2 weeks Ago
The process used to achieve a desired result or goal often determines the success or failure of the effort. For example, most scientific/technological breakthroughs are based upon the process of the scientific method: hypothesis, observation and testing to verify or falsify the hypothesis, then building upon those results with more scientific process to advance scientific achievements. When spending precious tax dollars for public purposes, if you want to minimize fraud and abuse and maximize low cost, transparency and public confidence, you engage in the process of open and competitive bidding.
It’s the same with the goal of justice; if you want to maximize the chance of achieving the goal of justice when government tries to punish an individual, then afford that individual due process. Due process guarantees legal procedures, rules and norms, to protect individual liberty. They are essential for “fundamental fairness” (another common term for due process).
They apply to all actions — civil and criminal — that potentially harms a citizen. As Chief Justice Felix Frankfurter said: “The history of American freedom is, in no small measure, the history of procedure.” Due process is considered so important that it’s guarantee is found in both our Constitution’s Fifth and Fourteenth amendments.
It guarantees that the government cannot take a person’s basic rights to “life, liberty, or property, without due process of law.” As such, due process rights are designed to protect citizens from punitive government actions. This notion and words “due process” traces back centuries to England’s Magna Carta — a document designed to limit the king’s (formerly absolute) power to rule arbitrarily and capriciously, thus rendering him not above the law in his punitive actions.
At a minimum, due process means a person’s property, liberty or life cannot be taken by another without: the accuser first providing notice of their justification — factual and legal — for their action; the accused having the right to a hearing before a judge where they can confront and challenge the action against them as factually and/or legally lacking, and present evidence on their own behalf. In more serious proceedings, additional rights arise such as a right to an attorney. So the extent of due process rights often depends upon the type and seriousness of the government action.
Due process is not only a matter of process, but it’s also substantive: e.g., prohibiting laws that are too arbitrary, vague, broad or unfair.
The phrase due process is currently part of the national conversation as the administration is moving rapidly to radically change not only our government but, evidently, the entire world order. In that frenzied process, many individuals and businesses face enormous harm. Unfortunately, it seems many voters who agree with current policy goals downplay the need for or importance of due process.
I argue that is a serious mistake, because the next election might empower Democrats to ignore or minimize due process protections to Republican goals, interests and individuals. As Thomas More — in Bolt’s play “A Man For All Seasons” — lectured his hyper ambitious clerk, William Roper, about whether to afford even the devil protection of the law, the argument went: William Roper: “So, now you give the Devil the benefit of law!” Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the devil?” William Roper: “Yes, I’d cut down every law in England to do that!” Sir Thomas More: “Oh? And when the last law was down, and the devil turned ‘round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast. .
.. And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the devil benefit of law, for my own safety’s sake!” A simple example of the need for due process can be found in the common wild west theme of the lonely sheriff standing at the door to the jail, shotgun in hand, holding off the angry lynch mob intent on storming the jail and hanging the prisoner.
Although the prisoner is probably vile, guilty and an excellent candidate for hanging, the sheriff is committed to due process. “He’s getting his trial, and anyone trying to take him from my custody to hang him, has to go through me and my shotgun.” While the current administration seems to be inflaming the angry mob, this is not to say ignoring process guardrails is unique to this administration.
In the eyes of many, Democratic President Franklin Roosevelt dishonored the law when he forced Americans of Japanese descent into internment camps during World War II. Decades later, Republican President Ronald Reagan officially apologized for that internment and offered damage payments as partial compensation. President Barack Obama greatly weakened due process protections in 2011 when directing how college hearings should henceforth deal with sexual harassment complaints.
He lowered the standard of proof to “preponderance of evidence,” discouraged live hearings and cross-examination, and had the main investigator of complaints also be the judge determining guilt or innocence. And President Joe Biden financially hurt all taxpayers when he forgave college loans without legal authority. Not cherishing due process rights for the treasure they are is not limited to just one political party.
But the question today remains, as always, not necessarily how horrendous some targeted person may be, but how good and just our nation is..
