Asking Busybody Judges to Overrule Busybody Legislators

by Matthew J. Franck

As George Will points out in his column today, the small city of Pagedale, Missouri has gotten into the very bad habit of subsisting, for an increasing proportion of its revenues, on fines and fees imposed on its residents.  The habit has reached the point that Pagedale fines people for ridiculous infractions of absurdly invented laws governing minute details of personal behavior or the appearance of their property.

This is a bad business, but unconstitutional?  Contrary to the due process of law, and fit for judicial invalidation?  Will, who reports on an Institute for Justice filing in the eastern district of Missouri alleging such a constitutional violation, doesn’t make the case.  Here is the heart of his argument:

[T]he 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.

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. . . .

Will is right to say that due process imposes “limits inherent in the idea of law” on the action of legislatures, and that “generality” and “regularity” are among those limits.  As I have shown in an article on the historic emergence of “substantive due process,” such norms are what distinguish a law, properly speaking, from a decree in the guise of legislation. But in the entire tradition of Anglo-American jurisprudence prior to the Dred Scott case, there is no judicial deployment of the due process principle to test the “fairness,” “rationality,” or justice of the substantive policy choices of legislatures.  Transforming due process into an all-purpose clause for overturning laws that fail to live up to the moral vision of judges was the work of Dred Scott, and continued in Lochner v. New York, Roe v. Wade, and—most recently—Obergefell v. Hodges.  Conservatives and constitutional originalists should have no truck with this ahistorical, anti-textual jurisprudence, which may occasionally achieve desirable results for political justice but will always traduce the proper limits of judicial power.  (Interested readers can follow a recent exchange I had with Professor Hadley Arkes, who expatiates on Will’s view more thoroughly, through several installments: Arkes1, Franck1, Arkes2, Franck2, Arkes3, Franck3.)

Invoking the Declaration of Independence does not help to make the case for judicial adventurism in this field.  Take it as granted that Pagedale is behaving stupidly, oppressively, and unjustly to its residents (this is obvious).  Even allow that the principles of the Declaration of Independence are offended by the city (this is less obvious).  It simply does not follow that an offense against natural justice is the same thing as an offense against the Constitution, particularly an offense against the very particular norms of the due process clause, to be vindicated by judges who swear an oath to decide cases “arising under this Constitution” in an impartial manner.

There is no persuasive originalist case, not to mention any textual one, for substantive due process.  George Will once knew this.  Timothy Sandefur, on whom Will relies here, has essentially admitted (see “Update 2” here) that the jurisprudence he advocates is not dependent on the language or history of any particular constitution.  But that admission means today’s libertarian advocates of substantive due process are heretical acolytes of Ronald Dworkin—agreeing with his “moral reading” jurisprudence, but disagreeing with the morality he wants to read into the Constitution—rather than the legitimate heirs of Madison, Hamilton, or Marshall.

Will remarks, “Were ‘due’ simply a synonym for ‘democratic,’ the due process guarantee would guarantee nothing.”  But no one who reads the due process clause with attention to its origins and history believes that “due” means “democratic.”  Neither, however, do we believe that “due process of law” is shorthand for “the power of judges to invalidate legislative choices that violate natural justice.”  The Constitution, after all, does contemplate that democracy has some uses.  If the residents of Pagedale, Missouri are being abused by their local government, they might try making a campaign issue out of it.  Their lawsuit in federal district court deserves defeat.


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