Essay

The Constitution Promised You Due Process. Here Is What This Court Delivered Instead.

The Fifth Amendment says no person shall be deprived of life, liberty, or property without due process of law. The court that is supposed to enforce that guarantee has spent twenty years systematically dismantling it. The deprivations are not abstract. They are in the water. They are in the bodies. They are in the ballot box and the bank account. They are documented, they are sourced, and they were delivered by five people who were placed on that court through a coordinated private project that Madison himself warned us to prevent.

James Madison wrote Federalist 51 in 1788. His central argument was not about any specific law. It was about human nature. If men were angels, he wrote, no government would be necessary. Since they are not, government must be designed so that private interest cannot capture public power. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. Madison had watched the British Parliament corrupted by men who became, in his words, willing tools of the reigning ministry. He wrote the constitutional architecture specifically to prevent that failure. What he could not have anticipated is that the people who would execute it would use the language of his own document to do it.

The previous essays in this series documented how the current court was built: the Powell Memo in 1971, the Federalist Society founded in 1982 with $24,000 in seed money from the same foundations that funded climate denial and the dismantling of electric transit, the forty-year judicial pipeline that placed six of nine current justices through a coordinated private vetting process funded by donors with direct financial interests in their decisions. That history is documented. This essay is about what the court built by that history has done with its power. Not in legal abstraction. In the lives it has touched and the bodies it has cost.

In May 2023, five justices voted to gut the Clean Water Act in Sackett v. EPA. The case involved a couple who had filled a wetland on their Idaho property. The ruling resolved their dispute and did something far larger: it reduced federal protection of the nation’s streams by as much as 80% and of the nation’s wetlands by at least 50%. Up to 70 million acres of wetlands that previously required federal permits before being polluted or destroyed no longer do. The University of Chicago Law Review called it judicial destruction of the Clean Water Act. The downstream effects of an unprotected wetland do not stay in that wetland. They move through connected waterways into the drinking water of hundreds of millions of Americans. Five people voted for that outcome. None of them will drink from the streams it unprotected. The communities that will are the same communities that have always been closest to the costs of decisions made by people with no stake in the consequence.

In 2022, five justices voted in West Virginia v. EPA to apply something called the major questions doctrine to environmental regulation. The ruling held that agencies cannot take actions of vast economic significance without explicit congressional authorization for each specific action. That sounds like judicial restraint. What it actually does is transfer the authority to regulate environmental and public health matters from scientific agencies staffed by experts to Congress, where it is controlled by the same donor network that funded the court. The EPA cannot regulate what Congress has not explicitly authorized. Congress will not authorize what its major donors oppose. The agency is not abolished. It is made into an instrument that can only act when the industries it is supposed to regulate permit it to act. Every future attempt to address the climate crisis through agency action can now be litigated out of existence by any corporation with the resources to file a challenge claiming insufficient congressional authorization. The deprivation is intergenerational. The people who will suffer most from unregulated carbon emissions are not yet born. They have no standing before this court. The corporations that funded the majority’s confirmation through the Federalist Society pipeline have standing in every courtroom in America.

On June 24, 2022, five justices voted to overturn Roe v. Wade in Dobbs v. Jackson Women’s Health Organization. Sixty-two million women and girls in the United States lost access to legal abortion in their states. The documented health consequences followed immediately. Maternal mortality rose 56% in Texas in the first full year of its abortion ban. Maternal mortality in states with bans is now twice the rate in states where abortion remains legal. Black mothers in banned states are 3.3 times more likely to die than White mothers in those same states. A Johns Hopkins Bloomberg School of Public Health study published in April 2026 found a 9.2% increase in pregnancy-associated deaths in states with bans, equivalent to 68 excess deaths by the end of 2023 alone. Texas saw a 50% jump in sepsis rates among women who lost pregnancies in the second trimester. Infant mortality rates increased 5.6% above expected levels in banned states. Black infant mortality rose 11%. These are not policy outcomes. These are deaths. They are documented in peer-reviewed research. The Fifth Amendment uses the word persons. The women who died in the first year after Dobbs are persons under that clause. They received no process.

In 2013, five justices voted to gut the Voting Rights Act in Shelby County v. Holder, removing the federal pre-clearance requirement that had required states with documented histories of voter suppression to get federal approval before changing their voting laws. Within 24 hours of the ruling, Texas announced a strict voter ID law. Within weeks, North Carolina passed an omnibus voting restriction bill. The deprivation of liberty there is not abstract. It is the practical curtailment of the most fundamental right a citizen holds in a republic: the right to participate in the government that makes decisions over your life. The Voting Rights Act existed because the historical record was unambiguous about what states would do when federal oversight was removed. The record was right.

In 2010, five justices voted in Citizens United v. FEC to allow unlimited corporate spending in elections. The essay on corporate personhood in this series documented what followed: $2.7 billion in super PAC spending in 2024, dark money growing from under $5 million in 2006 to over $1 billion in 2024. Political liberty is a Fifth Amendment liberty interest. When the purchase of electoral outcomes by entities that cannot vote, cannot die, and face no criminal accountability for the consequences of the policies they buy renders the individual vote structurally subordinate, that is a deprivation of liberty by the state. This court created those conditions. It has protected and extended them in every subsequent case challenging campaign finance limits.

That is the water, the air, the body, the vote, and the election. Five people. Each time, five people. Placed on the court through the same pipeline by the same network with the same financial interests in the outcomes. The Fifth Amendment says no person shall be deprived of life, liberty, or property without due process. The people downstream of unprotected wetlands did not consent to drink what flows through them. The women who developed sepsis in Texas did not consent to the conditions that caused it. The voters whose districts were redrawn the week after federal oversight was removed did not consent to the diminishment of their franchise. The workers whose unions were defunded by Janus in 2018 did not consent to the weakening of their collective power. The families of 500,000 people who died of opioids while Purdue Pharma paid a fine did not consent to the legal architecture that made that outcome the designed result. None of them received a process. All of them are persons the Fifth Amendment was written to protect.

The justices who delivered these outcomes call themselves originalists. They claim to be restoring the founders’ intent. Madison’s documented intent, in his own words, in the document that is the intellectual foundation of the system they claim to honor, was to prevent private interest from capturing public institutions. The judiciary specifically, he wrote in Federalist 51, must be as little dependent as possible on those who appoint them. The permanent tenure of judicial appointments was designed precisely to sever dependence on the appointing authority. What the Federalist Society pipeline produced is the exact inversion of that design: justices whose appointments were coordinated by a private organization funded by parties with direct financial interests in their decisions, deciding cases that deliver outcomes beneficial to those same parties, while using the language of the founders to justify what the founders wrote the Constitution to prevent. That is not originalism. It is the inversion of originalism as a weapon against the intent of the document it claims to honor.

The constitutional provisions that address this directly are specific. Article III grants tenure during good behavior. Clarence Thomas received over $4 million in undisclosed gifts from Harlan Crow, a major Republican donor with interests before the court. The federal recusal statute requires recusal when impartiality might reasonably be questioned. The appointments clause requires genuine advice and consent. If the nomination process was coordinated through an undisclosed private pipeline funded by parties with direct financial interests in the nominees’ future decisions, the appointments themselves are constitutionally infirm. The Guarantee Clause requires the United States to guarantee every state a republican form of government. A court designed through coordinated private money to deliver specific outcomes for specific donors is not republican in any sense Madison would recognize. These arguments have not been formally made before the Supreme Court. They will not be heard there. The court that would hear them is the court whose composition the arguments challenge. That is not a legal accident. It is the design completing itself.

A system that is the sole judge of its own legitimacy is not a justice system. It is a power arrangement dressed in justice’s vocabulary. The argument does not travel through the institutions built to contain it: the six corporations that own 90% of US media, operating under the same legal environment this court created, will not make it. The argument travels the way arguments have always traveled when institutions fail: person to person, outside the channels designed to filter and dilute it. The women who understand what Dobbs cost them. The communities watching their water quality standards disappear. The voters who know what happened the week after federal oversight was lifted. They do not need a law professor to explain what due process means. They are living inside its absence.

Madison wrote that ambition must be made to counteract ambition. He meant the structure would do that work. The structure was captured before most people understood it was happening. What counteracts ambition now is what has always counteracted it when institutions fail: people who know what was done and will not pretend otherwise. The Warren Court was not a legal inevitability. It was the product of political pressure that made a different composition necessary. The current court is the product of fifty years of coordinated private investment in the opposite direction. It can be changed by the same force that built it, applied in the opposite direction, which begins with enough people understanding the documented record of what was taken, who took it, and that the Constitution itself was written to prevent it. This series is that record. Pass it on.