What is ‘due process’, and why is it so important?
It’s for all, or it’s for none
‘Due process’ of law is a legal principle ensuring fairness and justice in legal proceedings. In the United States, it is found in the Fifth and Sixth Amendments to the Constitution. It is also tangentially referred to in the Fourth Amendment, which prohibits unreasonable search and seizure. The text of these four Amendments is as follows:
Fourth Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Fifth Amendment
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Sixth Amendment
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Anyone wondering why this subject is important has only to follow the news of the Trump administration’s current mass deportation operations. Thousands of undocumented immigrants, some who are legal permanent residents, and a few U.S. citizens, have been snatched off the street, from their cars and homes, and from their places of work, and spirited away to remote detention centers, and in some cases, deported to foreign countries—in all too many instances where they’re not from, don’t speak the language, and are subject to harsh and inhumane treatment. Administration officials and their supporters claim that undocumented aliens are not entitled to due process. While most legal scholars, and even someone who is not a legal scholar, such as yours truly, think that this position is a total pile of crap, even if it were true, the way the Trump administration is carrying out these operations raises a fundamental question: if ICE, in detaining and deporting people, believe they don’t have to grant due process, but it’s been shown that they are arresting people who are not, in fact, undocumented aliens, how are those who are ‘mistakenly’ swept up in this massive and chaotic dragnet going to prove their status if they’re not granted due process?
Another issue that troubles me is the claim that aliens do not have full access to all of the constitutional rights afforded to citizens seems to be based on a misreading of the word ‘person’ in the Constitution. 1 U.S. Code 8 defines the words ‘person’, ‘human being’, ‘child’, and individual ' as every infant member of the species homo sapiens who is born alive at any stage of development. While this law refers specifically to infants, it strains credulity to assume that when an individual attains adulthood, they lose personhood. If we extend due process only to ‘citizens’, are we then saying that the immigrant who has been legally admitted and granted legal permanent residence (LPR) is not entitled, that they are not secure in their homes and persons, and can be deprived of liberty or sent into exile at the whim of the executive branch, or state government? Unfortunately, there are many on the right who would answer yes to that question.
If the framers of the Constitution intended that these four Amendments were to apply only to citizens, one wonders why they did not say so. The word ‘citizen appears in the Constitution twenty-four times, primarily in reference to representation and voting rights. In Article I, Section 2 of the Constitution, which mandated a national census for apportionment of the seats in the House of Representatives among the states, the requirement is for an ’actual Enumeration’, or actual count of people. The U.S. census has counted all residents of the United States, including noncitizens, since 1790, and the use of the total population for census count was reaffirmed by the U.S. Supreme Court in the 1964 Wesberry v. Sanders, 376 U.S. 1 decision.
Allowing changes to constitutional precedence by executive branch fiat opens a Pandora’s box of unpleasant possibilities. If the president can, with the stroke of a pen or a social media post, change the meaning of the Constitution as it relates to immigrants, what then stops that from being done for political rivals, religious, language, or ethnic minorities? This is how democracy dies—not in a blaze of gunfire during a military coup d’état, but quietly, with one executive action or violation of law and protocol after another, until, one day, we wake up and find ourselves living in George Orwell’s Nineteen Eighty-four, with Big Brother and the Thought Police governing every aspect of our lives.
When we begin to invalidate the constitutional rights, such as due process, for some, we set the stage for others to be deprived. The damage can be done in an instant, but if we allow it, it will take a long time to undo.