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The Religion of Procedure


Posted on October 16th, by Jonathan Levy in Updates. No Comments

Though it may seem at odds with my intense patriotism, I spent the Columbus Day weekend in Paris, but—rest assured—my mind never strays too far from our topic on the Roundtable. On the flight back, I watched a few episodes of the riveting, thrilling, and smart HBO mini-series “Rome.” The show chronicles the transition from Ancient Rome’s republic to Julius Caesar’s dictatorship to his adoptive son’s reign as Augustus Caesar. I have seen the series many times before, but this weekend, one particular scene caught my attention in a new way.

To simplify the several complex plot lines, in the scene, the full Roman Senate sits with Consul Pompey Magnus presiding. The Senate is debating what to do about the renegade Julius Caesar and, in hard-line conservative Cato’s appellation, Caesar’s “illegal war.” Famed orator Cicero has calculated that if he leads his moderates to side with Cato’s anti-Caesarian resolution, Tribune Mark Antony will use his veto to prevent his patron and mentor Caesar from being named a public enemy. When Cicero votes, however, violence breaks out on the Senate floor, but the newly-elected Mark Antony, seemingly unaware of his veto power sits back smirking. Cicero, a procedural savant, calls to Mark Antony over the melee, who belatedly calls in his veto. When the fracas subsides, the presiding magistrate tells Cicero and Pompey that the veto was not counted because Mark Antony did not formally have the floor. Pompey scoffs at this, refusing to let Caesar’s status as a criminal be determined by a mere rule of procedure, to which the magistrate, with renewed energy responds that procedural rules are the most sacred in the republic.

What struck me about this scene was the mixing of religion and law. I subscribe to a view of the First and Fourteenth Amendments similar to that of Professors Akhil Amar and Noah Feldman, which does not require a strict separation of religious thought from local governments. Nevertheless, the notion that procedure could be of paramount religious importance had never before occurred to me—but even if it no longer carries the spiritual element, procedure is still supreme in American law. Indeed, where procedure is deemphasized, so too is the Constitution’s guarantee of “due process.” Thus, when thinkers opine on “The Little Rule Change By House Republicans That Guaranteed A Federal Shutdown,” the very essence of American law is attacked.

Procedural complaints arise often, and from the Right as well as the Left. And when advocates cannot win on the merits, seeking refuge in procedure can be a necessary element of zealous representation. Still, procedural rules are not subservient to substantive rights. Rules of procedure are never “little.” They are a double-edged sword that defends individuals from federal, state, and local governments in addition to fellow citizens. They did not descend from on high, but they are nevertheless foundational to a government of laws, and not men.