Tribe, Laurence 1980 The Puzzling Persistence of Process-Based Constitutional Theories

Substantive commitments form a significant portion of the Constitution (Part I).
Determing what improves and what obstructs process requires an understanding of the substantive goals to be achieved. (Part II)
Identifying procedurally (process) disadvantaged groups requires a value based determination of which identifiable groups are to be recognized and protected. (Part III)

See also: Democracy and Distrust Ackerman, Bruce The Substance of Process 1981 (PDF)
Ortiz, Daniel Pursuing a Perfect Politics: The Allure and Failure of Process Theory 1991 (PDF)
Ely at the Altar: Political Process Theory through the Lens of the Marriage DebateMarriage Debate 2011
Sex and Marriage, Gay Marriage: Obergefell v. Hodges (2015) written 2023-04-17 (Full opinion, dissents.)

2023-10-09: Tribe, Laurence The Puzzling Persistence of Process-Based Constitutional Theories 1980

• By invalidating legislative or administrative acts of this sort [which obstruct political representation and accountability; which reveals the existence of past or present obstructions], the Court can reason, it avoids controversial judgments about substantive issues left open by the Constitution's text and history, and safeguards the representative character of the political process.
• Such an account permits courts to perceive and portray themselves as servants of democracy even as they strike down the actions of supposedly democratic governments.
• In the most recent and lucid argument for a process-perfecting view of constitutional law, John Ely's Democracy and Distrust ....
• The process theme by itself determines almost nothing unless its presuppositions are specified, and its content supplemented, by a full theory of substantive rights and values--the very sort of theory the process-perfecters are at such pains to avoid.
• If [so] ..., why do thoughtful judges and scholars continue to put forth process-perfecting theories as though such theories could banish divisive controversies over substantive values ....
• Part I -- The Constitution's Openly Substantive Commitments (1065)
• ... the First Amendment's guarantee of religious liberty and its prohibition of religious establishment are substantive ...
• ... the Thirteenth Amendment, in its abolition of slavery and repudiation of the Constitution's earlier, ..., protections of that institution.
• ... [the Fifth Amendment's] substantive commitment to the institution of private property ....
• ... the Fourth Amendment ... ubstantive concern for individual "privacy" .... [brought forward from page 1069)
• The contracts clause of article I, section 10 is another.
• What is puzzling is that anyone can say, in the face of this reality, that the Constitution is or should be predominantly concerned with process and not substance.
• Even the Constitution's most procedural prescriptions cannot be adequately understood, much less applied, [without] the kinds of controversial substantive choices that the process proponents are so anxious to leave to the electorate and its representatives
• Part II - The Substantive Roots of Procedural Norms (1067)
• Much of the Constitution does indeed appear to address matters of procedure. ... adjudicative process--the process due to individuals who become defendants in criminal or civil litigation or targets of administrative actions. ... representative process--including the process that governs the election of Congress, of the President, or of state representative bodies.
• The very dichotomy just drawn--between adjudicative and representative process--would prove incoherent without a substantive theory.
• How do we decide which form of participation the complaining individual may claim: the right to be heard as a litigant, or the right to be counted as a voter?
• Deciding what kind of participation the Constitution demands requires analysis ... of the character and importance of the interest at stake .... [which] requires a [substantive] theory of values and rights ....
• ... one must again rely on substantive values in elaborating the requirements of either procedural form. adjudicative process: self-incrimination and double jeopardy ... rights to counsel, confrontation, bail, and jury trial ....
• ... the Supreme Court, which has never fully embraced a purely positivist theory of procedural due process. The only alternative theories, however, are ones that posit a right to individual dignity, or some similarly substantive norm, as the base on which conceptions of procedural fairness are constructed.
• ... the process-perfecter must treat process as ultimately instrumental, as but a means to other ends, and thus must regard as secondary what he would at the same time celebrate as primary. [emphasis added]
• The process theorist is similarly confounded by questions about the right to vote. One set of issues concerns who votes. The second set of issues concerns how voting power is to be allocated among those who are included within an electoral constituency.
• But generally, the Court has enforced the famous rule announced in the reapportionment cases: one person, one vote. The obvious substantive underpinnings of this rule--its role as an expression of the equal respect in which we as a society aspire to hold each individual--all of this the theorists of perfecting process must ignore.
• Part III -- The Quandary of Whom to Protect (1072)
• ... perhaps the core "process value" is the value of protecting certain minorities from perennial defeat in the political arena.
• The idea seems as simple as it sounds reasonable .... until we ask how we are supposed to distinguish such "prejudice" from principled, if "wrong," disapproval. Which groups are to count as "discrete and insular minorities"?
• One cannot speak of "groups" as though society were objectively subdivided along lines that are just there to be discerned. Instead, people draw lines, attribute differences, as a way of ordering social existence--of deciding who may occupy what place, play what role, engage in what activity.
• If so, the conclusion that a legislative classification reveals prejudicial stereotypes must, at bottom, spring from a disagreement with the judgments that lie behind the stereotype: judgments about the propriety of the options left to individuals or the burdens imposed on them.
• Any constitutional distinction between laws burdening homosexuals and laws burdening exhibitionists, between laws burdening Catholics and laws burdening pickpockets, must depend on a substantive theory of which groups are exercising fundamental rights and which are not.
• Accordingly, the idea of blacks or women as properly segregated beings can be rejected only by finding a constitutional basis for concluding that, in our society, such hierarchical visions are substantively out of bounds, at least as a justification for government action. [emphasis added]
• Necessarily, such an approach must look beyond process to identify and proclaim fundamental substantive rights.
• Thus it is puzzling indeed that process-based approaches-designed to deny the need for, and legitimacy of, any such substantive theory--should nonetheless continue to find such articulate proponents and persist in attracting such perceptive adherents.
• Part IV -- The Closed Circle of Political Openness (1077)
• ... might another value, that of "political openness"--of clearing the channels for change through speech and voting--be salvaged as a unifying theme for the process-minded?7
• But there are at least three fundamental difficulties:
• The first problem is the inherently incomplete nature of channel-clearing as an aim. Why should politics be open to equal participation by all? Doesn't that norm itself presuppose some sub- stantive vision of human rights?
• The second problem is the absence of any plausible stopping point for channel-clearing theories. To accord special protection to advocacy alone is to censor those messages that can be conveyed only by example [ommunal living arrangements or homosexual marriage, for example]. Moreover, dichotomies such as speech and conduct, expression and action, or persuasion and instruction, do not in truth separate.
• [The third problem] The state shapes society almost as much as society shapes the state .... subsidies to "major" political parties ... failure ... to compensate school districts lacking "rich" property tax bases ....
• Such government actions are at present constitutional ... and defeat the self-defining, value-forming, and power-amassing efforts of all but the more standard social groupings. [protecting extended families vs households of unrelated individuals; group legal services protected vs group health plans not. See text for cases.]
• The puzzle is that the failure of process-based theories even to speak to this danger should be so readily and persistently excused or overlooked.
• Part V -- A Broader Role for Constitutional Theory (1079)
• One final and closely related puzzle ... the willingness of so many to embrace process-based theories in the face of their virtually total incapacity to inform the content of public discussion, debate, and decision.
• ... we are left with a final puzzle, one to be explored in a later essay: what does it say about our situation, and about the prospect for constitutional theory, that views so deeply problematic continue to exert so powerful a grip upon our thought?