April 27, 2012 – Essay #50 – Amendment XIV Due Process Protection – Guest Essayist: Professor Will Morrisey, William and Patricia LoMothe Chair in the United States Constitution at Hillsdale College

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Amendment XIV, Section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

What Is “Due Process of Law”?

Enacted in 1868, the Fourteenth Amendment numbers among the “Civil War amendments”—those that aimed to settle the relations of the states to the federal government. First among the much-controverted issues prior to the war was slavery, abolished throughout the nation in the Thirteenth Amendment. But slavery had thrived underneath the constitutional carapace of “states’ rights.” If state governments were not restrained from abridging the citizen rights of the former slaves, for example, what would prevent them from reintroducing de facto racial servitude in some other guise?

For example, why could the states not practice oppression against any group it chose to target by making it subject to arbitrary arrest or imprisonment or to summary judgment without benefit of trial? The Constitution prohibited the federal government from doing such things, but what about the other levels of government?

Thus the Fourteenth Amendment says that no state may “deprive any person of life, liberty, or property, without due process of law.” Readers of our founding documents will find that language very familiar. Rightly so: the phrase reproduces the language of the Fifth Amendment, which itself follows the famous words of the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” Jefferson’s words follow those of the English philosopher John Locke, who identified life, liberty, and property as fundamental natural rights.

This means that the Framers took natural rights—rights endowed by our Creator—and made them into civil rights—rights formally recognized in our fundamental man-made law. Designed and implemented by human beings, governments exist in order to secure our natural rights, and one way to secure those rights is forthrightly to enunciate them in the supreme law of our land, ratified by the only sovereign body under God Americans recognize—themselves.

But if governments are instituted to secure our natural rights against those who would violate them, by what right does government punish the violators? Does effective punishment not require the government to deprive criminals of their property—by fining them—their liberty—by imprisoning them—and even their lives—by executing them for the most heinous offenses against our natural and civil rights? How can government do this without contradicting itself—without violating the very rights government is supposed to secure?

The basic principle of justice is to repay good acts with good acts, bad acts with bad acts. (The basic law of charity is to repay bad acts with good acts, but charity goes beyond justice). The `bad’ or rights-depriving acts of just punishment are actually good in the sense that they punish those guilty of committing bad acts against the good. This repays the bad in their own coin and may deter those who are thinking of committing bad acts. Justice metes out equal things to equals: good things to the good, bad things to the bad.

But how do we determine who is guilty of a bad act? Parents mete out what might be described as informal punitive justice to their misbehaving children. This usually involves the quick procedure of look, see, and swat. Children do not deserve a jury of their peers, primarily because such a juvenile jury would be as foolish and unruly as they. Adult fellow-citizens are a different matter. As persons capable of ruling ourselves by reason, we deserve more careful treatment. The care we owe to children entails bringing them up to rule themselves by reason, preferably before they get big enough to do serious damage. The care we owe our fellow citizens entails treating them as such—as persons who should know better than to behave as if auditioning for the next episode of Cops.

This is where due process of law comes in. As an American citizen, your civil rights may not be abridged as punishment for any crime without the observance by the executive and judicial authorities of well-established legal procedures, including a list of the charges against you and the opportunity to defend yourself against them in court. That is, any punishment involves the government in depriving the accused of some important civil right, a right it normally would be entrusted to secure. To do so fairly, the government must `make a case’ against you—persuade a reasonable judge or jury of your peers that you deserve such deprivation.

Today, this form of due process is often called “procedural due process”—a rather odd-sounding redundancy. What process is not procedural? This locution is meant to distinguish adherence to proper legal procedure from another thing called “substantive due process.”

Strictly defined, due process of law limits executive and judicial power to acts that insure a defendant’s fair chance actually to defend himself civilly, without needing to defend himself physically by running away or fighting back. Due process helps to make civil society civil. Substantive due process limits not only executive or judicial power but legislative power. Substantive due process holds that Congress and (with the Fourteenth Amendment) the state legislatures may no longer pass laws that abridge your life, liberty, or property. For example, an American version of the infamous Nuremberg Laws of Nazi Germany, depriving a particular religious or ethnic group of their civil liberties and thus rendering them less than fully-protected citizens, would clearly violate the civil rights to liberty and property of all members of that group. The “substantive” in the phrase “substantive due process” thus refers to the substance of a given law itself as distinguished from the procedures employed to enforce the law. Due process initially held that you could not be deprived of your civil rights to life, liberty, and property without proper legal procedures; it now meant that legislatures could not deprive you of such rights in the first place. This assurance may seem unnecessary because those rights are already protected by the Constitution as a whole. Be that as it may, the assertion of substantive due process causes a serious dilemma because it returns the country to the original problem that due process was intended to solve: if legislatures cannot secure the rights of the good by enacting laws that injure or `correct’ the bad, how will the rights of the good be secured at all? It seems that the very substantiality of substantive due process contradicts justice itself.

Having caused the problem, the Court soon got round to re-solving it, this time at the expense of the legislatures and of the people, and to the aggrandizement of themselves. In its first move, habitual since the 1940s especially, the Supreme Court has claimed that due process places the states under the requirement to adhere not only to those amendments (such as amendments thirteen and fourteen) that specifically restrict the states, but also to adhere to the whole Bill of Rights, which of course originally applied to the acts of the federal government only. So, for example, the first amendment ban on religious establishment by the federal government left state religious establishments undisturbed; now, the courts could invalidate any such establishments by invoking the due process clause understood “substantively” and not just “procedurally.”

This vast expansion of the scope of the due process clause solved the problem of the protection of our civil rights, but only at the expense of intensifying the problem of American self-government. In practice the Court’s behavior has proved highly selective. In the case of the Second Amendment protection of the right to bear arms, the Court has often chosen to overlook state restrictions on that right. At the same time, the Court has at times deployed substantive due process in establishing hitherto unknown and entirely unsuspected “constitutional rights”. It has done so by making a second move, namely, to widen the definition of the rights to life, liberty, and property. The Court-asserted rights to abortion (established in Roe v. Wade [1973]) and to homosexual activity (established in Lawrence v. Texas [2003]) clearly go far beyond anything the framers of the Fourteenth Amendment could have been thinking of back in 1868. The justices have combined substantive due process with their invention of unenumerated Constitutional rights—seen perhaps most glaringly in the 1965 Griswold v. Connecticut decision (in which the majority opinion claimed that the “right to privacy” existed in the “penumbra” of the right to liberty—an expansive and ill-defined emanation, indeed). The doctrine of substantive due process added to a very broad definition of civil rights has enabled the Court effectively not merely to adjudicate but to legislate—a power previously thought to reside in, well, the legislature.

By placing the states under the entire Bill of Rights, and then by defining “rights” penumbrically (I invent the word for the occasion, imitating the creativity of the distinguished justices in my own small way), the Court has done far more than to abridge the powers of the state governments. It has effectively given itself the power to amend the Constitution. Under the original theory of American constitutionalism, only the people—the sovereigns—held this sovereign power. But now the judges exercise it too, making a portion of the federal government sovereign over the (formerly) sovereign people. While the founders asserted the natural rights and sovereign power of the people to establish civil rights over the government-made rights of Englishmen as the basis of their independence from the Empire, the Supreme Court has effectively revolutionized the American Revolution, making Americans into Europeans, again—the New World back into the Old.

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.

2 replies
  1. Ralph T. Howarth, Jr.
    Ralph T. Howarth, Jr. says:

    This is by far the best articulation and write up I have seen on the difference between what is Procedural Due Process and Substantive Due Process. I preferred to differentiate one as procedural rights in the courtroom and effective rights or results outside the courtroom. For completeness sake, there is a bit of a misnomer or ambiguity going on with the use of the term “civil rights” as well.

    There are the classical “civil rights” and then there are the man-made “rights that are civil” in nature that people have come to associate or identify with that Prof. Morrisey is talking about here. The classical civil rights are also man-made rights; but they are strictly the procedural rights in the court room set in place to help protect one’s natural rights due to a commoners proneness to be ignorant of sophistry of the law…law that, if it be so confusing and complex, is likely harboring an injustice in itself. These classical civil rights can rightly be summed of these three cornerstones:

    Due Process (the rights you have in court to defend yourself)
    Equal Protection (the right to sue somebody and have standing in court just like the person next to you)
    Trial by an impartial jury of peers (people among your domicile who likely will know your character and the character of your accusers who do not have a conflict of interest with judging your cause BUT will be affected by the same laws you are being prosecuted upon.)

    Those are the classical civil rights of old under the English Common Law.

    The English Common Law is the legal basis of US law…a sort of legal dictionary of terms that give meaning to words used in legal speak. But there is another legal basis that is predominantly European seated after classical Roman Civil Law, not to be confused with civil rights. This legal basis is a cousin of a sort to the English Common Law but has a different origin and espouses one big thing that is different:

    The practice of appellate judges to review external opinions such as other government bodies, institutions of higher learning, research centers, studies, et.al., as substantive to a case. This is a bit different than evidentiary hearings; but tends rather to question the law in a similar fashion as substantive due process does but does not necessarily pertain to a review of the “rights that are civil in nature”. The present legal system has become a “mixed law” legal basis that has co-opted the English Common Law by what is called Trial Law (the ongoing record and disposition of courts in how courts arrive or make legal opinions) that now espouses a flavor of Civil Law procedures. This has caused much changing of the effects of legislated law in a fashion much like what Prof. Morrisey describes here because the legal meanings of legal terms on laws that are on the books are misconstrued and derived into something other than what the law making body made the law out to be.

    Reply
  2. Ralph T. Howarth, Jr.
    Ralph T. Howarth, Jr. says:

    Clarification: “Trial Law” meaning “Case Law”.

    As for the “right to privacy” touted in the federal court system, something that does have a semblance of a basis in the A4 right to be secure in your property and your persons, privacy is made arbitrary to interpretation where privacy does and does not trump laws. But A4 does not actually trump any laws other than what is procedural. A4 simply denies the government from depriving someone of rights like privacy without due process of a writ of search or seizure of a just cause by a judge. Once a judge signs that writ, the immutable right is suspended. So the federal court practice of circumventing state criminal law under the rubric of a right to privacy is arbitrary because even the “black and white” letter of the federal constitution still permits by procedural due process the suspension of such rights by a judge, the 14th Amendment notwithstanding. What that federal court has then done is made a right that can be suspended in a limited fashion for a limited time by a judge’s discretion into an absolute right that state laws, state judges, and federal judges cannot touch. Such begs the question: if I cheat on my federal taxes in the privacy of my own home, does privacy then provide cover and immunity from fines from the IRS? Does the 14th exonerate me from EPA prosecution for ejecting freon to the atmosphere on private property? Why or why not? Arbitrary sub-ordination of law to privacy, would it not?

    Reply

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