Due Process: Nomos XVIII

5. Due Process, Fraternity, and a Kantian Injunction

5 DUE PROCESS, FRATERNITY, AND A KANTIAN INJUNCTION EDMUND L. PINCOFFS It is impossible to legislate decency in human relations. Decency generally requires that a man seriously and adversely affected by an official's decision be told why the decision was made as it was, and that he be allowed to contest the reasoning that supposedly justifies the decision. Professor Michelman ably exhibits the difficulties that arise in the attempt to reduce these requirements of decency to a set of entitlements under the constitution. On the one hand, the requirements, tacitly acknowledged to be serious and central, cannot be located among constitutional entitlements; on the other hand, a "modest" court will not simply take the requirements as a basis for decision. The consequence is a Swiss cheese argument for heretofore undiscovered entitlements-an argument that masks the sub rosa invention of entitlements under the pretence of discovering them. Immodesty is not avoided, but only concealed. In these brief comments, I will argue that the requirements of revelation to the person affected of reasons for the adverse decision, and of his participation in the decision by contesting, if he wants, the reasons given, have a recognizable and solid moral ground. 172 Due Process, Fraternity, and a Kantian Injunction 173 Michelman hints at what such a ground might be when he suggests that allowing officials to proceed without interchange "would have a meaning that clashes unbearably with a preferred conception of social and political life, in which self-respect is recognized as the fundamental human good which social life affects" (Supra, p. 148.) But Michelman does not (although he does a great deal else) analyze the conception of self-respect involved, nor attempt to show how and why it is fundamental. To link my scattered remarks to Michelman's paper, I will focus on Roth,1 and, in general, on problems of interchange between the administrator and the person adversely affected by the administrator 's decision. I will assume for the sake of argument that Justice Douglas, in his minority opinion, is wrong in insisting on the relevance of the question whether Roth's freedom of speech has been infringed. The question I want to discuss is not whether it is possible to reconcile the demand for revelation and participation with the Constitution; but rather what can be said on moral grounds for the value of revelation and participation, whether the grounds that can be adduced are instrumental or noninstrumental ones. For simplicity, I will confine most of my remarks to participation, since whatever line of reasoning justifies participation (the opportunity to contest the official's reasoning) will justify revelation to the person affected of the official's reasons. As I understand participation, it requires that a person who believes that he may be seriously and adversely affected by some adminstrative action be given a fair opportunity to examine critically the arguments by which the administrator justifies taking that action, and to present counterarguments intended to show that the action is unjustified. In examining the administrator's argument , he may, as Michelman notes, question the validity of the rule or maxim adduced as ground by the administrator, the applicability of the ground to himself, given the circumstances, and the administrator's understanding of the facts of the case that together make up the circumstances. Now suppose that there is at present no likely way to show that Roth is constitutionally entitled to contest the administrator's decision. Suppose that what Michelman calls "judicial modesty" rules out attempts to include participation under the liberty or property provisions of the Fourteenth Amendment. Is there a well- 174 EDMUND L. PINCOFFS founded argument that a less modest court might rightly accept; an argument that would avoid the arbitrary assumptions concerning the relative weights to be assigned to "interests" against which Justice Stewart rightly protests? Let us go back to Roth. Assistant Professor Roth is not, admittedly , entitled to an extension of his contract. He does want reasons why his contract is not being extended, but the president refuses to give him reasons. Roth actually thought that the real reasons had to do with his political views and activities, and he wanted the grounds of this indefensible line of reasoning exposed. But that is irrelevant for the purposes of our discussion. For the purposes of our discussion, it does not matter what use Roth wants to make of the president's reasons, or whether...