Critique Of: Square Pegs and Round Holes: Substantive Due Process, Procedural Due Process and the Bill of Rights.

Introduction

The article, Square Pegs and Round Holes: Substantive due process, procedural due process and the Bill of Rights, evaluates the use, or lack thereof, of substantive due process in court system rulings. The author, Peter J. Rubin uses two cases Parratt v. Taylor and Graham v. Connor to highlight the restrictions that are placed on substantive due process from our court system. To understand the article we must first understand what substantive due process is.

Substantive due process “protects an individual’s life, liberty, or property against certain government actions regardless of the fairness of the procedures used to implement them” (Clarkson, Miller & Cross 2012). Substantive due process is able to limit the government’s legislative and executive capacities and the legislation must be fair and reasonable and further a legitimate governmental objective. If a law or other governmental act violates or limits a fundamental right, the state must have a compelling interest to justify its action. Fundamental rights are interstate travel, privacy, voting, marriage and family, and all First Amendment rights.

Graham v. Connor, Graham a diabetic was having a low sugar reaction and asked his friend to drive him to a local convenience store, where he quickly entered and left because the line was too long. Connor an officer who witness Graham’s quick entrance and exit from the store stopped Graham a mile down the road to investigate what went on. Graham explained the situation, exited the car, ran around and passed out briefly. Connor called for backup and contacted the store to see what if anything had happened. Back arrived and Graham was cuffed and spoken to and moved around roughly, once it was determined nothing had happened at the store Graham was taken home and released. Graham received a broken foot, cuts on his wrists, bruises on his head, and an injured shoulder in the encounter. In this case, the court ruled specifically that if there was another law that provides specific textual source against this type of infringement then it, not the more generalized substantive due process would be used.

Parratt v. Taylor, Parratt and inmate in a Nebraska state penitentiary ordered hobby supplies by mail. The supplies were lost so Parratt brought suit to recover their value. The court decided that even though he was deprived of property under the color of the law, because Nebraska has state tort laws to remedy post deprivation; that was sufficient to cover all the process that Parratt was “due.”

Strengths

Rubin was extremely thorough in all his explanations and descriptions of who, what and why the rulings were made the way they were. He tried to touch on everything he could and make a point to have a rebuttal for any argument that might come up. He even focuses a large section of the article