Dispatches from the Creation Wars

Sandefur on Substantive Due Process

Timothy Sandefur has been writing furiously since his return from Memphis on Friday (a trip that made me quite jealous. Memphis is known for two things, blues and BBQ – if there’s a heaven, it must look a lot like Beale Street). If you’re at all interested in constitutional law, his latest essay, on substantive due process, is a must read. He writes:

One strong argument against this theory is that the phrase “no person shall be deprived of life, liberty or property without due process of law” merely requires some fair procedure to be satisfied before a person is deprived of life, liberty or property, and that the procedural requirement is satisfied when the legislature votes on a particular measure. This, indeed, is the argument that courts generally accept today. But suppose that the legislature were to pass a law singling out one particular person and declaring, for instance, that that person’s land shall from now on belong to another person. This is logically indistinguishable from a group of people coming to that person’s home and forcing him off the land with guns and clubs. According to substantive due process theory, the mere enactment of a law cannot constitute due process, because the purpose of the state is to prevent a person from being deprived of his life liberty or property arbitrarily, and nothing in the majority-vote requirement inherently prevents arbitrary action.

Spot on. Without substantive due process, we are left with the notion that as long as there is a legal procedure followed, any violation of a person’s rights are legitimate. Due process cannot merely be a requirement for proper procedure, else there are no limits on government’s power at all.