Sunday, December 11, 2005

Substantive Due Process: an Oxymoron

In my near-continuous discussion of the issue of substantive due process, the doctrine used to make philosopher-kings of the Supreme Court Justices, I have neglected to point out the most obvious criticism of the whole concept.

The Eighth Edition of Black’s Law Dictionary defines substantive law as
The part of the law that creates, defines, and regulates the rights, duties, and powers of parties. Cf. PROCEDURAL LAW.
It necessarily directs us to what is considered the opposite to substantive law. It defines procedural law as
The rules that prescribe the steps for having a right or duty judicially enforced, as opposed to the law that defines the specific rights or duties themselves.
The Fourteenth Amendment guarantees in its text only “Due Process of law.” It says nothing about “Due Substance of law,” as Justices Blackmun, Brennan, and numerous others would have you believe. Substance and process are two completely different things, as different as cow and milking. Back to Black’s, the definition of substantive law includes the following quote:
“So far as the administration of justice is concerned with the application of remedies to violated rights, we may say that the substantive law defines the remedy and the right, while the law of procedure defines the modes and conditions of the application of the one to the other.” John Salmond, Jurisprudence 476 (Glanville L. Williams ed., 10th ed. 1947).
So what’s the problem, Supremes? Do we need to buy a law dictionary for all of you? It’s not like you don’t understand the difference. Granted, the two often overlap, but judges have to sort it out all the time when they apply the Erie doctrine, so it’s not like they don’t know how. And the Court makes no pretense at being confused on the issue. They just create some kind of chimera in the law and call it something analogous to dog-cat, or liberal conservatism, or tasty lite beer.

As Justice Scalia notes in his dissent in Lawrence v. Texas, 539 U.S. 558, comparing a law against homosexual sodomy to laws prohibiting prostitution, adult incest, adultery, and bestiality,
The Fourteenth Amendment expressly allows States to deprive their citizens of “liberty,” so long as “due process of law” is provided . . . .
(Emphasis in original.)

And the best part about the doctrine, from their perspective, is that on its own terms you can’t beat it. No argument that anyone can make can ever sway the decision from side to side because it is completely irrational and subjective. Lawyers (and legislators) are equipped for conventional courtroom warfare, not for tactical nukes and terrorism.

Back to Scalia’s dissent in Lawrence:
Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. . . . [T]he Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. . . . Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. . . . But persuading one’s fellow citizens is one thing, and imposing one’s views in absence of democratic majority will is something else. . . . One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion.

D/P is a not only a common shorthand for Due Process, but is also porn industry slang for “double penetration,” a fitting metaphor for what the Supremes are doing to the Constitution every time they use it.


  1. I agree with most of your interpretations of S D/P (I will give you twenty dollars or a Coors light gift basket if you use your "double penetration" comment on the exam, Pitts will love it...he told us on friday he'll give bonus points for humor and clarity...Which made me think.."Sweet, the difference between an 8 and a 7 will be the 8 used shorter sentences and was more able to be a wise ass about serious issues, but I digress)

    I understand African Americans had the civil rights amendments and were generally not the focus of substantive due process. However, how do we solve other "civil rights" problems without expanding the meaning of those amendments? It seems like the court has to come up with something.

    A Federalist and textualist would probably respond that those problems are for the individual states or the federal legislature under the constitution, not for the Court. But that doesn't solve the problem when dealing with fundamental or civil rights.

    What do we do if a group is being discriminated against and the state and legislature is nonresponsive? Do we tell them, "Tough luck, if it's really a right the people will come around?" I think the court may have a duty in these situations to declare these rights and provide a shield from the interference of invidious state or federal law.

    And as far as the "substantive" due process oxymoron thing, I think it has to do with the grey area between procedural and substantive law. While "due process" naturally sounds procedural we know that procedual laws may have tremendous substantive effect (i.e. statute of limitations).

    S D/P is simply pointing out that these process laws have a tremendous substantive effect. That is, the "substantive" in substantive due process doesn't mean anything. It is just a shorthand way of describing the impact of these procedural rulings.

    I also find it extremely funny that you're arguing semantics because you have chastised me many times for leading discussions into this area.

  2. I'm with moise on this one. Though I don't want to belabor the point, Scalia has a strong tendency to think the things he thinks mostly when they are convenient to his desired outcome, and his record on actual consistency of application of these ideals is tenuous at best.

    Yea, yea, I know, consistency is the hobgoblin of small minds, but, I hasten to add, inconsistency is the harbinger of intellectual dishonesty.

    I think the distinction not only stands, but is a reasonable and helpful one.

  3. What precisely was lacking (or in force)in Texas'other laws which affected the procedural due process rights of those wishing to engage in sodomy legally? Were homosexuals also being deprived of their voting rights? How is a statute of limitations law at all like a ban on contraceptives? Sure, a procedural law may be in force which does deprive one of a right, but the question then is does that procedural law satisfy the constitutional requirement of D/P? I am confused. What this doctrine says is this, right?: "It doesn't matter that Todd is a full-fledged member of the body politic, if Nebraska passes a law which says that he cannot have relations with his wife more than once a year, the Supreme Court will strike it down." What's wrong with the Nebraska law? Well, it's outrageous and stupid, but, so long as I (and others similarly situated) haven't been deprived of "due process of law", then it's all good I say. How long would a law like this survive? We'll never know, b/c even if it gets passed (let's hope not) the Supremes will be there help us! And because of the different moral/religious constitution of this or that justice and how many like justices there are, the cases will come out differently. I say, if a state wants to prohibit the teaching of German to its schoolchildren, then let it. Who cares?!

    Scalia is surely one of the more consistent Justices, I would say. Thomas, too, then Stevens, I think. How Scalia wants a case to come out, I think, is affected a lot by this conviction of his: "If our decision will import more power to this court, then I don't like it one bit." Furthermore, the thing Jon is concerned about is not something Scalia dismisses. I think Scalia sees a civil war coming and it may as well be sooner than later (like, in 50 or so years instead of 100) so why should the Supreme Court be the thing to prevent it, which it certainly cannot do forever and, furthermore, it is unconstitutional for it to do it anyway! But we can say, "Why should we wait for the political process when we have the Supreme Court to mollycoddle us?"

  4. Hey, Kelly! Totally off topic: You're good with naming things, right? At least, I think the name "Full Metal Attorney" is an awesome one, and I always love your movie spoof titles.

    I'm doing a bit of a redirection of my site (Find the long-winded details on my most recent post), and I decided I need a good name for my blog. I have a few ideas, but just thought I'd ask you if you could think of anything!

    And if you don't get this by Saturday, I'll see you there (once again, congrats!)!

    P.S. If any of your readers have ideas, I'd love to hear them as well! I'll certainly consider and apreciate any suggestions. Thank you in advance, everyone, for your help!

  5. Todd, my man, limiting the Court's authority based on a personal view or philosophy isn't a legal principle, but a political one.

    If Scalia's consistency is merely political, then he's an activist judge. Which means he isn't impartial. Which is precisely what we don't need on the Court.

    Just because he's being activist in a conservative direction doesn't mean he's not an activist, nor does it make it proper.

  6. I see nothing in my comment above which should lead one to think that I think Scalia is driven by political motives. Far from it. I think Scalia is rightly annoyed whenever the Court gives more power to itself, to Congress, or to a group of citizens than the Constitution would grant them.

    I don't care one whit who's an activist and in what direction so long as the decision rests soundly on the Constitution.

    If you'll permit me to wax philosophical for a bit, I really think the Supreme Court suffers from the same malady that our American culture in general does. And that is an outright abuse of language. I don't think the abuse is intentional, but rather simply the result of taking the word of a few so-called experts as fact. "Give the people a new word, and they believe they have a new fact," is how Willa Cather put it if I remember correctly. I understand that the Court is not a philosophy department, but to argue that philosophy doesn't make its way into the Court's decisions, indeed, is expressed in many of them, is silly, is it not?

    But since taking the ConLaw exam Wednesday I have formed what I think is a healthy perspective of myself shaped by a passage from the Old Testament, probably Proberbs.

    "I will not worry about matters too deep for me."

    What I mean is, I love to talk about his stuff, but I may be, like Donny in "The Big Lebowski" . . . out of my element.

  7. Until the day I die, I will always feel that SOL is a procedural law and not a substantive law. I think the relevant case from Civ Pro was York. Im sure that if someone researches the history behind that case, then there was a political reasons the judges decided the way they did.

    Like to say more, but I have to study for the Bar. Good luck!