Due Process: Whose Fascism? Our Fascism!
by

“Terrorism is not just killing with a bomb, but activating ideas,” Gen. Jorge Rafael Videla told his interviewer, by way of explaining why a paraplegic activist had been “disappeared.”

In Christopher Hitchens’ retelling, a few of the Argentine dictator’s staff officers glared at him as they realized the general was being too candid. Even these men, who flew their victims far out over the icy South Atlantic before disembarking them mid-flight, had some sense of shame.

The new left has none. The same folks who take the name of anti-fascism take up with bare faces Videla’s argument that speech may amount to violence, the argument by which he made more than 9,000 people disappear. The left’s spin is that hate speech in particular is somehow categorically separate from free speech. I’ve landed a few quips in my day, but none forceful enough to send that paraplegic rolling off a loading ramp.

Antifa and their fellow travelers have spent the past nine months warning of the imminent onset of fascism. Yet on the day when the Trump Administration reverses the single most fascistic impulse of its predecessor – the infamous “Dear Colleague” letter – Left Twitter spent a day mocking due process.

Now, I share (if nothing else) their sense of alarm. Winter is coming. But fairness compels me to admit that President Trump, for all of his fussing and bluster, has yet to commit a single abuse of power equal to the term, so far as we know, while we could talk about President Obama’s abuses of Constitutional process for an hour without once needing to Google anything.

Chiefest among these abuses: the letter. “Dear Colleague,” it began. “What dire Offence from am’rous Causes springs. What mighty Contests rise from trivial Things.” Or, no it didn’t. That was Alexander Pope, who amused himself by dreaming up an epic struggle over a trivial bit of hair-snippery, deemed a rape. The bureaucrats have no irony. If hair-snipping counts as rape, they figured, then surely close-talking, mansplaining, and butt-slapping do, too. Put it together, and claim one woman in five will be sexually assaulted in college.

The correct number, according to the Department of Justice, is 0.6 percent of undergraduate women annually, which is a serious matter, but a lower rate than that that for women of the same age who aren’t in college.

After overstating the prevalence of sexual assault on campus by a factor of 10, Obama’s Department of Education decided that the way to address it was to confound it with every awkward aspect of undergrad hookup culture, and then add a bunch of vicious lawyering unadulterated by the competence of actual lawyers.

“Here is what it looks like,” Secretary of Education Betsy DeVos told an audience last week:

A student says he or she was sexually assaulted by another student on campus. If he or she isn’t urged to keep quiet or discouraged from reporting it to local law enforcement, the case goes to a school administrator who will act as the judge and jury.

The accused may or may not be told of the allegations before a decision is rendered. If there is a hearing, both the survivor and the accused may or may not be allowed legal representation.

Whatever evidence is presented may or may not be shown to all parties. Whatever witnesses — if allowed to be called — may or may not be cross-examined. And Washington dictated that schools must use the lowest standard of proof.

And now this campus official — who may or may not have any legal training in adjudicating sexual misconduct — is expected to render a judgement. A judgement that changes the direction of both students’ lives.

The right to appeal may or may not be available to either party. And no one is permitted to talk about what went on behind closed doors.

In all that may-or-may-notting, DeVos shows us the exact way to understand what the founders meant by due process. It is, in the first place, not that. It is not a buffet of options for the powers that be, not a list of pretexts from which they select the grounds for your abuse. Due process is our practical approximation of the word justice, the closest we can come to systematizing the ineffable. If we cannot guarantee justice is actually done in court, we can at least provide some safeguards against the whims of the powerful.

Campus show trials provide nothing of the sort. They’re not even trials. If we take as one pole our standard civil and criminal procedures and take as another pole justice as practiced by Videla and his fleet of unmarked Ford Falcons snatching people off the streets, Title IX show trials are closer to the latter.

There are two things to remember about the sort of fascism that became commonplace in the Americas during the Cold War. One is the depths of evil into which it could sink: Videla was ultimately convicted, decades after his rule, for selling off the babies of the raped torture victims he kept in his own private prison. The other is that fascists weren’t necessarily wrong about their enemies: Communist revolutionaries were every bit the threat Islamic terrorists are today.

We need order and security, we need lawful authority, but it’s due process that keeps authority from becoming oppressive. That’s why we can’t have the chem TA deciding on the admissibility of morning-after text messages from bae.

DeVos cited some of the abuses we’ve written about, and others:

A student on another campus is under a Title IX investigation for a wrong answer on a quiz.

The question asked the name of the class Lab instructor. The student didn’t know the instructor’s name, so he made one up — Sarah Jackson — which unbeknownst to him turned out to be the name of a model.

He was given a zero and told that his answer was “inappropriate” because it allegedly objectified the female instructor.

He was informed that his answer “meets the Title IX definition of sexual harassment.”

Now, there’s nothing in the Constitution that guarantees our specific right to use common English names in conversation, no law that could have anticipated this specific weirdness. Yet most folks, and nearly all conservatives, I would hope, have the moral sense that there is something deeply unjust about the student’s treatment at the hands of a government official. Nobody should have his life and reputation ruined by an official arbitrarily convicting him of sexual misconduct.

Not everybody would agree with me. In fact, I think the first to dispute this would be our leading conservative legal scholars of the last generation. I have in mind the late Robert Bork, but I think all of the conservative justices of the Supreme Court whom he influenced would likely raise the same objection: I’m talking about substantive due process, a judge-made doctrine that shifts the emphasis of review from procedural formality to the substance of a decision. Was justice actually done?

The doctrine only applies when Constitutional rights are at stake — free speech in this case — but conservatives still object that the idea is too vague, too spooky, too unworkable. “The Fourteenth Amendment’s Due Process Clause is not a secret repository of substantive guarantees against unfairness,” Justice Clarence Thomas has written.

But why shouldn’t it be? Bork’s concern was that too much emphasis on amorphous individual rights would “deny the majority’s legitimate right to govern,” and this remains a valid issue, but it’s not conservatives who are sweeping away democratic prerogatives in areas such as immigration, gay marriage, or abortion. In most areas, less emotionally charged areas, is there any doubt that our governments have broad authority to regulate almost every aspect of modern life?

When overweening government presumption has reached the point that the chem TA is entitled to label you a sex criminal on no evidence, isn’t it time that we identify and embrace the principles that might restore some balance between the individual and society?

Us regular folk less wise in doctrinal matters expect of our courts a few things: impartiality, adherence to the law, and above all, justice.

It’s this last demand that befuddles some of the wisest men, because it cannot be systematized, or broken down into component parts. It depends on a sound and sensitive conscience.

Bork saw himself as a combatant against a great number of judges and scholars who knew of no law higher than their own moral sentiments, which he considered mere “predilections,” advising the “semiskilled moral philosophers” to “simply (drop) this line of work altogether.”

I’m glad he taught judges to be humble, but he was wrong to see this is as a binary matter: either faithful textual interpretation or personal “moral philosophy.” It’s both, and needn’t even be so complicated as a philosophy. Judges should faithfully interpret the law and listen carefully to their consciences. This is the standard we should encourage.

There is a big difference between a judge’s personal policy preference and the demands of justice, yet conservatives confound the two, lumping them together in the category of messy subjectivity. Actually, one is mere political opinion, while the other is a keen inner sense that, say, the easy interpretation of a case will produce an unfair result. I’m not offering a philosophy here. I’m saying that it is in resolving these tensions that we can admire the skill and wisdom of judges.

Sure, many judges have deformed and cauterized consciences, just as surely as others have little skill at interpreting the law. But we don’t say that judges shouldn’t try to follow the law just because so many of them are bad at it. So why would we dismiss the idea of justice so easily?

Judges of all types are fine with upholding due process where mere formality is concerned. Contrary to the popular notion of cases getting dismissed on technicalities, this usually takes the form of a judge acknowledging a procedural flaw before ruling that it doesn’t make any difference. So it’s not due process, but substantive due process that I’m concerned with. That might sound like the narrowest of legal distinctions, but I think it’s a point conservatives ought to spend time reconsidering.

After all, the Videla henchman pushing a woman out the back of a plane probably followed all the correct procedures for identifying Communist Jews. I doubt the formalities mattered much to her.

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