch mob cannot carry out due process of the law is a substantive one, not a procedural one.Report

              • Avatar E.C. Gach in reply to Ryan Bonneville
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                We can have a “fair” process without requring a substantive one. 

                It is the consistancy of laws that the SCOTUS is charged to maintain that itself demands procedural fairness.  To know what is the truth of something necessarily requires procedures that best get at that truth.

                I’m wading into legal territory here that is above my pay grade.  But can you point to an argument that shows, explicitly and precisely, how procedural legal rights are derrived from substantive concerns that haven’t already been articulated in Congress, English Common Law, or the Constitution?Report

              • Avatar E.C. Gach in reply to Stillwater
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                @stillwater:

                “But it stands to reason that if the purpose of judicial review is to determine the likelihood that a piece of legislation satisfies the criteria for being a law”

                I thought the purpose of judicial review was to decide of a statute conflicted with the Constitution, not if it was a statute to begin with.  If all laws are Constitutional, but not necessarily all statutes, than it is indeed the Court that gets to decide what the law is, rather than just whether it has been adhered to. 

                Am I the only person frightened by such a possibility?Report

              • Avatar Ryan Bonneville in reply to E.C. Gach
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                If a statute conflicts with the Constitution, isn’t it necessarily the case that it’s not a statute to begin with? If Congress passes a law abridging the freedom of the press (whatever that means – Congress will tell us!), the Constitution tells us that that was never a law to begin with. It couldn’t be.

                How is that frightening?Report

              • Avatar E.C. Gach in reply to Ryan Bonneville
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                If it’s not a statute to begin with, what exactly is it that the Court is nullifying, or declaring unconstitutional?

                Or for that matter, what is it that’s being enforced prior to being over turned?

                “If Congress passes a law abridging the freedom of the press (whatever that means – Congress will tell us!), the Constitution tells us that that was never a law to begin with. It couldn’t be.”

                In your example, the Constitution doesn’t tell us (last time I checked it has no vocal chords), the Supreme Court does.  And I’m not saying that Congress will both make laws, and decide if they are Constitutional.  Only that Congress will decide if something is in the public good, make it a law, and then have the SCOTUS decide if it is allowable given the restrictions articulated in the text of the Constitution.

                And wherein the Constitution offers no guidance on an issue, like what to do about burning flags, SCOTUS shall deffer to democratically elected bodies on that question, or established common law. 

                Otherwise, the SCOTUS becomes much more actively partisan, and is also not subject to any democratic authority but its own (since even the Justices must decide things by a vote).

                If we are to decide issues on which the Constitution is silent, contradictory, or inconclusive, better to do so via democratic means where partisan ideology can be voiced and debated by everyone rather than by then the partisan tendencies of whoever is on the Supreme Court at the time.

                I ask you this Ryan.  If instead of the Supreme Court, it were 9 individuals chosen at random, by lottery, every year, would you feel better or worse about the power wanted vested in them?Report

              • Avatar Ryan Bonneville in reply to E.C. Gach
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                We’ll go in reverse. I would feel considerably worse. The Supreme Court justices are, by and large, experienced and learned people, who are vetted by the executive who appoints them, and then additionally vetted by Congress (the representatives of the people). Qualification is a real thing, and these people have it. I’ve met the random person; he tends to think the First Amendment is totally cool with preventing the construction of a Ground Zero Mosque. He can’t even read the Constitution, let alone tell me what it means. To be fair, the average SCOTUS justice is considerably more comfortable with state power than I am; the average American citizen makes them all look like peacenik hippies.

                On the rest: I think you are simply incorrect that the Constitution gives us no guidance on what to do with burning flags. Moreover, I think it’s ludicrous to draw so circumscribed a circle around the words in the text that you would essentially require a new amendment every time a new issue came up. “Sure, we passed an amendment making it constitutional to burn the flag, but what about burning your bra? The Constitution is silent!” You may as well not have a Constitution. I will allow that this may actually be your ultimate goal.

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              • Avatar E.C. Gach in reply to E.C. Gach
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                says:

                Is there a law somewhere against burning bras?  Until such time as there is, I’m not worried.  Besides, is the bra mine?  Then issues over what I can and can’t do with my property preceed any concerns about speech.

                Not to mention that none of these things ARE speech.  It doesn’t matter what I feel, the document doesn’t protect them.  So if we care, yea, we better do something electorally about it.

                And let’s not kid ourselves, judges are partisan appointments. 

                As for random people and Ground Zero Mosques.  Do you think if that issue had made it to the Court, a 9-0 ruling would have been issued?  I think not, in which case it’s possible, or even probably, that some of these randoms are already on the Court.  In which case I am as terrified as you that any one individual, with all of their prejudices and arbitrary opinions, could be given so much power.Report

              • Avatar Ryan Bonneville in reply to E.C. Gach
                Ignored
                says:

                It’s the “we” part of this where you lose me. Who is “we”? Is there a mouse in your pocket? What makes you think the majority are going to be with you on any particular issue? Are you okay with the fact that, were you a woman, or black, or Muslim, your rights (under the system you support) would be radically reduced and subject to the whims of people who might just plain not like you at all?

                To be fair, I think the decision would have been, at worst, 8-1. I’ll take those odds over a lottery any day. Your claim is that the Supreme Court has the power to arbitrarily do all these things to you, but it remains the case they are by far the least likely branch of the US government to actually do any of those things. I can’t for the life of me figure out how the judicial branch scares you more than the other two, which are basically in the business of fucking you at all times.Report

              • Avatar DensityDuck in reply to E.C. Gach
                Ignored
                says:

                “I’ve met the random person; he tends to think the First Amendment is totally cool with preventing the construction of a Ground Zero Mosque.”

                Just like that Amendment is totally cool with preventing a religious organization putting up monuments on the side of the road, right?Report

              • Avatar Jason Kuznicki in reply to Stillwater
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                says:

                As I understand it, the argument runs like this:

                1.  Try all you like, you won’t get away from a substantive element to your due process thinking.  Why do we have this procedure (jury trials) rather than that procedure (trial by combat, or flipping a coin)?  Because we consider jury trials to be more fair.  That’s a substantive reason for a procedural process.

                2.  This is the harder part of the argument, because I’m not sure it’s fully justified logically from (1) — given that we all have a substantive component to our due process thinking, we should not be afraid when we ask about the content of enacted legislation rather than just the manner in which it is processed through the legal system.  Even the fairest jury in the world might fail if it’s asked to rule on the crime of heresy.

                3.  To bolster (2), let’s consider that many provisions in the Constitution actually do aim at preventing substantively unfair laws.  The First Amendment is one of them; the Bill of Attainder clause is another.  We deem laws that violate these provisions to be substantively unfair.

                But there’s a problem:  We can’t possibly write down and formally exclude every last procedure or type of law that some unfair and very clever person might think up in the future.  These might be every bit as unfair as an established religion or a bill of attainder, and we are defenseless against them — unless we recognize that the courts have some power here, we are stuck with em.  Forever.Report

              • Avatar Stillwater in reply to Jason Kuznicki
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                says:

                These might be every bit as unfair as an established religion or a bill of attainder, and we are defenseless against them — unless we recognize that the courts have some power here, we are stuck with em.  Forever.

                Yeah, it’s a bit like a who guards the guardians problem in that judges, and Justices even moreso, have the power to determine the scope of the law. EC’s worry is that the ability to do so restricts the role of the legislative and therefore limits the extent to which laws are democratically determined. Having Justices be the final arbiter of the law accords them a unique power outside the idealized checks and balances which our government is functionally dependent upon – at least insofar as consent and ‘the will of the people’ is concerned.

                Sandufer answers this worry to some extent. Justices (and judges) make decisions based on a reasoned argument derived from the substantive content of existing law, arguments that can be publicly reviewed and challenged in courts or the legislatures. This limited check on judicial decision-making can cut both ways, of course. It’s a necessary part of determining the legitimacy of any specific piece of legislation, but it accords Justices a power to imbue their decisions with normative or even idiosyncratic content, content which is neither  procedural nor substantive and therefore ought to be excluded from decision-making.Report

  2. Avatar Ryan Bonneville
    Ignored
    says:

    I find the argument that “procedural” due process really is just a subset of “substantive” due process especially interesting and compelling. It’s very well-stated.Report

  3. Avatar BlaiseP
    Ignored
    says:

    One of the problems we face in this Substantive versus Procedural Due Process debate is how dependent we’ve become on the case law.    It’s rather like a badly organized closet, with sixty shirts on the same hangers of the Commerce Clause and Fourteenth Amendment.   It’s like the relationship between the fairly-straightforward Torah and the endlessly complex and divergent Talmud which surrounds it.

    To me, it’s a pointless distinction.   The law is what the courts say the law is:  don’t look to Congress to make laws to clarify these matters or for that matter, do anything on this subject.Report

  4. Avatar DensityDuck
    Ignored
    says:

    Regarding the Cato article:

    First:  What, no mention of Kelo?

    Second:  Sandefur appears to accept the Supreme Court’s “constitutional silence” reasoning for limits on activity.  If that’s the case, then the same reasoning applies to the content of laws passed–that is, there are many restrictions in the Constitution and the Amendments regarding the content of laws passed, but those restrictions are explicit–that is, other content is not discussed.  And, therefore, would appear to be subject to the same “constitutional silence” that precludes the invention of a line-item veto.Report

  5. Avatar DensityDuck
    Ignored
    says:

    Another thing I’ll say:  There is absolutely no process–past, present, or potential–that cannot be subverted by bad faith.  It’s always possible to cheat–to creatively interpret, to attack the margins, to selectively enforce–even when you are conforming to the exact letter of the law. 

    Which goes back to a long-standing beef I have with Pat Calahan, which is:  Pointing out that a solution can be subverted or ignored is not an argument against that solution, because any solution can be subverted or ignored.  What matters is how well it works when it’s implemented by people who want it to work–and how easily bad-faith actions can be corrected.

    If I can get a bad law nullified by democratic means, then the fact that bad laws can be passed is somewhat less of a criticism of the democratic process.Report

    • Avatar Patrick Cahalan in reply to DensityDuck
      Ignored
      says:

      What matters is how well it works when it’s implemented by people who want it to work–and how easily bad-faith actions can be corrected.

      I agree with this.

      I think where you and I butt heads is… huh, now I’m not sure.  Maybe we just disagree on how well it can work when implemented by people of good faith… *and* how easily bad-faith actions can be corrected.Report

  6. Avatar Burt Likko
    Ignored
    says:

    Where I wind up taking issue with Sandefur is his contention that bad laws are not laws at all. Seems to me that if Congress observes the appropriate procedural processes in acting, any act of Congress is law by definition. Let’s say the House and the Senate properly introduce and by procedurally appropriate roll call votes enacts H.J.R. 1001, Establishing Baptist Christianity as the national religion of the United States of America. The President fails to veto the H.J.R. 1001, and Congress remains in session. Procedurally, this looks like it’s become a law, although it’s uncontroversial child’s play to see that this law violates the First Amendment.

    I say, this is now a law despite its blatant and obvious contradiction to the Constitution. Sandefur would say no, this isn’t a law, it’s something else. As I see it, it would falls to the judiciary to step in and say “H.J.R. 1001 is an unconstitutional law, and we, the unelected judges, declare it to be void.”* At that point, it stops being a law. Sandefur would say it was never a law in the first place.

    In my construct (well, it’s not just mine by any means, but please indulge my vanity here), the law is malleable and compared to successive layers of laws of superior effect, the topmost such layer being the Constitution. The Constitution is itself a form of the positive law, albeit one given supremacy over the others. The Constitution is malleable as well, just not as malleable as the rest.

    Sandefur characteristically takes the natural law approach here, which requires him to posit the existence of an ineffeable, durable sort of Superior Justice to which the positive law either molds itself or defies; if the positive law defies Superior Justice, it is not truly law. Which presumably means it may and in some cases should be defied. To me, this seems an invitation to a blend of anarchy and judicial gridlock, as individuals decide for themselves whether each particular positive law conforms to their individualized visions of Superior Justice and society must somehow (probably judicially) weigh whether each such individual’s contentions are valid.

    Either way, you need judges to compare the challenged legislation to something else, and both create room for subjectivity, interposition of judicial preference, and both demand a system in which superposition of counter-democratic ideas that nullify the apparent wishes of the majority of the electorate can prevail. But I think my way provides for a greater amount of certainty and predictability, and at the end of the day, it provides for more control by the citizenry and more freedom to the citizenry.

     

    * Under existing Federal standing jurisprudence, it’s not clear that there is any person or entity in existence who would be able to make a claim that H.J.R. violates the Establishment Clause, at least insofar as I have drafted the hypothetical Act of Congress to be a completely toothless declaration. But that’s a different issue.Report

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