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While mere process of thinking is the process of habits, ideals, definitions, investigations, classifications, valuations and behavior, due process of thinking, which is due process of law, is the process of correct habits, right ideals, true definitions, sincere investigation, reasonable classification, reasonable value, and justice; whereas its opposite, undue process, is perverse habit, wrong ideals, double meanings, partial investigation, class legislation, confiscation and injustice.
Procedural fairness, if not all that originally was meant by due process of law, is at least what it most uncompromisingly requires. Procedural due process is more elemental and less flexible than substantive due process. It yields less to the times, varies less with conditions, and defers much less to legislative judgment. Insofar as it is technical law, it must be a specialized responsibility within the competence of the judiciary on which they do not bend before political branches of the Government, as they should on matters of policy which compromise substantive law. If it be conceded that in some way [that the agency could take the action it did], does it matter what the procedure is? Only the untaught layman or the charlatan lawyer can answer that procedure matters not. Procedural fairness and regularity are of the indispensable essence of liberty. Severe substantive laws can be endured if they are fairly and impartially applied. Indeed, if put to the choice, one might well prefer to live under Soviet substantive law applied in good faith by our common-law procedures than under our substantive law enforced by Soviet procedural practices. Let it not be overlooked that due process of law is not for the sole benefit of an accused. It is the best insurance for the Government itself against those blunders which leave lasting stains on a system of justice but which are bound to occur on ex parte consideration.
The majority's decision today will require States to issue marriage licenses to same-sex couples and to recognize same-sex marriages entered in other States largely based on a constitutional provision guaranteeing 'due process' before a person is deprived of his 'life, liberty, or property'. I have elsewhere explained the dangerous fiction of treating the Due Process Clause as a font of substantive rights. It distorts the constitutional text, which guarantees only whatever 'process' is 'due' before a person is deprived of life, liberty, and property. Worse, it invites judges to do exactly what the majority has done here.
Seeing the life force in human beings brings medicine [and education and healing] closer to gardening than to carpentry. I don't fix a rosebush. A rosebush is a living process, and as a student of that process, I can learn to prune, to nurture and cooperate with it in ways that allow it best to 'happen,' to maximize the life force in it even in the presence of disease [and difficulty and pain]. Simply trusting process has a great power.
A colleague of mine was telling me about the birth of her grandchild. At one point in a long and difficult labor, her daughter had called out to her for help. My colleague experienced this as a moment of impotence, feeling that there was nothing that she could do to fix things. She had sat there holding her child's hand, trusting the process of birth and feeling that this was not enough. But perhaps it is. The trust of process that comes from personal knowledge and experience is really the foundation of helping and comforting one another. Without it all of our actions are driven by fear. Fear is the friction in all transitions.
By straying from the text of the Constitution, substantive due process exalts judges at the expense of the People from whom they derive their authority. Petitioners argue that by enshrining the traditional definition of marriage in their State Constitutions through voter-approved amendments, the States have put the issue 'beyond the reach of the normal democratic process'. But the result petitioners seek is far less democratic. They ask nine judges on this Court to enshrine their definition of marriage in the Federal Constitution and thus put it beyond the reach of the normal democratic process for the entire Nation. That a 'bare majority' of this Court is able to grant this wish, wiping out with a stroke of the keyboard the results of the political process in over 30 States, based on a provision that guarantees only 'due process' is but further evidence of the danger of substantive due process.
Even if the doctrine of substantive due process were somehow defensible, it is not, petitioners still would not have a claim. To invoke the protection of the Due Process Clause at all, whether under a theory of 'substantive' or 'procedural' due process, a party must first identify a deprivation of 'life, liberty, or property'. The majority claims these state laws deprive petitioners of 'liberty', but the concept of 'liberty' it conjures up bears no resemblance to any plausible meaning of that word as it is used in the Due Process Clauses.
As used in the Due Process Clauses, 'liberty' most likely refers to 'the power of loco-motion, of changing situation, or removing one's person to whatsoever place one's own inclination may direct; without imprisonment or restraint, unless by due course of law'. That definition is drawn from the historical roots of the Clauses and is consistent with our Constitution’s text and structure. Both of the Constitution’s Due Process Clauses reach back to Magna Carta. Chapter 39 of the original Magna Carta provided ',No free man shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land'. Although the 1215 version of Magna Carta was in effect for only a few weeks, this provision was later reissued in 1225 with modest changes to its wording as follows: 'No freeman shall be taken, or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers or by the law of the land'. In his influential commentary on the provision many years later, Sir Edward Coke interpreted the words 'by the law of the land' to mean the same thing as 'by due proces of the common law'.
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It's not going to be easy to proceed. There are going to be barriers, difficulties, hardships, failures- it's inevitable. But unless the process that is taking place here and elsewhere in the country and around the world, unless that continues to grow and becomes a major force in the social and political world, the chances for a decent future are not very high.
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