That’s just what Justice Clarence Thomas did, I’m sorry to say, in his concurrence in Perry v. New Hampshire, today, writing: “I would not extend Stovall v. Denno, 388 U. S. 293 (1967), and its progeny even if the reasoning of those opinions applied to this case,” he wrote. “The Stovall line of cases is premised on a ‘substantive due process’ right to ‘fundamental fairness.’ In my view, those cases are wrongly decided because the Fourteenth Amendment’s Due Process Clause is not a ‘secret repository of substantive guarantees against “unfairness.”’”
It’s sad to see Justice Thomas take such a position—one that is not reconcilable with logic, precedent, or originalism. In fact, if the due process of law clause means anything at all, it means substantive protections against unfairness. An unfair or arbitrary procedure—a coin toss or consulting a Ouija board—would not be a “process of law,” and would therefore violate the due process of law guarantee, precisely because of its unfairness. Arbitrariness is not law precisely because it is, inter alia, unfair. And that has been how the promise of due process has been understood since the days of Magna Carta. Indeed, the procedures required by the Due Process of Law Clause are required as one part of the Clause’s broader guarantee of substantive fairness. Procedural due process is a subset of substantive due process.
I explain further in my new article, In Defense of Substantive Due Process, or, The Promise of Lawful Rule.
Comments policy