Law & Process | April 1999

FMBR Editorial: April, 1999

Law & Process

Marshall Pease

Now that the long agony of the impeachment crisis is mostly behind us, it is time to take a look at some of its aspects beyond the bare facts – aspects which affect far more than the particular case and its immediate consequences. In fact, the aspects I refer to provide a case history of a deep-seated continuing problem in our culture and the world. This is the issue of how to balance substance versus process. The problem is that process does matter, yet the immediate attention is almost inevitably focused on substance.

The founders of this country rebelled against England in large part because they did not see England’s rule as governed by any trustworthy process. “Taxation without representation” became a rallying cry. They condemned the throne’s use of bills of attainder, depriving a person of all civil rights, as an arbitrary abuse of power. When it was time to write the Constitution, much of it was written to ensure that we would not only have a government of laws to ensure freedom from tyranny, but also to provide that those laws would be enforced in an orderly way. Indeed, the principles of law were largely left to the Constitution’s preamble. The main content of that document, its articles, addressed the processes by which those principles should be implemented.

In the immediate context of our recent crisis, there remains the question of whether the Starr investigation used appropriate processes. Many of Starr’s supporters see the challenge to his methods as outrageous, an effort to discredit his “patriotic” efforts. They ignore the conviction of others that the challenges raise serious questions of process – questions that go to the heart of our system and rightfully demand answers.

On a broader scale, there are those who deplore any recognition of the rights of criminals, and even question if those who are merely accused of a crime do not have too many safeguards in the law. This, I suppose, is inevitable. Prosecutors, victims and everyone on the side of law demand an effective response to crime. It is easy to see issues of process as “mere technicalities” with which the accused can avoid just penalties. The benefits of processes which limit the prosecution during the trial and the punishment, if the accused is actually found guilty, are abstract and long-range, designed to protect the system, not to ensure the system will work properly in any particular situation. Those processes may appear no more than arbitrary obstacles to justice. Yet it remains true that, if the established processes protecting the accused are ignored or somehow subverted by the enforcement agencies, the very foundations of the Constitution and our country are denied.

On a still broader scale, one of the major difficulties in the international arena is the absence of any agreed process for handling disputes. There are conventions accepted by most countries and diplomats and usually adhered to. There are agreements, treaties and protocols which serve well enough in ordinary disputes. But there are no enforceable processes providing a foundation to fall back on when necessary. The ultimate enforcement, therefore, depends on the use or threat of arms – and finally by war. In other words, there is no last resort process except the ancient one of trial by combat.

I wonder if the failure to appreciate the importance of processes may not contribute to the continuing failure of the world to find ways to build peace. If so, maybe this is one area we should consider as we try to build a better world.

Marshall Pease, April 1999