Constitutional Philosophic Concepts

PHILOSOPHIC CONCEPTS OF LIBERTY, DUE PROCESS, AND EQUAL PROTECTION
"Liberty lies in the hearts of men and women; if it dies there, no constitution, no law, no court can save it." (Judge Learned Hand)

Liberty is a word with many meanings. In American history, liberty derives from concepts as far back as the Roman republic or empire, and freedom (often confused with liberty) derives instead from Germanic/Anglo tribal roots (Fischer 2004). Every language in the world has a word for "liberty." It is mentioned within the U.S. Constitution several times: "To secure the blessings of liberty...;" "Life, liberty, and the pursuit of happiness;" "Life, liberty, and property." The term is often used to describe a composite of specific liberties, including the following:

Liberty has a history which shows variation with time and place. In England prior to the Habeas Corpus Act (1679) a person could be seized and kept in prison indefinitely without trial or hearing. Freedom of conscience was unheard of prior to the Protestant Reformation. The rights to vote and hold public office were practically unknown before the 19th century. Liberties are acquired through the joining of like-minded individuals to gain special privileges for themselves. The most familiar event was the Magna Carta when English barons in 1215 wrested from King John certain freedoms that in time they had to share with the rest of the people.

The history of liberty has always involved groups of people winning immunities from external control. In the middle ages, artisans and craftsmen, by agreements with their feudal overlords, obtained release from certain feudal dues and bonds, gaining a limited freedom to carry on trade and manufacture, which formed the nucleus of a middle class and the foundation of capitalism. Our founding fathers wanted America to be capitalist and to have a large middle class, and that's why so much of liberty in the American context is all about freedom of commerce and contract. The feminist movement is a good example of the attempt to gain liberty in this sense. Other minority groups haven't gotten past the stage of acquiring civil liberties.

The acquired nature of liberty -- its dependence on conditions of time and place -- also makes it particularly susceptible to loss. Liberties have to be maintained, defended against encroachment, or else they become curtailed, restricted, and eventually disappear. Even the best of governments do this in times of national emergency when rights are suspended, as was the right of habeas corpus by President Lincoln during the Civil War. Democracy is a term describing a process by which citizens compete for scarce resources and power to turn their preferences into law. It's a game of numbers which assumes equal footing at the starting line and that wins and losses will be more or less evenly distributed. Our founding fathers knew this and that's why so many personal and political liberties are guaranteed -- to avoid the specter of perpetual winners at the expense of perpetual losers. Tyranny by the majority is just as bad as tyranny by the minority. In America, democracy has always been representative (indirect vote) rather than plebiscitary (direct vote). The distinction is therefore made between a democracy and a republic. The U.S. is not a true democracy (Dahl 2002) because it's a republic, or more accurately, a constitutional republic, and has certain features of republicanism. Sometimes a republic is characterized as a representative democracy, but there are inherent "defects" or undemocratic tendencies with such a system. For example, in a republic, people don't vote or have direct input into decisions everyday, as they would under a true democracy. Instead, they elect representatives who make the hard decisions on each and every issue. The only way to ensure liberty in a constitutional republic is by a system of checks and balances, and by ensuring that people elected to civic office are virtuous and from among the people.

It is worth remembering that the American system still has work to do in becoming truly democratic. The preamble to the Constitution speaks of a "more perfect union," not "a perfect union." Historically, some work has been done already. Slavery was abolished; senators eventually came to be elected by popular vote (as opposed to by state legislatures) in 1913 (the Seventeenth Amendment); women received the right to vote in 1919 (the Nineteenth Amendment); and 18 to 20 year-olds got the vote in 1971 (Twenty-Sixth Amendment). The American system provides for a two-party system (whereas proportional representation is likely to lead to multiple parties) which often leads to a winner-loser division, or majority rule rather than consensus rule. This is not a system that other countries wish to emulate. Two-party systems tend to result in demonization and polarization whereas multi-party systems provide an incentive for compromise and coalitions. Particularly problematic in America is unequal representation in the Senate -- every state (regardless of size) gets two Senators. The principles of equality and democracy would require that larger geographic areas get more Senators. Another undemocratic institution is the electoral college which is used to select the American president but has become nothing more than a crude accounting system for national campaigns. The electoral college also provides the all too-common occurrence of a candidate who receives the greatest number of votes NOT becoming president. Both of these undemocratic institutions (the Senate and electoral college), and more, are in place because the founders feared a system in which a majority of the population could empower their representatives to do whatever the majority pleases. That's not liberty; that's license or raw power. Therefore, limited government is the norm (as Madison wanted), and under limited government, minorities who seek representation of their ideas are likely to be frustrated in organizing their interests along the artificial lines created by a limited government system -- better to seek liberty rather than power, along ideological lines regardless of what state a person happens to live in.

The notion of self-expression (internal liberty), as opposed to freedom from restraint (external liberty), has become increasingly important to the philosophical concept of liberty. Internal liberty involves the creation of conditions necessary for individuals to develop their fullest potential. This idea has always been closely tied to the notion of equality, as that term was used during the French Revolution, when liberty became associated with equality of opportunity. Inequality of opportunity is the greatest obstacle to individual development and liberty than any form of external restraint. Therefore, the French Revolution took the American Revolution a step further by trying to equalize as much as possible conditions in such areas as education, health, housing, and establishing freedom from want and fear, so that every individual might have an equal opportunity for self-realization. Comparatively speaking, the United States has been a late player in the game of equal opportunity and still has a long way to go. Much of what the U.S. has tried, such as affirmative action and welfare programs, have failed for various reasons related either to formulation or implementation of policy. America has learned the lesson that you can't easily legislate or mandate equal opportunity to come into existence. All you can do is set up the preconditions for it, and let human initiative do the rest.

To be sure, there's the global problem of imperialism. The right of former colonies to be independent and sovereign has come to be regarded as a principle of liberty. Since 1945, more than 50 former colonial areas have become independent states. The UN Commission on Human Rights has sought to promote the extension of political and cultural liberty throughout the world through treaties and covenants, the most important of which has been the Declaration of Human Rights. Liberty is one of those concepts where a threat to it anywhere is a threat to it everywhere, this being an essential part of the idea behind fraternity or brotherhood. The arena of international human rights is perhaps the fastest growing area of expansion for liberty, but that's because there are so many diverse voices to be heard.

Liberty is a word that can be used for many political purposes, to justify constitutionalism as well as fascism. It can be used to justify anarchism (no government at all) or the nationalist dream of total world domination. You can even set up a constitutional monarchy under the guise of liberty, or a totalitarian regime under Rousseau's version of republicanism as popular will. Politicians of every stripe usually have no problem working the word into their political rhetoric. It's not a conservative-liberal issue. It's a political philosophy issue. To examine this issue, we need to understand two competing philosophies -- natural law and social contract. It's widely regarded that the U.S. Constitution is an unusual mixture of natural law and social contract. The idea of natural law is very ancient, going back to the Greeks and Romans. The idea of social contract also reaches back to the ancient Greeks.

The idea of natural law is tied to a conception of the whole universe as organized, regular, repetitive, cyclical, or predictable. The ancient Greeks called it Kosmos, the order of things as opposed to chaos. To have wisdom about it was called Logos, and to know the direction of it was called Telos. Natural law is at once an organizing, directing, and moving principle. It is always superior to human law (positive law), no matter how well-designed. Plato defined justice as conforming to natural law. Aristotle derived the concept of right from the idea of justice ("what everywhere has the same effect and does not depend on diverse opinion"). After the death of Aristotle, Greeks and Romans divided into two camps - the Epicureans and the Stoics - with the Stoics maintaining the idea of natural law as cosmopolitanism, or world citizenship. The most famous Stoic was Cicero, who said "true law is right reason which conforms to nature", this standing as a definition of natural law for many years.

After the fall of Rome and the rise of Christianity, the Church adopted natural law as official doctrine. The apostle Paul was a Stoic who said "nature has given the pagans something, a law engraved in their hearts, to which their conscience bears witness as well as their thoughts" (Romans 2:14-15). Subsequent Church scholars debated the degree to which reason (conscience and thoughts) is integrated with faith (a law engraved in their hearts). St. Augustine believed that natural law cannot exist without faith in God, and St. Thomas Aquinas believed that natural law is implicit in reason. Then there was Albert the Great (1206-80) who defended vigorously the idea that natural law is the intended product of human reason. In the Middle Ages, natural law consisted of a simple Golden Rule -- pursue good and avoid evil.

During the Renaissance, two important thinkers were Jean Bodin (1530-96), who defined tyranny as any government which violates natural law, and Hugo Grotius (1583-1645), who claimed that even if God did not exist, there would still be natural law. Some have called Grotius the father of natural law. After the Renaissance, natural law became equated with the natural faculties of humans. Because it is an innate part of human nature and has been around since the origin of mankind, natural law is always equitable and just.

The so-called Protestant school of natural law in the Reformation associated natural law with the moral value of freedom. Human law is amoral; natural law is moral. Man by his very nature is the concrete bearer of freedom, and justice is anything that preserves the dignity of free men making moral decisions. The Protestant doctrine is that the dignity of all people outweigh the dignity of any one man -- such as a king or Pope. This would later evolve into the theory of natural rights -- that personal dignity outweighs any sovereignty needs of government. The most influential Protestant leaders were Martin Luther and John Calvin. In Germany, Luther preached salvation by faith and the liberty of Christians to interpret Scripture any way they wanted. This notion of liberty established itself in every religion except for Catholicism and Anabaptists. In Switzerland, Calvin preached that all churches and pastors were equal, that congregations should enforce a morally disciplined private life for its members. As it happened, Calvinism became a militant movement for political rebellion internationally.

Calvinists in England persecuted the Puritans, a group of Anglicans who believed they could reform the Church of England from within. They eventually opposed the existence of any state Church whatsoever, and in order to avoid persecution and to follow their conscience, fled to America as the first colonists. Along the way, they signed a pledge to something called the Mayflower Compact, a document which expresses the ideas of individualism, popular sovereignty, and liberty in the form of a social contract that respected natural rights.

The idea of social contract refers to an act by which people were assumed to have first established an agreed-upon form of social organization. It can be thought of as the birth of society, a pact between equals, or more often, as any civil agreement between people prior to the establishment of a government. Some writers prefer the words "compact" or "covenant" instead of the word contract. Regardless of the terminology, two main assumptions seem to be common to all forms of social contract theory: (1) self-determination, or the idea that people control their environment, that nature is man's plaything, that society is artificial rather than natural; and (2) the notion of consent, or the idea of contract as a voluntary agreement by those who will be bound by the rules they establish. Of these two, the notion of consent probably has the most variation.

Historically, the notion of contract goes back to the ancient Hebrews, to the covenants made between God and Noah, Abraham, and David. One of the most widely accepted doctrines in Judeo-Christianity is that the world was founded on a compact or covenant with God. For many years, it was just assumed this was how societies were also founded. Social contract thinking has also been associated with the mythology of a Golden Age of antiquity, a lost Atlantis-like civilization, if you will. Sometimes, this ancient civilization is portrayed as peaceful and tranquil; other times, it's described as nasty and harsh. Either way, its called the philosophical device or mechanism of State of Nature. Social contract theories use assumptions about the State of Nature to compare and contrast pre-governmental conditions with post-governmental conditions.

Ideas about social contract go back before Socrates, to a school of thought before him called the Sophists, a group of professional teachers of rhetoric, law, and government. They, like the Epicureans, the school of Diogenes (the Cynics), and Xenophon believed that truth was relative, politics was practical, and each person should find their place in society according to how they can best maximize their pleasure. Socrates and Plato, of course, viewed intelligence as pleasurable. In one of Plato's dialogues (Crito), we find the earliest statement of a concept which later becomes extremely important in social contract theory -- the idea of tacit consent -- the notion that all people dwelling within a state are assumed, by their continued residence, to consent to the laws by which they are governed. There are different versions of tacit consent, such as consent by ancestors versus popular consent, but the basic idea is there, that people are bound by the laws of a jurisdiction merely because they live there. If you don't like it, leave.

Throughout the Middle Ages, social contract took the form of feudalism, a type of economy based on land tenure, loyalty oaths, and a system of rights and duties between lords and vassals. The notion of consent gave way to the notion of obligation during the Dark Ages. The King would provide safety and security; the subjects would provide loyalty. It was in this context that the Magna Carta (1215) took place, ensuring that no ruler would ever be above honoring rights and privileges inherent in a contract with the people. In other countries, rulers stressed their obligation to God and God alone.

In religion, the French Huguenots, with the support of certain Jesuits and of course the Protestants, attacked the notion of divine right and obligation of a King to God and God alone. They resurrected the notion of consent. They believed it was appropriate to oppose a King if he had broken a contract with God or with the people. The right of resistance to a King's authority grew steadily, and involved one of the first mixtures of natural law and social contract. Natural law allowed people to receive the word of God without the need of a ruler to act as intermediary, and social contract provided the belief that obedience was based on consent, not obligation. This culminated in 1620 with the aforementioned Mayflower Compact by the Puritans, who brought these ideas to America. It was nothing less than a complete rejection of any ruler's right to rule, or less militantly, connected with the idea of inalienable rights, which social contracts are intended to secure and which the state should not infringe.

Soon after the Puritans left for America, England plunged into a series of civil wars, and a number of philosophers emerged to defend the monarchy. Foremost among these was Thomas Hobbes (1588-1679), author of the classic book, the Leviathan (1651), the branching point for constitutionalism and fascism. Hobbes followed Machiavelli (1469-1527) in having little use for religious Scripture. Machiavelli said that in a pinch, reasons of state must override morality and religion. In a nutshell, Hobbes is a critic of natural law, or more specifically, the State of Nature device. Hobbes said that in a state of nature, it is a war of all against all, that life is "poor, solitary, nasty, brutish, and short". Right is whatever the state, through its laws, says is right, and wrong whatever the state says is wrong. Hobbes saw rights as conveniences; liberty as the right to disobey. Therefore, in order that we might have more and better rights, state power should be as absolute and total as possible. The state should pervade and dominate every relationship, suppress any form of association it does not create and control, and silence any criticism of its absolute power (so that we might be more free by having more conveniences). The social contract exists where any sovereign entity, be it man or assembly, speaks for what is best for all the people. All people yield some natural rights, such as the right to force and self-government, to form a sort of super-person, or leviathan. The powers of this leviathan become the basis for all civic obligations. People fulfill their obligations out of fear of punishment. Fear is not incompatible with liberty; a covenant without the sword is useless. The only true liberties people retain are: (1) to self-defense; (2) to refuse to incriminate oneself during trial; (3) to refuse a suicidal mission; and (4) to bring certain matters of debt and taxation before the law.

Baruch Spinoza (1632-1677) agreed with Hobbes on many points, but generally had a softer viewpoint. He presented a view of limited sovereignty where the government should not trample on freedom of thought. Spinoza argued that you cannot make anyone believe something by fear of punishment. You can lead the horse to water, but you can't make them drink it. Acts of injustice should not go unpunished, but the state should also avoid censorship or regulation of anything that allows thought, reason, and intelligence to grow.

John Locke (1632-1704) presented an even softer view of government in the service of people. His radical reasoning was that if security is to be maintained in the general interest, then the people must be dominant. If people are dominant, then government must be subservient. His notion of social contract involved neither consent nor obligation, but trust. Government should be a passive listener to the will of the people, and never seek to silence, alter, or distort the voice of the people. Locke distinguished liberty from license. License refers to an abuse of freedom, carte blanche to do anything, or liberty of action. Rules against license are derived from natural law. Anyone who engages in license declares themself to be in a state of war with all other people. In order to prevent this state of war from erupting into all-out vigilantism, people enter into a social contract where they expect the government to act as a higher power or umpire. Judges are expected to be answerable to all the people, just as all regulations and laws are expected to be enacted and enforced in good faith and trust. By accepting the government's protection against violence and theft, people surrender their liberty of action and implicitly recognize the right of the state to punish them for violation of its laws. When the government breaches its trust, power devolves to the people, and the government is dissolved. Locke's Second Treatise on Government is widely regarded as a blueprint for a constitutional republic.

Jean Jacques Rousseau (1712-1778) presented a new concept of social contract based on an awareness of common interests that creates a bond between people. He used the term general will to describe those common interests, which at bottom, were nothing more than the preservation of equality among men. Without equality, there can be no liberty. Rousseau believed the state of nature was a condition of pure equality, and that with the rise of civil society, class distinctions emerged as well as a system of subordination that passes for civilization in the modern world. He viewed the rich and powerful as unable to abide by any social contract requiring mutual respect and dignity. Only the general will can enforce justice. Any government which rejects the general will by claiming any one group has natural authority over another deserves to be dissolved. Karl Marx and John Stuart Mill, each in their own way, picked up on this tension between authority and liberty; Marx claiming that all authority was just simply a rationalization for oppression and exploitation; and Mill claiming that some authority had to naturally carry with the government's advisory function.

The founding fathers were also influenced by Thomas Paine (1737-1809), who just a few months before the American Revolution in 1776 published a book called Common Sense which stated America's cause was the cause of all mankind. Paine wrote of the need for a new constitutional republic, a republic that would not be subject to downfall as were the Greek and Roman republics. The social contract, for Paine, was the only way such a desired government ought to be formed. This contract would be based on the idea of government as trustee, with a duty to serve the people. He saw a constitution as capable of being drawn up for this.

We have thus seen how liberty has many meanings and uses. The founding fathers were to make use of many different strands of thought. From natural law, they would adopt principles of individualism and natural rights; from social contract, they would adopt notions of trust, freedom of conscience, and sovereignty by a government answerable to its people. The Constitution was to be an exercise in balance and the establishment of limited government on the basis of popular sovereignty. In order to ensure the continued maintenance of popular sovereignty, numerous safeguards were created -- a system of checks and balances, bicameral legislatures, and the uniquely American system of republican governance called federalism.

Federalism (a federation) unites several political entities into a single unit but does not diminish the integrity of any individual entity. Ours is an indestructible union composed of indestructible states built upon a consensus politics. The people and the states delegate certain limited powers to a federal government, which is itself separated and limited in its powers. This way, the people reserve as much local control, dignity, respect, and freedom as they want. If the people are both competent and interested in handling their local problems, then the Constitutional recipe works as the perfect way to foster freedom without sacrificing order, and the perfect way to carry out authority without limiting liberty.

When someone speaks of due process, or receiving their "due," they are usually talking about something that they feel is rightly entitled to them. In fact, that is precisely the historical meaning of due process. Ever since antiquity, every society has had some concept of it. That's because the notion of due process varies from society to society. The basic idea remains constant, but how much a person feels rightly entitled to depends on the historical and cultural context in which they live. Due process is tied to custom, which can vary even among regions or localities within a nation. Customs are the regular habits and non-religious rituals of a local people. Customs along with folkways (proverbs and symbols) and norms (guides for behavior) make up the sociological definition of culture. The extent of due process among the customs of a people is the hallmark of a civilized or decent society. Due process generally refers to the regularity, fairness, equality, and degree of justice in both procedures and outcomes.

The ancient Egyptians, for example, required judges to hear at least both sides of a case. The Code of Hammurabi is a type of due process -- something written down so people would know what the laws are. Even the ancient Chinese had some minimal procedures for notice and hearing when people were charged with something. When Jesus was put on trial, He was given the opportunity to reply and present evidence. The Greeks and Romans offered juries and professional orators. In most cases, these were not formal processes; they were the unwritten rules of justice as fairness. They started as customs and became law over time.

The idea of due process in law seems to have emerged only in societies which practiced the accusatorial, or adversary, system. Societies which practiced the inquisitorial system kept people in jail for long periods of time without letting them know the charges, and suspects were often compelled to confess or testify against themselves. The phrase "due process of law" was first used in England sometime during the 13th or 14th century as synonymous for "law of the land", hence, it was made part of the common law and given a natural law interpretation. The American colonists seized upon the phrase, incorporating it into all the state charters and almost every document surrounding the American revolution and Constitutional Convention. Historical records from those time periods seem to indicate the founding fathers thought of due process as fairness.

Fairness is the idea of doing what's best. It may not be perfect, but it's the good and decent thing to do. It requires being level-headed, uniform and regular, when all around you is prejudice, corruption, or the desire of an angry mob to see justice done. Fairness requires breadth and depth. Not only does the outcome have to be fair, but so does everything along the line such as evidence gathering and presentation. Fairness is difficult to put in the form of strict legal rules and principles that cover every situation. Which is fairer?

Due process of law holds that the second answer is more correct, for many reasons. On a practical level, there's less of a danger to the whole legal system. If your system is convicting a few innocent, chances are it's railroading many of the guilty, so you've got two problems on your hands -- those who are falsely imprisoned and those who have a stronger habeas corpus claim. If your system is letting a few guilty slip through, chances are that those lucky evil-doers might change their ways, or in any case, law enforcement or informal methods of social control can pick up the slack. However, on the more important theoretical level, it depends on what kind of system you want to have -- one that just rolls over people indiscriminately -- or one that is individualized and takes into account the need for your society to expand freedom. The U.S. Constitution guarantees due process because it's designed to be a "living document" that expands freedom. Let's look at a few ways it does this:

Definition of Due Process: the exercise of government power under the rule of law with due regard for the essential and fundamental fairness rights of individuals
PROCEDURAL DUE PROCESS - how the law is just; source of fairness in the Constitution; decided mostly through Balancing Tests of interests and consideration of error; related to concept of legitimacy; interpretation is the whole phrase "without due process of law" activating the term "without"	SUBSTANTIVE DUE PROCESS - why the law is just; related to concept of legality; source of fairness beyond the Constitution; decided mostly through Fundamental Rights/Compelling Need Tests; interpretation is the phrase "due process of law" as a continuation from life, liberty, and property

Rule of law refers, in part, to the rules being announced beforehand. Essential and fundamental fairness refers to how important something is for maintaining democracy. Legitimacy refers to how fairly the legal system is perceived. Legality refers to how extensive the legal system is. With the exception of the ex post facto clause, the Constitution is mostly concerned with procedural due process, but for every fundamental freedom, there's a larger freedom involved.

DUE PROCESS is also related to the incorporation debate since it's mentioned in both the Fifth and Fourteenth amendment. For review purposes, let's look again at the two places due process is mentioned in the Constitution:

If you were to file a due process claim, which clause would you use? - the Fifth or Fourteenth? Well, I've said previously that I think the Fifth is more about substantive due process and the Fourteenth is more about procedural due process, but that's just my interpretation. The correct answer is it depends on your interpretation, and most importantly, your stance toward incorporation, how much of the Bill of Rights is covered by the Fourteenth Amendment. Remember that the Fifth was only intended to apply toward the federal government, but the Fourteenth made it binding on the states.

Selective incorporation (Number 2) treats due process almost the same as equal protection. However, there's no equal protection clause in the Fifth Amendment. Equal protection is all about discrimination claims, so if selective incorporation is your viewpoint, you would file your claim of racial or sexual discrimination under the Fifth (because you don't want to take any chances on the justices' view toward incorporation; a conservative Court might find some new states' right under the privileges and immunities clause of the Fourteenth). So, that's what most lawyers do -- they file their due process claims under the Fifth, making sure they have federal involvement, and argue that not only were one or more of the specifically outlawed procedures in the Fifth violated, but the whole process substantively violated the principles of essential and fundamental fairness, triggering a shift in the burden of proof to the side of the State to show a compelling need. Of course, there are attorneys who file just as many similar claims under the Fourteenth. It doesn't depend on the type of case, and there's lots of overlap, as the following table shows:

Cases Filed Under the Fifth	Cases Filed Under the Fourteenth
affirmative action cases	affirmative action cases
death penalty cases	abortion cases
discrimination cases	assisted suicide cases
double jeopardy cases	discrimination cases
fair trial cases	fair trial cases
Grand jury cases	intrusions into human body cases
just compensation cases	minority set-asides
privacy cases	privacy cases
self-incrimination cases	political representation cases
sentencing enhancement cases	right to refuse medical treatment cases

A moment ago, the phrase "shifting the burden of proof" was mentioned. That's because due process is closely associated with evidentiary proceedings. Evidence is that area of criminal justice which comes closest to connecting fairness in procedure with fairness in outcome. The most basic rule of evidence is that the State bears the burden of proving . Unless and until that burden is carried by the State, the accused enjoys a presumption of innocence. This presumption is not a right, but a privilege that is attached to the way various "burdens" are laid out in evidence law. There are three burdens and a related concept that are relevant here:

Notice that it's possible to win or lose the trial on points but still lose or win the outcome. That isn't much consolation to someone convicted and sentenced to twenty years in prison, but it becomes of paramount importance when you consider all the twists and turns that an actual trial takes with, for example, a self-defense claim or an insanity defense.

In the self-defense case, witnesses and evidence will be presented on both sides. Suppose there's an equal number of witnesses and evidence on each side, and the jury deadlocks on the self-defense issue. Well, whomever raised the self-defense issue in the first place has the burden of persuasion, and this is most likely the defense, so the defense loses the point of self-defense. However, the defense still wins the trial because the burden of proof is on the prosecution side to prove an absence of self-defense, and they haven't done that either because the jury is deadlocked. This is a classic example of how the burden of proof settles all ties.

Things aren't always in favor of the defendant. It depends upon the flow of argument and which issues and "truths" come up during a trial, and by whom. With the insanity example, it used to be the state had the burden of proving the defendant was NOT insane, but most states now use a method by which the defense has the burden of proof and the prosecution a burden of nonpersuasion. There's all kinds of ways an insanity defense can twist and turn so that the defense winds up winning some points but losing the verdict.

Everything mentioned above about "burdens" and "proof" is intended to illustrate how rules of evidence are examples of procedural due process mixed with substantive due process. Being factually guilty is one thing; being legally guilty is another, and the rules are designed with fairness to each point of view in mind. Virtually every rule of evidence affects the outcome of the case, so it's substantive; but virtually every rule of evidence is about procedure, so it's procedural. The closest thing to substantive due process in the whole of criminal justice procedure is the standard of proof, and that's only because beyond a reasonable doubt is a tough standard.

So, how is freedom expanded by due process? The answer is that it's easy to spot bad procedure. Whether or not it made a substantive difference in the outcome is debatable, and a matter of good faith and reconciliation of error. If only the procedure is bad, the case can be remanded for a new trial with better procedure. If the substantive due process is bad, a judicial reversal occurs. The substantive part can be enforced independently of the procedural part, giving appellate and Supreme courts the power to strike down all sorts of decisions simply because the verdict is undesirable for some reason. Nothing in the Constitution, outside the Commerce Clause, concentrates such power in any one branch of government. It's a way of bringing states and municipalities up to the federal level, and also a way of signaling which local customs are deemed most desirable. There's nothing to prohibit the states and municipalities from experimenting, and it's those judicial experiments in due process that potentially open the door to newfound freedoms.

Postscript: Some restorative justice processes, like arbitration, mediation, and alternative dispute resolution require an admission of guilt, others a declination to deny guilt, and still others some acceptance of liability. In this sense, restorative justice may compromise the accused's right to a presumption of innocence. The problem with these dispute and mediation centers may be that they are too non-traditional in terms of the role that due process plays. Some counseling sessions may more closely resemble the inquisitorial system.

The idea of equal protection is the idea of legislated equality, and is sometimes called "complex equality" by pluralists (e.g., Walzer 1984) who believe the term equality refers to how a society not only distributes its wealth and power, but "other" social goods as well, such as honor, education, work, free time, and even love. There are notions of fairness, goodness, fraternity, cosmopolitanism, and social justice associated with the concept. There is usually not much of a connection to the concept of liberty because equal protection is about the creation of rights, not liberties. Rights, as opposed to other justice concepts, do not ordinarily come from above, nor from God, nature, logic, or law alone. Rights do not emerge from some theory of perfect justice, but from its opposite, from the bottom up, from trial and error, or from our collective experience of injustice. In short, human rights mostly come from human wrongs (Dershowitz 2005). A rather sharp distinction is usually made between CIVIL RIGHTS and CIVIL LIBERTIES, as follows:

The Equal Protection clause is located in Amendment XIV: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The history of equal protection has deep roots that go beyond the immediate context of the anti-slavery amendments (Amendments XIII, XIV, and XV which ended slavery, prohibited discrimination, and restored voting rights, respectively). The idea of treating everyone alike is part of humanity's collective fear of the unknown and unexpected. For example, when disasters happen (floods, earthquakes, etc.), they affect rich man and poor man alike. While there's a leveling quality to such events, and a corresponding sense of empathy and goodness that pours from hearts and wallets, you can't run a nation on empathy alone. There's a political need to restore a social stratification system necessary for the continued progress of society. This need is considered part of what's called realpolitik.

In other words, equal protection is NOT about leveling the playing field by turning everyone into cloned look-alikes who address each other as "comrade" (that's called Communism). It's about maintaining a decent social stratification system which allows as many people as possible to achieve their fullest potential. That's where the concept of classification comes in. All stratification systems are hierarchical. Some people have more natural talent than others; others have more wealth; and just about any group of people left to their own devices will create some sort of pecking order based on social distinctions. It's the purpose of Equal Protection of Law to make sure the worst forms of social distinctions do not arise. Some distinctions are constitutional; others are not.

Equal protection is related to the notion of pluralism, an aesthetic theory of goodness which some people talk about in terms of diversity or inclusion. It is designed to work for open societies that have high levels of immigration and a certain amount of xenophobia. It's expressed in the motto of the United States -- E Pluribus Unum -- one from many. It's expressed in the Declaration of Independence as "all men are created equal." It's expressed in Aristotle's principle of justice:

Equality consists in the same treatment of similar persons.
Equality is not, however, for all, but only for equals,
and inequality is ... only for unequals (Aristotle)

At the time the Constitution was being written, the founding fathers were influenced by Adam Smith (1723-90) who wrote the book Wealth of Nations. Smith's ideas are generally considered the basis of capitalism, and in many ways, Smith was the architect of laissez-faire economics which dominated much of early American history. This particular economics tended to legitimize the worst forms of socio-economic stratification by putting everyone on the equal plane of competition without consideration for pre-existing wealth and status (e.g. counting slaves as three-fifths of a person). There are still many adherents to Smith's attractive notion of free enterprise, but there are just as many proponents of the idea of social justice, a theory that emphasizes the importance of economic fraternity and fairness in the form of adequate standards of living. Social justice is related to equal protection through the ideas that past vestiges, legacies, or patterns of inequality stand in the way of real progress. In Constitutional law, this is referred to as invidious discrimination; some call it institutional de facto discrimination, or the legacy of slavery.

Let's examine the legal aspects of classification. All constitutional republics, the UN Declaration of Human Rights bucking the trend, legitimize some form of legal and nonlegal forms of discrimination. The usual method is for a legislature or Parliament to pass laws and for a judiciary to provide interpretation. The government must think through the following:

These last two statements are the principle of equal protection. In actuality, it's a principle of equal discrimination. It allows groups to be discriminated against as long as, with respect to the group receiving less, the discrimination is spread equally among all members of the affected group. For example, if a law makes a distinction among a group of people called XY, then not only does the dividing line, or classification, between X/Y have to be constitutionally valid, but the equal protection clause requires that all members of group X receive similar treatment and all members of group Y receive similar treatment.

The role of the legislature is to consider which particular classifications are good or bad, taking into consideration a nation's historic background, culture, and changing attitudes. The role of the judiciary is to review these classifications to make sure they are not arbitrary and capricious, but more importantly to consider whether equal protection (equal discrimination) is taking place both between and within groups.

To assist the judiciary, the Supreme Court has developed three basic tests of the Equal Protection clause. Which test is used depends on the type of discrimination and the government interests at stake. These tests are also known as LEVELS OF SCRUTINY and by other names:

The most basic test is the rational basis test, also called minimal scrutiny, and sometimes the reasonableness test. It generally looks at whether unequal treatment is arbitrary or capricious. It often comes up with health and safety regulations, such as when the government passes a law making it illegal for persons under age 18 to do something. The burden of proof is on the challenging party to show that such a law is irrational.

The second test is the compelling interest test, also called strict scrutiny, and sometimes called the suspect class test. A suspect class is a group of people the Court has already determined that distinctions or discriminations against them is irrational. Think of them as "protected" groups. Race and racial discrimination issues are predominantly the cases that come up for this kind of review. The burden of proof is on the government to show that it has a compelling interest to make law in this area, and that they have gone about it by the least restrictive means possible.

The third test is the substantial interest test, also called intermediate scrutiny, and sometimes called the heightened scrutiny test. In many ways, it's a mix of the other two tests, and issues that come up here are supposed to be cases dealing with groups that have been historically disadvantaged or are politically powerless. Gender and sex discrimination cases tend to reviewed under this standard. The burden of proof is on the government to show a greater than ordinary justification for passing laws in this area. Intermediate scrutiny is also the standard which applies under the First Amendment where a regulation serves purposes unrelated to the content of expression.

SUPREME COURT APPROACHES TO EQUAL PROTECTION
TEST USED	CLASSIFIED GROUPS	CIVIL RIGHTS GAINED
minimal scrutiny	Indigence Age Mental disability Sexual preference	Education Welfare Housing Travel
strict scrutiny	Race Alienage	Vote Travel
intermediate scrutiny	Gender Illegitimacy	Speech Expression

Over the years, Congress has also passed various Civil Rights Acts which extend the Constitutional guarantee of equal protection. These give the executive branch of government various enforcement powers. For litigants, it's easier to prevail in Court by proving violation of a civil rights statute than a constitutional violation. The most important pieces of legislation are:

Affirmative action programs have their origin in Presidential Order #11246 when President Johnson in 1965 instructed the Labor Dept. to require firms doing business with the federal government to ensure they were nondiscriminatory. Firms, on their own, started to aggressively recruit and retain minority employees. The Supreme Court didn't review any related case until 1978 when it heard the "reverse discrimination" claim in Regents of University of California v. Bakke. The final vote was 5-4 in favor of affirmative action programs, as long as they don't set quotas.

In 1980, the Court started considering the practice called minority set-asides. These are systems that give special consideration to minority-owned firms in the awarding of contracts and subcontracts. In a series of rulings, the Court narrowly held that such programs, as narrowly construed, are unconstitutional, and signaled that affirmative action programs, in the future, will be held to very exacting standards. At present, any affirmative action program, to be constitutional, must meet the following standards:

Standards for Affirmative Action Fairness

1. is enacted as a clear response to demonstrable acts of discrimination
2. is narrowly tailored to respond to actual acts of previous discrimination
3. is designed to assist only groups who have been victims of discrimination
4. is not based on quotas
5. is not based on any stereotypes or presumed inferiority of any group
6. is temporary, with clear plans for termination when threshold levels are reached
7. seeks to eliminate racial imbalance, not maintain racial balance
8. is based on labor pool analysis and statistical studies
9. does not trammel on the rights of the majority
10. does not take away already earned benefits from the majority
11. is approved by a federal court as an appropriate remedy
Source: Epstein, L. and T. Walker (2001) p. 745

In summary, it's unlikely that the Equal Protection clause alone will ever eliminate all unfair inequalities. It's just not designed to do this. Courts are reluctant to get into areas involving voluntary associations, like religious organizations and other groups. With certain economic opportunities, the Commerce Clause is much more effective than the Equal Protection clause, at least with public accommodations like restaurants and motels. More likely, the Equal Protection clause will eliminate the harshest inequalities, increase the overall standard of living, and bring enjoyment of the good life to as many people as possible.

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Last updated: Oct. 29, 2007
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O'Connor, T. (Date of Last Update at bottom of page). In Part of web cited (Windows name for file at top of browser), MegaLinks in Criminal Justice. Retrieved from http://www.apsu.edu/oconnort/rest of URL accessed on today's date.

EQUIVALENT TYPES OF DUE PROCESS
PROCEDURAL:	SUBSTANTIVE:
freedom of assembly	freedom of association
freedom to vote	freedom to participate
freedom to travel	freedom of movement
freedom from search & seizure	freedom of privacy
freedom of property	freedom to enjoy
freedom from bodily invasion	freedom of choice
etc., etc., etc...etc., etc., etc..	etc., etc., etc...etc., etc., etc..