The rule of law requires that the due process of the law be respected. However, before this can be done it must first be understood what ‘due process’ is. In this regard there has been great confusion, particularly in the United States.

True due process

The due process requirement first appeared in the Magna Carta (1215) as follows:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

This was adopted into the United States Constitution to bind the federal government in the Fifth Amendment:

No person shall … be deprived of life, liberty, or property, without due process of law …

and the state governments in the Fourteenth Amendment:

No State shall … deprive any person of life, liberty, or property, without due process of law …

These formulations were an attempt to require that the rule of law be applied in all cases. They require that the law (be it the constitution, legislation, or Common Law) always be applied methodically and never be ignored. Thus, when a murderer is apprehended, even if he is caught red-handed, he cannot simply be shot in his cell by a policeman. Instead, he must go to trial, with all the proper formalities being observed along the way. As U.S. Supreme Court Justice Hugo Black observed:

For me the only correct meaning of that phrase [due process] is that our government must proceed according to the ‘law of the land’—that is, according to written constitutional and statutory provisions as interpreted by court decisions. The Due Process Clause … in effect states that our governments are governments of law and constitutionally bound to act only according to law. To some that view may seem a degrading and niggardly view … But that criticism fails to note the historical importance of our constitution and the virtual revolution in the history of the government of nations that was achieved by forming a government that from the beginning had its limits of power set forth in one written document that also made it abundantly clear that all governmental actions affecting life, liberty, and property were to be according to law. (Dissenting opinion in re Winship, 397 U.S. 358 (1970).)

Regrettably, the Supreme Court has seized on the due process clause as a pretext to rule the United States from the bench according to the justices’ own views. This is the antithesis of what was intended by the framers, as Justice Black explained:

For years our ancestors had struggled … to make certain that men would be governed by law, not the arbitrary fiat of the man or men in power … it was, in my view, in order to insure against such actions that the Founders wrote … in the historically meaningful phrase ‘due process of law.’ The many decisions of this Court that have found in that phrase a blanket authority to govern the country according to the views of at least five members of this institution have ignored the essential meaning of the very words they invoke. When this Court assumes for itself the power to declare any law—state or federal—unconstitutional because it offends the majority’s own views of what is fundamental and decent in our society, our nation ceases to be governed according to the ‘law of the land’ and instead becomes one governed ultimately by the ‘law of the judges.’. (Ibid.)

The due process clauses do not declare any principles or define any rights; they simply require that those laws which already exist be applied. The two currently dominant schools of thought in the United States (so-called Procedural Due Process and Substantive Due Process) are therefore both wrong as they both suggest that a vast number of rights are imported by inference through the due process clauses.

Procedural due process

This theory holds that various well-accepted procedural safeguards are incorporated by the due process clause. While there is no doubt that many of these safeguards are essential elements of freedom, they must have proper legal foundations before a judge can claim that they are law. Absent their express incorporation in the constitution, they can only have legal basis in legislation or the Common Law. If they are mere creations of the Common Law then they cannot be used to invalidate legislation—as that would breach the hierarchy of laws.

If duly enacted legislation expressly breaches a long-held Common Law procedural safeguard, then the court must regard the safeguard as lost. If the people are outraged by the injustice, then they may instruct their representatives to repeal the legislation, or they themselves may pass repealing legislation by initiative, or they amend the constitution. However, if the judges are outraged, they must suffer along with everyone else who disagrees with the statute. They have no more power to overthrow it than any other citizen.

Some might argue, “As long as they are good laws, who cares how they are justified?” However if benevolent legislation made by Supreme Court judges is tolerated, if it is allowed to overrule both the constitution and the people’s wishes as expressed through their legislation, there can be no basis for contesting bad legislation made by Supreme Court judges.

Substantive due process

Under the banner of ‘substantive due process’, the Supreme Court has repeatedly purported to make substantive additions to the Bill of Rights. For example, the court decided married couples had the constitutional right to use contraceptives. This was pure fabrication. Contraceptives were not even invented when the Constitution was written. There is no doubt that from a natural law perspective married couples do have the right to use contraceptives, and so legislation which forbids it is a disgraceful violation of individual liberty. However it is chicanery to claim such legislation violates the constitution.

The proper remedy to such legislation is to urge its repeal. If the legislators refuse, vote them out and appoint new agents, or repeal the law by initiative. If appointed legislators persist in passing such laws, then change the constitution. But the Supreme Court should never abuse its trust by declaring it has the right to repeal bad legislation. That right belongs to the people when they exercise their sovereign right to change their legislative representatives, pass legislation by initiative, or alter the constitution.

This article is an extract from the book ‘Principles of Good Government’ by Matthew Bransgrove