Justice Without Process?

Printed from: http://newbostonpost.com/2016/12/18/justice-without-process/

Procedure is a pillar of justice.  

The American Founders knew that an ordered and accepted means of settling disputes and adjudicating disagreements was fundamental to the public good.  In fact, procedure was so important to the Revolutionary generation that the idea was specifically incorporated into the federal Constitution as “procedural due process.”

Process and procedure were enshrined in the legal and political thinking of jurists and statesmen from Benjamin Franklin and John Adams to James Madison and John Jay.  The principle that no deprivation of liberty or property is proper absent “due process of law” was at the center of post-Revolutionary jurisprudence, and the Fourth and Fifth Amendments illustrate that strong emphasis.  In fact, an argument can be made that the entire Constitution is a blueprint for procedural due process in that it details the exact means by which the three branches of the national government are to conduct themselves, describes the scope of their power, and guides their interaction with the states.  It is largely a procedural document.

But the idea of procedure can easily be lost in the zeal to achieve substantive justice.  When we perceive a wrong, and particularly a wrong committed under the color of law, most of us want to see some type of change so that justice can prevail.  But in trying to bring about political or social change, it is necessary to consider more than our individual or collective outrage, and to consult more than our parochial notions of righteousness.  Change must take place in the proper context and through the proper channels.  For genuine justice to prevail, the means of achieving it are as equally important as the ends.

The Founders’ foresight is more pertinent now than ever.  For instance, in the days immediately following the presidential election last month, American intellectuals began to question the “justice” of the Electoral College.  As it became clear that Hillary Clinton would not become the 45th President of the United States, liberals who were once shocked at Donald Trump’s reluctance to declare his support for the eventual victor turned to vilifying the very process that has chosen every president since George Washington.  

While Mrs. Clinton made it clear during the final debate on October 20 that it was unprecedented and “horrifying” for a presidential candidate to question the outcome of an election — she apparently forgot about Al Gore in 2000 — the liberal establishment appears to have no qualms questioning the legitimacy of a president who did not win the popular vote despite that the rules for getting elected have not changed since 1789.  Now, ironically, many of these same voices are now begging the electoral college to “do its duty” and reject the president-elect as unqualified.

Much of this outrage stems from the inability of many American liberals to understand how Mr. Trump was elected in the first place.  To the institutional Left, Mr. Trump is not only unacceptable for a variety of ideological reasons, but he is more horrifying than the prospect of a contested transition of presidential power, which is why so many of them see fit to protest in the streets and question the very structure of the electoral system.  

The lesson here is clear: if your side fails to win the debate, change the structure of how that debate is framed by questioning the fairness of the system itself.  For Mrs. Clinton’s supporters, the very concept of justice is offended by the notion of a Trump Administration.  The only way to explain the triumph of this injustice, they believe, is to attack the fundamentals of the electoral process.  To them it only makes matters worse that Mrs. Clinton won the popular vote by more than two million — even though that number has nothing to do with the election’s legitimacy or outcome.

But why should we reject the will of a democratic majority when that very majority believes they represent the voice of “justice”?  I think a reasonable answer is that our country is a nation of laws designed to avoid the ideological winds of occasionally intemperate majorities.  The Constitution is designed to allow for change, but intentionally makes such changes difficult to enact, even if they are warranted.  The Constitution protects us against the ephemeral passions of the mob; yet under this system, there is opportunity for cautious reform.

he Founders understood that substantive justice can’t exist long term without proper procedure, and that although the process may not always be perfect, the alternative is pure anarchy.  When we question the Constitution itself to accommodate our day-to-day political preferences, we do ourselves and our posterity a great disservice.