The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Following my piece in the Northwestern Law Review, the last post compared the individual accountability and understanding of responsibilities of gun owners and civil jurors. In this post, I turn to the second major difference between the Second and Seventh Amendments: the distinction between substantive and procedural rights.
Here some definitions are in order. For purposes of this argument, what is a substantive or a procedural right? The meaning of the terms "substance" and "procedure" are not always obvious. The line can be blurry. There will always be some degree of arbitrariness in drawing any legal line, including a line between substance and procedure. Also, a line between categories may be drawn in different places for different purposes.
For purposes of this framework for constitutional rights, substantive rules govern primary conduct outside litigation. That primary conduct may be either the citizen's or the government's. Clear substantive rules provide better guidance about what conduct is permitted and what is not. They improve knowledge of the law, and predictability of the system.
Procedural rules, by contrast, regulate the means by which government adjudicates certain disputes. Separate rules of procedure allow the procedural system to focus more precisely on efficiency and accuracy of adjudication. Again, this enhances knowledge of consequences and predictability. In short, the distinction between substance and procedure is important to the rule of law.
Not everything in the U.S. Constitution is a substantive or procedural right. The vast majority of the provisions of the U.S. Constitution are structural provisions; they set out the rules for establishing and running the federal government and its relations to the states and to foreign powers. Substantive and procedural rights are not structural in this sense.
Applying this distinction between substance and procedure, here is a table setting out the division among the provisions of the first eight amendments to the U.S. Constitution:
Division Among the Provisions of the First Eight Amendments to the
|First Amendment||Prohibition on establishment of religion; free exercise of religion; freedoms of speech, the press, assembly, and petition|
|Second Amendment||Right to keep and bear arms|
|Third Amendment||Restriction on quartering of soldiers|
|Fourth Amendment||Prohibition on unreasonable searches and seizures||Requirements for obtaining a warrant|
|Fifth Amendment||Compensation for takings of private property for public use||Grand jury; prohibition on double jeopardy; privilege against self-incrimination; due process|
|Sixth Amendment||Speedy and public trial; criminal jury trial; information about accusation; confrontation with adverse witnesses; compulsory process to obtain defense witnesses; defense counsel|
|Seventh Amendment||Civil jury trial; prohibition on reexamination of facts|
|Eighth Amendment||Prohibition on excessive fines, and cruel and unusual punishments||Prohibition on excessive bail|
Some classifications in this table may seem surprising. Two special notes are in order. First, the Eighth Amendment bans on excessive fines and cruel and unusual punishments are classified as substantive rights. The punishment that may be imposed for crime has traditionally, and rightly, been understood as part of substantive criminal law, not procedure. In contrast, the method of sentencing is procedural.
Second, freedom from unreasonable searches and seizures, the first clause of the Fourth Amendment, is a substantive right. But, to a large extent, the U.S. Supreme Court has transformed that substantive right into a procedural right. This happened in the decision to require the exclusionary rule as a constitutional matter. Instead of the focus being on the substantive right—was a search or seizure unreasonable?—the focus is on whether evidence will be excluded from a criminal trial. But the U.S. Supreme Court has been slowly peeling away the procedural right of exclusion, so there is hope for a more substantive emphasis.
To elaborate further on the distinction between substantive and procedural rights, a "substantive" right does not purport to require a particular procedure in the legal system, and it is compatible with a variety of possible legal systems, including adversarial and inquisitorial systems. In contrast, a specific "procedural" right attempts to ensure the availability of a particular practice to an individual in a legal proceeding, or to require a government official in a legal proceeding to follow a particular practice. These provisions are not compatible with a wide variety of legal systems. They shape a legal system.
In this framework, the Second Amendment right to keep and bear arms is clearly a substantive right. It's compatible with a variety of legal systems, and does not affect the means of adjudication. On the other hand, the Seventh Amendment right to civil jury trial is not compatible with various legal systems and very much affects the means of adjudication. It's a procedural right.
At the end of Federalist No. 83, Hamilton issued a strong warning against constitutionalizing a right to civil jury trial. Concerning the civil jury, he explained, there was need for flexibility to accommodate "the changes which are continually happening in the affairs of society." England, as well as the American states, had reduced the use of civil jury trial, which suggested that its previous extent had been "found inconvenient." There was reason to suspect, he wrote, that this process of limiting the use of juries would continue. In the case of civil jury trial, Hamilton wrote, "I suspect it to be impossible in the nature of the thing, to fix the salutary point at which the operation of the institution ought to stop; and this is with me a strong argument for leaving the matter to the discretion of the legislature." It was better to rely on the structure of government for permanent effects, rather than particular rights. "Particular provisions, though not altogether useless, have far less virtue and efficacy than are commonly ascribed to them …."
But the Anti-Federalists rejected Hamilton's warnings about piecemeal rights and insisted on a constitutional right to civil jury trial. To avoid what he saw as a real danger of a second constitutional convention, James Madison drafted a series of amendments to the new Constitution that included a right to civil jury trial, in what became the Seventh Amendment. (See Renée Lettow Lerner, The Failure of Originalism in Preserving Constitutional Rights to Civil Jury Trial, 22 William & Mary Bill of Rights Journal 811, 827-828 & n. 96 (2014).)
The danger that Hamilton warned about—of putting a straitjacket on legislatures and blocking useful reform—is powerful but subtle with respect to procedural rights. Substantive rights have a core that can be meaningfully interpreted and protected. They can exist independently of a particular government or a particular legal system. Thus the addition or subtraction of a substantive right does not alter the legal system, the means of adjudicating cases, as a whole. But procedural rights are different. Procedural rights do not have such an independent core because they are necessarily embedded in a whole system of legal procedure. They alter that system, and they depend on that system for their meaning.
The next post demonstrates that specific procedural rights are not compatible with all legal systems; they block reform. The U.S. Supreme Court's struggles over incorporation of federal constitutional provisions against the states reflect these problems with procedural rights.