George Will’s latest column focuses on a lawsuit challenging absurd and arbitrary laws in a small Missouri town whose leaders think of legislation more in terms of what they can make people do, than how they can make rules that protect people. As Will notes,
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….”
Such rules violate the basic premise of constitutional government, which is that the powers of the lawmaker are themselves limited by law. For 800 years, since the Magna Carta first enunciated the idea that we now call “substantive due process,” the lawmaker’s power has been limited by the moral and political principles inherent in the idea of law, and particularly the rule that the legislator may not govern simply for his (or their) private gain. Citing my book, The Conscience of The Constitution, Will writes,
The due process clause, properly construed, prohibits arbitrary government action, particularly that which unjustifiably restricts individuals’ liberties…. [T]here 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…. [T]he 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… 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.