Washington — If Pagedale, Mo., is a glimpse of the future, the future is going to be annoying. Pagedale might represent the future of governance unless some of its residents succeed in their lawsuit against their government. If they do, it will be because they successfully invoked the principle of substantive due process.
Pagedale is 1.19 square miles of St. Louis County. Approximately 93 percent of its 3,000 residents are African American and about 25 percent live below the poverty line. There is not much of a tax base for their government. But supposed necessity does not confer constitutionality on Pagedale’s decision to budget on the assumption of a steady blizzard of capricious fines.
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All this and much more is because Missouri’s legislature, noting excessive reliance on traffic tickets, put a low cap on the portion a community could raise of its budget from this source. So now 40 percent of Pagedale’s tickets are for non-traffic offenses. Since 2010, such tickets have increased 495 percent. In 2013, the city collected $356,601 in fines and fees. But Pagedale’s misfortune might be America’s good fortune now that the constitutional litigators from the Institute for Justice are representing some Pagedale residents.
That is, the Due Process Clause is not purely about process. As Timothy Sandefur of the Pacific Legal Foundation writes, what distinguishes due process is an outcome that is not arbitrary. Granted, the Constitution’s text does not explicitly infuse the concept of due process with substance. But there are implicit limits on government power, limits inherent in the idea of law. As Sandefur says, a legislative act that fails the tests of generality, regularity, fairness, and rationality (being a cost-efficient means to a legitimate end) is not a law, so enforcing it cannot be due process of law.
The Constitution gives priority to liberty, not just to the democratic processes that produce government acts.
Read as what it is — as the implementation of the principles of the Declaration of Independence — the Constitution guarantees government that secures individual rights by establishing lawful, meaning non-arbitrary, rule. So, in determining whether there has been due process, a court must examine not just the form of a statute or the procedural formalities that produced it, but also its substance. This is because, as Sandefur writes, the Constitution gives priority to liberty, not just to the democratic processes that produce government acts. Again, “the Constitution does not require just any process but due process.” Were “due” simply a synonym for “democratic,” the due process guarantee would guarantee nothing.
Governments are ravenous for revenues to fund the promises that purchase votes. But the governed are resistant to taxes. So governments increasingly resort to arbitrary behavior that is difficult to distinguish from theft. Which is why all Americans have a huge stake in the correct resolution of this case from a small Missouri city.
— George Will is a Pulitzer Prize–winning syndicated columnist. © 2015 The Washington Post