Sheridan: Con-Law

SAUDI JUSTICE NO JUSTICE

Lest you think that American justice is no justice (see the previous article on refusing to provide the defendant with the name of the witnesses against him) and we are alone in the world, check out the Saudi criminal case where the woman (from Qatif) who was raped by seven men who saw her with a man (not her husband, father, or brother) in a car (they raped him, too).  The rapists were sentenced to prison, but the woman was sentenced to receive a hundred lashes, increased to  two hundred when her lawyer appealed, for which he was disbarred for speaking to the press.

The article is below.

Where do they get these people?

From the same place where we get ours, presumably.

We manufacture them according to our beliefs.

Have fun with this one.

AMERICAN JUSTICE NO JUSTICE

The hard-fought right to a fair trial has been defended by thousands of soldiers, sailors, flyers and Marines, too many of whom "died face down in the mud" defending the Constitution, to quote a memorable phrase by Lt. Col. Oliver North when he took the ever-suspect Fifth Amendment before testifying at a congressional inquiry investigating his participation in Iran-Contra, the missiles-to-Iran deal in payment for support for the opponents (the Contras) of the Sandinistas in Nicaragua in the 1980s.  Previously only the Mafia (okay, the alleged mafiosi) "took da Fift,'" in order to avoid having to name names during the Congressional hearings of the 1950s.  You hadda be there, I guess.  So everyone who was a kid back then (yours truly) thought, quite naturally, that if you took the Fifth, you must have something to hide.  Ollie North taught us that it was pro-American to invoke basic American constitutional rights.  Not that he didn't have something to hide, of course, one might suspect...  But we're not supposed to suspect, are we.  We hammer this into the heads of jurors, every chance we get.

This means that in America, if America charges you with a crime, America sees to it that you have a fair and public trial, with a lawyer paid for at public offense, and the means to confront and cross-examine witnesses, before a neutral tribunal.  Plus time to prepare.  And to testify and call witnesses of your own.  In order to prepare to question the witnesses against you, you are entitled to their names so you can check out who they are, since you don't know who is going to say what, unless a report has been made by the investigating authorities, in which case, you are entitled to those.

We also allow prisoners to communicate with the outside world, such as making calls to find a lawyer, calls to family and friends, and even to news reporters.  We allow legal visits without the restrictions imposed on family and friends who'd like to visit during normal visiting hours.  Lawyers can show up at any time to see their client, at least in San Francisco, California, U.S.A., and the other jails I visit during the course of my practice for four decades.

We call this guaranteeing a fair trial.  It's not a purge trial or a show trial as under Stalin during the Soviet Union, which collapsed in 1991.  It's not a kangaroo court, a make-believe charade of a trial such as prisoners might have in a cell.  Cervantes wrote of those 400 years ago.

If there's one thing America stands for, as much as it does the ideal of democracy, it is the ideal of a fair trial.

If someone's life or liberty is at stake, he, or she, receives a fair trial, despite whatever public passion is aroused and despite whatever the political parties and the newspapers say, or don't say, about it.

Right now America holds detainees from the war in Afghanistan following the 9-11 attack when 19 Saudis hijacked three airliners and crashed them into the Trade Center in New York, the Pentagon, and a field in Pennsylvania.  We didn't attack Saudi Arabia. We attacked their training ground, Afghanistan.

We also attacked Iraq, which had nothing to do with it.  We simply didn't like Iraq or its leader, Saddam Hussein, the only person, apparently, capable of holding that mess of a country together.

We are detaining a number of people captured during these wars and we're holding them without any hearing whatsoever, usually in Guantanamo, sometimes other places, such as the brig in Newport, VA.  We've also sent some prisoners on the Rendition Merry-Go-Round for harsh questioning (see waterboarding) in foreign countries, according to reports.

This, of course, gives America a bad name in the world and we'd like to see the bad conduct stop so that we can try to earn our good name back, which shouldn't take long, maybe a century or so of being on probation.

There's a case that I've taught (Sandin v. Conner (1995), 515 US 472) in which a state prisoner is given a trial over a disciplinary matter in which he is not permitted to call witnesses. 

Is this due process, I ask the class. 

They don't know.  It looks like a trial in that there's an accuser and the defendant, who can explain, if he'd like.  But he can't call witnesses so there's no way to tell who is telling the truth, the guard or the prisoner.  The judge is a prison authority.  Presumably he, or she, could tell who is being more truthful among witnesses regardless of status, even if it meant disbelieving a correctional officer on occasion.  But why give a prisoner the satisfaction, I guess is the theory.  Where would discipline go?  Flying out between the bars of the cell, one presumes. 

At any rate, let's not confuse this with a real trial, okay?  If the student put himself in the place of the prisoner for one moment, he'd get the picture.  Law students are good at picturing themselves as judges, not prisoners, just as students of Roman history view themselves as senators, not proles piling brick upon brick for bread and circuses.  Circi?  Circae?

No, it is not a trial. 

It is not a trial, much less a fair trial, when you are not allowed to call witnesses who have information about what happened, eye-witnesses, usually.  If you were accused of a crime and your friend could testify that you didn't commit it, wouldn't you expect that you should be allowed to call your friend?  If the judge said you couldn't call your friend, would you think you had a fair trial?  Due process of law?  Of course not.  That's the rule of the case, although in the case of the prisoner, Chief Justice William Rehnquist held that the prisoner was not entitled to a full trial, or even due process.  In conflicts between government power and individual rights, Rehnquist most frequently sided with the government, alas.  He's been replaced by his clerk.  We'll have to see what he does in such cases, but I wouldn't waste my rapidly diminishing store of hope on seeing him institute enhanced due process for alleged bad guys.

At any rate, a judge presiding over the criminal trial of a detainee has ordered defense attorneys not to tell their client the name of the witness who will testify against him, for fear that the witness might be killed.

That's a good reason to release the prisoner and for not holding a non-trial masquerading as a real one.  Fake trials masquerading as real ones give kangaroo trials a bad name, certainly unworthy of the name "American trial."

See the article below, by William Glaberson, entitled "Witness Names to be Withheld From Detainee," below.

CONSERVATIVE PHILOSOPHY, OR PARDON ME WHILE I GAG

Federal judge tells a defendant he's got until Feb. 27 to file an appeal regarding his murder conviction, so that's when the man files his appeal, on the 27th, only to be told later that the judge made a mistake, the deadline was the 24th, he's too late, and he can rot in jail for the rest of his life, no matter how well-founded his appeal might have been had he not relied on that lying judge.

That's what the U.S. Supreme Court, our last bastion of liberty, told the man last week, in Bowles v. Russell, Warden.

Bowles, who was convicted in a state court, filed a writ of habeas corpus in federal court, which denied the writ and told the man, incorrectly, that he had 17 days to file his appeal when the federal statute governing appeals from denial of habeas corpus allowed only 14 days. Late filing means that the court you appeal to has no jurisdiction.

This sure ain't the Warren Court, which went out of its way to clean up criminal law and procedure from some of its more medieval characteristics.

Welcome back to the bad-old-days with the Bush-established Roberts Court, with Justice Clarence Thomas writing the opinion. Yet another bonus from the gift that keeps on giving, Bush v. Gore (2000).

Some days, the law, in its majesty, is an idiot, an ass.

This will sure teach Mr. Bowles the error of his ways. Instead of reflecting on how he must not murder, he can amuse himself thinking how he might have been freed if only his unwary attorney had checked the deadline instead relying on that bonehead judge.

The general rule is that the government may not be estopped by the unauthorized acts of its agents. However courts have been known in some jurisdictions to have the power to control their own processes and to excuse excusable neglect or mistakes. But not, apparently, in federal court, where they can figure out all sorts of ways to rope you in, but none to let you argue that you should be let out of jail.

This must be based on the well-known conservative doctrine that insists we must not encourage prisoners to appeal because they all say they're innocent and we don't want to encourage them to flood us with paperwork that we'll have to read, even though we get paid to read papers. So what if a few innocent people go down the toilet with the guilty. You can't make an omelet without breaking a few eggs.

Why didn't Victor Hugo think of this, I wonder. He could've included a scene in Les Miserables where Jean Valjean appeals his sentence a day too late, heightening the dramatic contrast between justice and injustice.

And I thought that our law and rules were supposed to be based on reason. Silly me. So much for the rational basis test when applied to criminal procedure.

Well, let the prisoner write a letter to his congressman, appears to be the conservative view.

I take the more liberal view and wonder just how far writing to your congressman is going to get you, especially if he has a conservative cast of mind when it comes to freeing convicted murderers.

"Let's see, how many votes will freeing this murderer get me in an electorate which wants to throw the key away on murderers," Mr. Congressman is probably thinking as we speak.

How would you like to be the prisoner's attorney, saying, "Sorry, Jack, we missed the deadline for your appeal, hope you'll forgive us. Oh, well, gotta run, have another court appearance in another case, ta-ta, have a good day..."

See the NYT editorial, below.

SUBSTANCE VS. PROCEDURE

Sometimes you get asked the damnedest questions.  Note the "briefly."  Yeah, right.

Marie D. Sheridan wrote:

Hi Bob,

One of my colleagues is taking a course in American Government at College of San Mateo, and he posed a question which I thought you could briefly answer.

Can you define/differentiate between procedural due process and substantive due process as they relate to the Constitution. 

Thanks.

Marie

***

Here goes:

Marie,

The term "due process" is derived from Magna Carta, 1215, where the barons got the king, John, at swordpoint, to agree not to come after their lives or property except according to "the law of the land," which meant a trial by a jury of their peers (or equals) in essence, i.e. other nobles.   

The U.S. Constitution uses the term "due process" in stating that no person shall be deprived of life, liberty, or property w/o due process of law, meaning contrary to law of the land, i.e. arbitrarily or capriciously.

In this sense due process includes two components: 

1) there must be no violation of the substance of law, that is, government cannot, for example, take the life of A because his relative, B, committed a crime, or take A's property because B, the president's friend, would like to have it.  Let's call that substantive law.  The other component

(2) is procedural law.

This guarantees A the procedural right to a trial before his life, liberty, or property may be taken allegedly by substantive law.  In truth much substantive law rights are secured by procedural law and a person deprived of procedural rights such as the right to call witnesses at a trial might justly regard that as a deprivation of a right of substance.

Sticking with the distinction nevertheless, procedural due process can be understood correctly as being the right to (1) notice, (2) a hearing, (3) before a neutral tribunal (which calls military tribunals, such as at Guantanamo, into question in case one might think this purely a historic or an academic discussion).

Substantive DP stems from the fact that the 5th Amendment (and in 1868,  the 14th, applying the guarantee to the states, not just the federal government) provides that "liberty" may not be taken w/o DP.  We already knew that "life" may not be taken, and some liberty, because those rights are protected by the law governing criminal substance and procedure.  But what of other liberty rights?  Are there any?  How about privacy, contraception, abortion, personal decisions about whom to be friends with or marry, or life-style based on sexual orientation?  Are we free to send our kids to parochial school instead of public?  To teach them their ancestral language, such as German after WWI when anti-German sentiment was high?

In short, the Court began to recognize that Americans had non-textual, non-enumerated rights protected by the liberty term in the due process guarantee.  These are the so-called rights of substance giving rise to the term "substantive due process."  Some have argued (J.H. Ely) that the term and the distinction don't make a lot of sense, but it makes sense to a lot of others who use the term all the time as a verbal shorthand to keep the distinction between substance and procedure in their heads for the sake of discussion and analysis.

The big argument in the Roberts confirmation is over whether he will vote to protect these unenumerated rights of privacy such as abortion which previous courts have read into constitutional law as the result of the term "liberty" as protected by the "due process" guarantee.  Liberty in this context means the power to make certain decisions for oneself, instead of allowing government the right to decide for you, which is the way it was in the area of abortion pre-Roe (1973) and contraception pre-Griswold (1965).  That's why the reference to a woman's right to choose for herself, as opposed to the neighbors doing the choosing for her by acting throuigh government.

In a nutshell:

PDP = Notice, Hearing
SDP = Liberty

See also Amend 9, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people;" indicating that the Framers understood that they weren't purporting to list all rights, but were just labeling or summarizing general categories of rights such as to life and liberty.  Life thus can mean what makes living meaningful, such as the right to marry and form families, not just the right to be free from capital punishment w/o a trial.  Life and liberty thus become the elastic words that encompass the world.  The fight is always over whether one is willing to stretch the terms to protect disfavored minorities, with liberals pro and conservatives contra.

Refer your colleague to the web site if you like...

Bob

***

Later the following discussion occurred on the Conlawprofs listserv.

CLASS ACTIONS, STATISTICS, COMMONALITY, TYPICALITY, & 1.5 MILLION TRIALS: WALMART

Suing a big retail chain that rakes in billions of dollars is not apt to attract its attention unless you have 1.5 million plaintiffs suing for even more billions of dollars.  You need deep pockets to play this game. After you get your class certified in U.S. District Court alleging, in Dukes v. Wal-Mart gender discrimination, expect the company to fight back, and not always under the Marquis of Queensbury rules of fair play.

There's either going to be a trial of dueling statisticians or, if Wal-Mart has its way, 1.5 mini trials.

I attended the argument before the Ninth Circuit yesterday in the Marble Palace at 7th and Mission, where the overflow crowd was accommodated in another marble courtroom presided over by, in addition to Judges Andrew Kleinfeld, Harry Pregerson, 81, and Michael Hawkins, a purple clad goddess of justice with the Ten Commandment tablets next to her leg, with Hebrew lettering.  Barely constitutional, I thought, under McReary County v. ACLU and Van Orden v. Perry (2005), on historical, humanitarian, and allegorical, grounds, plus no big complaints.

What interested me enough to walk over to the federal appellate courthouse was the question of what it took to get a big retailer to pay attention to complaints from employees and and other small entities, such as customers.

Theodore Boutrous of big LA firm Gibson, Dunn & Crutcher, representing Wal-Mart caught a faceful of flak from Judge Pregerson over the nasty tone of his brief, critical of the trial judge who ruled against his client.  The judge suggested that perhaps Boutrous hadn't personally written all the parts of his brief, but that he owed an apology to Judge Martin Jenkins. 

We never like judges who rule against us, figuring it's THEM who're nuts, not us.  That doesn't mean it's a good idea to say so in print where the stink tends to hang in the air for a long time, or even orally. 

The best thing to do is never to say nuttin' about a judge, ever.  That way you don't have to eat your words or worry about them coming back and biting you. 

No one cares what the losing lawyer has to say about the winning judge, anyway, and judges always come out on top, even when they're wrong.

Your job is to be able to come back and fight again another day.  Hard to do when you've burned your judge.  You might get remanded and find yourself standing before the same judge someday, wondering whether he, or worse, she, has it in for you.  You won't sleep as well at night and you'll wonder whether you lost the next decision because you screwed up because your client's side didn't have it on the merits or it was a close case and what made the difference was that you'd ticked off the judge and s/he just somehow couldn't find the merits in yours.

[Later:  The controversial brief (PDF) is here.]

Before a class can be certified, the plaintiff must prove that the plaintiffs all have some issue of fact or of law in common with each other such that the active plaintiffs will well-represent the absentee plaintiffs.  The active participants must be typical of the class.  Hence the headline issues of commonality and typicality.

Trying to slay the dragon with a huge class that could win big and cost the giant billions was Brad Seligman who knows what he's doing.

Boutrous seemed to be holding the spectre of interminable trials (maybe 1.5 million or so) before the judges, while Seligman seemed to think otherwise.  Judge Kleinfeld suggested that maybe Wal-Mart should just settle.

It was difficult to say which way the court might decide.  Kleinfeld suggested that even though Wal-Mart left hiring decisions to its 3,400 local store managers, he wasn't sure there was anything wrong with this even if it did produce gender inequality in hiring because this is the way he and other federal judges hire law clerks.  If Kleinfeld rules for Seligman he may have to come to the realization that the federal judges have been doing the wrong thing themselves for a long time.  He noted with some apparent relief that judges, at least, have immunity.  Or at least qualified immunity.  No one mentioned in oral argument whether the statistical disparity cited by plaintiffs in hiring, by gender, amounted to discrimination that was intentional, which is the requirement of Washington v. Davis, or whether unintentional discrimination was sufficient to merit a damage award.

Judge Kleinfeld was on top of the idea that both sides were arguing the meaning of statistics and the trial might become a battle of statisticians.  Statistical inferencing is an interesting subject and this is a good case for the proposition that we need to make the subject a part of our intellectual war chest.  There are all sorts of good tutorials on the Internet, as I learned when I had to come up to speed to cross-examine the medical examiner in a multiple murder-conspiracy case.  With the help of a medical expert who was himself an expert in statistical inferencing I was able to a creditable job in the sense that on questioning, the ME admitted to enough mistakes to get the case thrown out.  The truth was in the numbers, and my client escaped justice by a tenth of a billionth of a gram, or achieved justice, as the case may be according to viewpoint.

Bob Egelko of the San Francisco Chronicle reports on the case below:

GUANTANAMO

In the American criminal courts that I've attended for a lifetime, all defendants are routinely brought before the bar of justice where the judge invariably treats them civilly, advising of rights, inquiring of plea and ability to afford private counsel, appointing counsel at public expense, setting dates, conducting hearings and trials, etc., no matter how grave the accusation, no matter how much publicity has persuaded the judge and everyone else of ovewhelming likelihood of guilt, of the most outrageous conduct against society.

It is as though a certain pride is taken by judges in treating all persons with respect, respecting the basic human dignity of the worst-of-the-worst, the most depraved imaginable.

Doing less makes the court less.

We are an American court, we seem to say. We show the world that we treat all people with human dignity, whether anyone else thinks they deserve it or not. Respecting form is the order of the day. Due process of law, regardless of worthiness.

In matters of respect, form IS substance.

It reminds me of the story of an American president, seated on his porch greeting constituents, in a day when American tradition treated blacks with less respect than whites.

A black American walked past the president, tipped his hat, and said, "Good day, Mr. President."

The president likewise tipped his hat and said, "Good day to you, Sir."

A white bystander asked whether the president would like it known that he was so courteous to a Negro.

"Would you like it known that a Negro was more courteous than the President of the United States?" the president asked.

Guantanamo.

Detentions.

Of people, fighters against us, picked up on battlefields in Afghanistan. Magic carpeted to Cuba.

Indefinitely.

Not brought to court.

Not told of any charge.

Not afforded an opportunity to refute any charge.

No communication.

Not allowed to see friend or counsel.

Isolated.

Interrogated harshly, on the pretext of security.

Not treated as POWs.

Not afforded the Geneva Convention.

Driven to suicide.

Not treated as we expected American POWs to be treated in Germany and Vietnam.

What is American about this?

This is right by the law of which land?

This is the law of no land.

Not America, since 1787, the Constitution.

Not Britain since 1215, Magna Carta.

Nor, at long last, since Hamdi, 2004.

We needed to consult the cases on this?

Justice Wiley Rutledge remarked on the early days of the U.S. Supreme Court, before it had lawbooks, which were bought years after the Court began. Chief Justice Marshall wrote five great decisions citing no cases, relying on his understanding of right and wrong, Rutledge said, observing that things have gone downhill since.

Perhaps we confuse ourselves, choking ourselves on split-hairs, when we pore too much through the cases, cases decided the wrong way in the wrong time, when we should be sitting calmly on the porch and thinking simply and clearly in terms of plain human dignity.

Not just for the sake of the dignity of the disdained, but for the dignity of our Nation.

Do we want it known that we treated a prisoner with less dignity than he treated us?

We're not the first nation to have been attacked, nor the last.

A different president, in our White House, did this.

And now, with the Court at last requiring some semblance of a hearing, the president is releasing these prisoners before a hearing can be held, as though he cannot tolerate such hearings, on conditions extracted under duress before release and promptly ignored after release.

Under what tradition do we operate?

DUE PROCESS

Two words, due process, that generate volumes of explanation. What do they mean? Where do the words come from?

The words stand for an idea. They constitute a label for a notion that we have in our heads. Like most notions we have in our heads, due process is a bit malleable. Not very malleable, perhaps, but enough.

We trace our notion, that is the British and then the American, back to Magna Carta. The Barons at Runnymede in 1215 were fed up with despotic King John and decided to do something about it. They didn't quite write a Declaration of Independence, as Thomas Jefferson and the American Colonies did in 1776, but the Barons did something fairly momentous.

They drew their swords, figuratively speaking, and maybe even literally. At swordpoint, they forced King John to sign an agreement or charter. This great charter provided that no more would the king take the property of the barons, and they had a lot of property otherwise they wouldn't have been barons, without resort to law. The barons wanted the right to say, "Not so fast, I want to be heard about this taking. And if my entitlement is greater than yours, you can't take it. I want a hearing. You haven't been listening to me. You'd better listen, otherwise, see this sword?"

That's due process. The right to be heard, and not to be heard just by the king or his loyal agents, the king-appointed judges, but by some neutral arbiter. Such as a jury of one's peers. Fellow nobles, later commoners.

As stated, we trace the idea back to Runnymede in 1215. But that's only because the principle is SO old that to trace it back further would be a nuisance and close to 800 years seems long enough to be impressive.

The actual idea of due process probably goes back to some time before we learned to live in caves. When Og, the clan leader, accused Mog, a tribal member, of committing some offense such as child abuse and Mog happened not to be guilty this time, Mog probably spoke up in his own defense. Og probably couldn't have shut him up without having to answer to his fellow clan members.

To have punished Mog without letting him speak, and call Og's son, with whom he happened to be out hunting at the time of the crime, as a witness, would have been seen as unfair. The punishment would have been regarded as illegitimate. Og would have lost stature in the community of which he was chief. So Og had to let Mog speak and call Og's son, Blog, to testify as a witness. An early trial. Due process. If the assembled tree-dwellers agreed that Mog was out hunting with Blog on the day of the crime, there'd be no sense in punishing him, would there. And now that Mog was acquitted, he was now free to marry Og's daughter, Slog. And everybody lived happily ever after. Because of due process.

Even a chimp knows when it has been wrongly punished. My authority for this is Holmes. Holmes said that even a dog can tell the difference between being kicked and being stumbled over. He doesn't say where he got that. So I don't say where I got the bit about the monkeys. Probably from the same place. I made it up. But it sounds good, doesn't it?

The Barons at Runnymede didn't use the words "due process." What they said, actually, was, that their property, and their lives and freedom, could not be taken except after a trial whose outcome was decided "by a jury of their [or our] peers." [The correct quote is on the heading of this Blawg. Raise your eyes and wonder.]

By peers they must've meant other barons. Who else would embody the requisite sympathy for landed estates and against arbitrary expropriation by the king and his appointed judges? Not the serfs, I don't suppose.

We all want a jury of our peers. I represented a native of the ancient walled city of Lucca, Italy who shot his unarmed neighbor five times. In self-defense, of course. Nasty neighbor. What kind of jury would you like, I asked out loud one day. "I want twelve Lucchese 'dentra mura' (from within the walls)," he replied.' I'm sure he did.

This procedure where you get a hearing is called due process of law. It means you get heard out. You have your day in court. It's supposed to be fair. When government does something really important, such as take your land or your life or liberty (throw you in jail or take your life) you naturally want a chance to be heard.

Sometimes you get a full blown jury trial, and sometimes you don't. There are no jury trials in divorce and custody cases. Aren't kids important? Not enough to require a jury trial over a change in custody, apparently.

What about prisoners, do they get a jury trial when they get written up and punished administratively, such as by being placed in a more uncomfortable cell? No. Due process has its limits. The limit concerns how much process is due.

A prisoner, if the administrative punishment is serious enough, may be entitled to an administrative hearing before a prison staff member. Not quite the same as a jury of the prisoners peers, but there you go, reaching the limits of practicability.

In the U.S., we've added a whole new dimension to the idea of due process. We call the right to a fair hearing kind, meaning notice and a fair opportunity to defend, 'procedural due process,' i.e. the old-fashioned or classic kind.

But our 14th Amendment (ratified 1868), enacted after the Civil War, provides that "No state shall...deprive any person of life, liberty, or property without due process of law."

The word 'liberty' turns out to be a balloon word, elastically capable of being blown up large enough to contain a whole world of rights that aren't set out anywhere in the text of the constitution. When someone objects to an asserted new right on the ground that is found nowhere in the Constitution, the proper rejoinde is, "Have you looked to see what 'liberty' includes lately?"

Liberty includes lately the right of married people to use contraceptives. Lately as of 1964 in Griswold v. Connecticut. Expanded further to include unmarried people and even minors. As a matter of privacy. The word privacy is nowhere found in the Constitution, but there are several provisions that protect the right, so it must be there in background, at least. So said Justice William O. Douglas, a former law professor and no mean interpreter of the Constitution and developer of the word liberty.

Douglas pointed to the guarantees against quartering troops in the home (3rd Amendment) and against unreasonable seizures (4th Amendment) and others, and concluded that what they were really trying to accomplish was to keep government off the backs of the people absent compelling need. And he saw no need for government to peek into bedrooms and the back seats of automobiles. Why would government need to do that, he must've wondered, because he wrote for a court that outlawed it.

He found the right to privacy in the "penumbras and emanations" of textual guarantees of the Constitution. His antennae were out, to have discerned those. Penumbras are shadows. Emanations are radiation. Pretty clever for Douglas to have seen the invisible, right? That's the thing about legal notions. They exist, invisibly, in our heads until we put them into words and carve them in stone.

"Equal Justice Under Law," it says, carved in stone, on the lintel over the entrance to the Supreme Court. Nice notion. What does it mean? Different things to different people at different times, I guess, otherwise Thomas Jefferson might have had to write in a few exceptions when he wrote, in the Declaration, "All men are created equal," for he owned slaves, along with much of the country for which he was writing.

But it was a good thing he wrote it the way he did, because that allowed us to change the notion around over time, after a lot of struggle, still underway. By using few words, and those elastic, we can change the meaning, hence the rules, over time.

Change, of course, meets resistance. But that's a whole 'nother topic.

To wind up the business about 'liberty' being an elastic term that includes an unknown number of rights that we can call liberty if we want, the right to privacy in contraception morphed into the constitutional right of a woman to control her own bodily functions including whether to bear or beget a child, the famous abortion right that has been so controversial following Roe v. Wade.

Recently in Lawrence v. Texas (2003), overruling Bowers v. Hardwick (1987), the rights of gays not to be treated as an exception to the equal protection guaranty was announced on due process liberty grounds. Two guarantees were in play here, with Justice Anthony M. Kennedy writing for the Court on liberty/due process grounds, which includes the privacy right, and Justice O'Connor agreeing with the result on equal protection grounds. By protecting the privacy of gays on liberty grounds, the Court supports the privacy right for all of us in our intimate affairs.

Due process affords us the right to decide for ourselves as to how to lead our lives when it comes to private choices that busybodies, neighbors, and government has no right to stick their noses in. This is the principle known in English, for centuries, as "Mind your own business." It is the right to be "let alone," as Justice Brandeis described it.

To distinguish these rights that flow from the substance of the word liberty from procedural due process, above, they are called 'substantive due process' rights. Some scholars criticize such rights as non-existent and just made up by the justices of the Supreme Court as they go along, "activist judges" they call them, but where would we be without them.

Do you think it likely that a constitutional amendment would pass protecting the right of teenagers and unmarried people to use contraceptives, have abortions, form same sex relationships and express them intimately? I doubt it.

Because the Court has the right, make that power, to interpret the Constitution and to declare laws found by the justices to be in conflict with it as unconstitutional, critics, usually conservative critics opposed to non-textual change outside the amending process, claim that the Court is acting undemocratically as a super-legislature and thus over-riding the will of the people.

Liberty lovers, by contrast, accept the legal slight of hand by which the non-elected branch nullifies the work of the democratically elected bunch, and call this thwarting the tyranny of the majority.

So there you have due process, procedural and substantive, in a nutshell, and I'm going for a walk, where I think up more of these explanations. That's what I do. I teach Con-law, in case any of the visitors are unaware.