CREATORS
April 15, 2025
As we slide into the second quarter of 2025, if I were to
predict the word or phrase of the year, it would be "due process."
News stories lament the absence of due process, and talking heads, lawyers,
White House aides, judges and journalists relentlessly examine its history and
relevance. What does due process mean?
Due process, established by the Fifth and Fourteenth
Amendments, guarantee that the government cannot take a person's basic rights
to "life, liberty, or property" without giving advance notice and the
opportunity to challenge the action in front of an impartial arbiter.
The concept of due process developed centuries before the
U.S. Constitution was drafted. Due process is a historical product of the Magna
Carta, through which King John of England promised "that [n]o free man
would be deprived of his life, liberty, or property except by the lawful
judgment of his peers or by the law of the land." The phrase "due
process of law" first appeared in a 1354 version of the Magna Carta,
"No man ... shall be put out of his lands or tenements nor taken, nor
disinherited, nor put to death, without he be brought to answer by due process
of law."
The Founders incorporated due process into the Fifth
Amendment to the U.S. Constitution, "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." At the time, due process only
applied to federal matters.
In the wake of the Civil War, the U.S. House of
Representatives proposed the Fourteenth Amendment. In 1868, the Fourteenth
Amendment was ratified by the states and became part of the U.S. Constitution.
In essence, due process can be encapsulated in a single word
— fairness. Due process impacts all of us, even if we are not facing arbitrary
imprisonment or deportation.
Due process ensures fair treatment when a homeowner contests
property taxes, or a driver fights a traffic ticket, a business seeks a zoning
change, an individual seeks unemployment compensation or a student faces
discipline.
According to Brandon L. Garrett, Kate Evans and Elana Fogel
writing for The Hill, due process is always placed under special stress when
people demand quick results without fairness. For instance, a new President
wanting to show the nation he is cracking down on criminal gangs and illegal
immigrants.
The U.S. government did not provide notice or review before
hurrying hundreds of Venezuelan nationals onto planes bound for a notorious
prison in El Salvador last month. According to The New York Times, White House
aide Stephen Miller has repeatedly asserted that the people deported were not
entitled to due process, even though the U.S. Supreme Court recently said the
opposite.
David French of The New York Times asked, "How do they
know if someone is an 'illegal alien' absent due process?"
French shared, in a recent column, his experience as a
soldier deployed to Iraq during Operation Iraqi Freedom. After six of his
comrades were killed in a booby-trapped house, a captured man was brought to
French and his commanding officer. They determined, after questioning and
examination of the relevant evidence, that he was not an enemy combatant.
He was released. French continued, "As he rolled out,
though, a soldier turned to me and voiced our shared fear. 'It sure would suck
if he actually turned out to be bad and we let him go.'"
"We're not God," French responded. "I can't
look into his heart and know the truth, so we have to go by evidence. The
evidence makes the decision for us. Was there enough evidence to hold
him?"
That is due process. French continued, "(Due process)
doesn't just protect a person's liberty and dignity. It's a humble acknowledgment
of our own limitations."
Matthew T. Mangino is of counsel with Luxenberg, Garbett,
Kelly & George P.C. His book "The Executioner's Toll, 2010" was
released by McFarland Publishing. You can reach him at www.mattmangino.com and
follow him on Twitter @MatthewTMangino.
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