The distinction between procedure and substance makes no sense. The due process clause means the government may not arbitrarily take away your life, liberty, or property. What we call procedural due process is a subset of this overall guarantee. Procedural rights are just one way to protect you against arbitrary government power. But an arbitrary law—such as the one allowing bureaucrats to take away Suzette Kelo’s home just because they thought it should be given to someone else—is not made less arbitrary just because government grants a hearing. Due process of law incorporates certain substantive principles such as generality and fairness. An arbitrary government rule is not properly considered law, and you’re entitled to lawful government. A government that can take away your home and give it to someone else who has more political influence is a government not of law, but of arbitrary rule. Such government action properly is restrained by the due process of law clause. —Timothy Sandefur
Posted on: Tue, 04 Nov 2014 11:55:01 +0000
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