I’ve been defending a kind of reasoning, not any particular court decision. Thus it’s a bit beside the point to argue that the Court decided, say, Lawrence v. Texas, or Kelo v. New London, or even Dred Scott, rightly or wrongly. The point is that the Due Process of Law Clause requires courts to analyze whether the infringement on a person’s life, liberty, or property has been done in a lawful or non-lawful manner—and in making that decision, the court cannot avoid the ultimately value-laden analysis of whether the government’s act includes those elements (generality, rationality, public-orientation, and so on) that distinguish law from a mere act of force.
Ultimately, even many of those who say that the Due Process Clause only promises procedural protections are still doing just this analysis. Even those who think that the Clause only protects your right to a trial, for example, would probably concede that a coin-toss is not a “trial.” Why not? Because it’s arbitrary: it lacks the elements of fairness that make something a trial. And look at Prof. Rosenthal’s comments on Lawrence and Kelo. The statute in Lawrence, he argues, was not arbitrary, and neither was the condemnation in Kelo. I disagree, of course, but this is a substantive due process argument; the point is that the Due Process of Law guarantee requires us to have just that debate.
The reason is that the basic seed of everything we call “the rule of law” is the recognition of a gap between Law and the ruler’s Will. As in the famous Euthyphro dilemma, when such a gap is recognized, there must be criteria for determining which of the ruler’s actions do, and which do not, qualify as law. People can then deliberate about those criteria, and attempt to apply them in principled ways. And as that regime becomes more complicated, those criteria will interact in a matrix of increasing complexity. Some of these “rules of recognition” can be called procedural (a bill must receive a majority vote in both houses) and some can be called substantive (no bill establishing a religion is valid), but either way, in determining whether the government act qualifies as a “law” will require at least some determination of what law really means. And as Lon Fuller so beautifully explained, that is a question that can’t be answered without resort to normative considerations—many of which will be implicit, unspoken but inherent restrictions on the lawmaker’s power. That, in turn, means the judges, whoever they are, must make some value-laden decisions about what sorts of government acts do and do not deserve the appellation “law.”
Sadly, in modern times, it’s popular to declare that law simply is the will of the ruler, and that any more nuanced understanding of the subject is just an intellectually dishonest game, and one that clashes with democratic values. It’s sad that such simplistic cynicism is taken as a serious intellectual position, since as a matter of logic, it cannot be the case that the will of the ruler is the law. Take my still-unanswered question about whether an unintelligible statute is law. Where law is identified with the will of the ruler, the ruler becomes a kind of solipsist; power becomes an undifferentiated, impenetrable mass, making discussions over legitimacy and lawfulness literally impossible.
Consider some of the great literary depictions of lawful versus arbitrary rule. In the classic Twilight Zone episode “It’s a Good Life,” the villagers are governed entirely by Anthony’s will. Their society may be called many things, but it cannot rightly be called a lawful rule. Neither can the hellish village of Shirley Jackson’s “The Lottery,” even though it is governed by a regular, orderly procedure—a procedure that is utterly arbitrary and unreasoned, and exists solely because it’s always been that way. In both of these stories, law is a mere command, ultimately the ruler’s senseless ipse dixit. When the ruler governs by mere will, he may call his decrees “law,” but they are not law in fact—they are not general principles relating to the public good. By contrast, we see in The Oresteia the beginnings of lawful rule in the marriage of the passions with reason—not the domination or command of the passions, but a marriage, presided over by Athena and conducted through the medium of Persuasion. This is crucial, because law contains an element of reciprocity and of at least rough equality. Law is not an order; it is a promise. It is not mere will; it is reason. As Aristotle said, a lawful government “ha[s] a regard to the common interest [is] constituted in accordance with strict principles of justice,” whereas “those which regard only the interest of the rulers are all defective and perverted forms, for they are despotic, whereas a state is a community of freemen.”
Our Constitution was written light of this difference between lawful and non-lawful rule. It’s an attempt by the people to give law to themselves; an effort by the people to bind themselves while exercising their own power at the same time. That’s a paradox, but the framers attempted to resolve it with a multilayered process whereby the people indirectly choose judges and entrust them with the duty of enforcing the Constitution even when the people themselves might not want it enforced. Calling them “unelected judges subverting the will of the people” is really a demagogic way of mischaracterizing what judges do in such cases. Yes, they make wrong decisions—sometimes even corrupt ones. But that doesn’t mean the theory of substantive due process, an idea at the heart of so much that is great in the common law tradition, deserves to be treated with contempt and ridicule.