The Dark Side of Due Process: Part III, How to Use Irreverent Double-Talk to Speak Back to Bad Men

Abstract

This is Part III of a three part series known as The Dark Side of Due Process published at St. Mary’s Law Journal. Parts I and II precede this article in consecutive issues of this volume at St. Mary’s Law Journal. An Abstract and Foreward for this project are printed at the beginning of Part I, and a general conclusion is printed at the end of Part III.

Due process is the fountainhead of legitimate government coercion. When an individual’s rights of life, liberty, or property are at stake, the government is meant to apply due process of the law or suffer reversal of its intrusions as a plain trespass. However, such reversals are merely theoretical, premised upon the willingness of federal judges to interpose their power for the protection of ordinary individuals.

The willingness of federal jurists to check the other branches of government for individual rights is transient at best. They do not usually check the global, dragnet U.S. surveillance programs that clearly violate the holding in Kyllo v. United States. Their prophylactic measures like Miranda warnings and the exclusionary rule have proven mere symbols of contradiction and irony.

Whenever our institutions appear to be overrun with injustice, well-meaning lawyers always seem to suggest that a Mathews balancing test could solve everything. The seductive belief that a utopia lies just on the other side of a balancing test confirms our doom under the ironies of panoptic Benthamism. As Justice Brennan argued, in dissent of Mathews’ sister case Stone v. Powell, the new cost/benefit balancing tests could be a mere “garb” to add an air of respectability to judicial error.

Justice Powell, the author of Mathews and Stone, was himself a trained Bernaysian propagandist. While on the bench, Powell’s public relations agenda seemed to favor the normalization of injustice through cost/benefit due process ideologies. If Justice Brennan searched a little further into the claims Justice Powell made about the Lochner era, he might have exposed Mathews even more effectively. For it appears that Mathews balancing tests were derived from Buck v. Bell and eugenic pseudo-science.

Despite an aversion to the darkness, this project does not seek to excoriate the dark side of due process. Rather, like Goethe’s Faust, it positions a listening ear in the direction of dark spaces. The aim of this project is to illuminate the substance of penumbral rights and cost/benefit balancing tests—especially their role in systems of oppression. The intended result will be a foothold for seekers of justice in one of our darkest eras yet.

Keywords: cost/benefit balancing tests, penumbral rights, Free Kesha, Kesha v. Dr. Luke, #FreeKesha, John Adams, Isaac Backus

JEL Classification: K00, K10, K20