George WIll: Town demands substantive due processBy GEORGE WILL
December 12. 2015 8:47PM
If Pagedale, Mo., is a glimpse of the future, the future is going to be annoying. Pagedale might represent the future of governance unless some of its residents succeed in their lawsuit against their government. If they do, it will be because they successfully invoked the principle of substantive due process.
Pagedale is 1.19 square miles of St. Louis County. Approximately 93 percent of its 3,000 residents are African-American and about 25 percent live below the poverty line. There is not much of a tax base for their government. But supposed necessity does not confer constitutionality on Pagedale's decision to budget on the assumption of a steady blizzard of capricious fines.
Pagedale residents are subject to fines if they walk on the left side of a crosswalk; if they have a hedge more than three feet high, a weed more than seven inches high, or any dead vegetation on their property; or if they park a car at night more than 500 feet from a street lamp or other source of illumination; or if windows facing a street do not have drapes or blinds that are “neatly hung, in a presentable appearance, properly maintained and in a state of good repair”; or if their houses have unpainted foundations or chipped or aging layers of paint (even on gutters); or if there are cracks in their driveways; or if on a national holiday — the only time a barbeque may be conducted in a front yard — more than two people are gathered at the grill or there are alcoholic beverages visible within 150 feet of the grill.
All this and much more is because Missouri's Legislature, noting excessive reliance on traffic tickets, put a low cap on the portion a community could raise of its budget from this source. So now 40 percent of Pagedale's tickets are for non-traffic offenses. Since 2010, such tickets have increased 495 percent. In 2013, the city collected $356,601 in fines and fees. But Pagedale's misfortune might be America's good fortune now that the constitutional litigators from the Institute for Justice are representing some Pagedale residents.
The institute argues that the city is subordinating the administration of justice to the goal of generating revenue, even limiting court hours in order to cause people to fail to meet requirements, thereby subjecting them to more fines. But the city's pecuniary interest in particular judicial outcomes, which creates an appearance of bias, is not the crux of the argument that the city is violating the 14th Amendment guarantee that Americans shall not be deprived of life, liberty or property without “due process of law.” The entire nation should hope that this small city's pettiness will be stopped by a court that says this: The Due Process Clause, properly construed, prohibits arbitrary government action, particularly that which unjustifiably restricts individuals' liberties.
That is, the Due Process Clause is not purely about process. As Timothy Sandefur of the Pacific Legal Foundation writes, what distinguishes due process is an outcome that is not arbitrary. Granted, the Constitution's text does not explicitly infuse the concept of due process with substance. But there are implicit limits on government power, limits inherent in the idea of law. As Sandefur says, a legislative act that fails the tests of generality, regularity, fairness and rationality (being a cost-efficient means to a legitimate end) is not a law, so enforcing it cannot be due process of law.
Read as what it is — as the implementation of the principles of the Declaration of Independence — the Constitution guarantees government that secures individual rights by establishing lawful, meaning non-arbitrary, rule. So, in determining whether there has been due process, a court must examine not just the form of a statute or the procedural formalities that produced it, but also its substance. This is because, as Sandefur writes, the Constitution gives priority to liberty, not just to the democratic processes that produce government acts. Again, “the Constitution does not require just any process but due process.” Were “due” simply a synonym for “democratic,” the due process guarantee would guarantee nothing.
Governments are ravenous for revenues to fund the promises that purchase votes. But the governed are resistant to taxes. So governments increasingly resort to arbitrary behavior that is difficult to distinguish from theft. Which is why all Americans have a huge stake in the correct resolution of this case from a small Missouri city.
George Will is a columnist for The Washington Post.