During my tenure as a college professor, I taught graduate and undergraduate classes in Law and Public Policy through what I called a “Constitutional lens.” I was convinced–and remain convinced–that policy decisions unconnected or antagonistic to the country’s underlying legal framework are illegitimate, and that the public affairs students who would become police officers, public managers or legislators needed an education grounded in the Constitution and Bill of Rights.
When we came to the 4th and 5th (and 14th) Amendments, the lessons revolved around the purpose and definition of “due process.” I used to introduce that discussion by drawing two circles on the blackboard (or later, the whiteboard..)–one large circle, which I labeled “the 500 pound gorilla” and a much smaller one labeled “the individual.” As I would proceed to explain, due process guarantees were intended to level, to the extent possible, the mismatch between the power of the 500 pound gorilla (the government), and the resources of far less powerful individual citizens–to require the government to prove its right to deprive a citizen of either liberty or property.
The Fourth Amendment is considered one of the due process Amendments. It requires that the government have probable cause to arrest a citizen. The courts have (until now) defined probable cause as sufficient, reasonable, articulable grounds to believe that a crime has been committed, is being committed, or will be committed, in order to justify an arrest, search, or issuance of a warrant. Hunches or suspicions aren’t sufficient–and until this year, arresting someone solely on the basis of their identity would constitute a clear violation of the Fourth Amendment.
There are three kinds of due process recognized in American jurisprudence: criminal due process, civil due process, and substantive due process. I have written extensively about the current attack on substantive due process, which limits the areas of our lives in which government can properly intervene. When it comes to criminal due process, legal scholars frequently use the phrase “fundamental fairness” to summarize the elements intended to provide an accused person with a fair hearing, including a trial overseen by an impartial judicial officer, the right to an attorney, the right to present evidence and argument orally, the chance to examine all materials relied upon by the prosecution, the right to confront and cross-examine adverse witnesses, and the right to appeal an adverse result.
In my undergraduate classes, I sometimes used a tape from an episode of “Star Trek: Deep Space Nine” (yes, I’m a nerd) to introduce due process. In that episode, Miles O’Brien, the station’s Chief Engineer, is arrested by Cardassians (the series’ aliens) while on a vacation. The Cardassian system is the mirror opposite of ours–O’Brien isn’t told what he was accused of, his lawyer is appointed by the state to “make the case” for his eventual execution (which was scheduled before the trial began), the Judge was also the prosecutor, and so forth. My students would be reliably outraged at the obvious unfairness of that system, and that outrage led to thoughtful and productive discussions about what a truly fair trial would look like and the reasons for the multiple requirements of “due process of law.”
The current, corrupt Supreme Court is allowing the Trump administration to eviscerate those constitutional guarantees. In Noem v. Vasquez, the Court lifted a lower court injunction against patently unconstitutional arrests of people believed to be non-citizens, essentially holding that ‘looking like an immigrant’ can now be considered probable cause for stop, arrest, and detention.
It isn’t just Supreme Court rulings diametrically opposed to years of precedent.
The Prospect, among other sources, has reported that ICE deliberately uses bureaucratic excuses and location transfers to isolate detainees both from their families and from their lawyers. Only 23 percent of defendants in immigration court even have an attorney in court to represent them. (Unlike in criminal courts, defendants in immigration court aren’t entitled to representation.) But those who do have attorneys are struggling to connect with them. The Prospect report documents the impediments ICE has intentionally constructed to keep these detainees in situations the report describes as “punitive and desperate” and to deprive them of due process.
So here we are. We have a Supreme Court untethered to long-standing constitutional guarantees, and a federal agency committed to denying their indiscriminate targets anything resembling fundamental fairness.
We’ve unleashed the 500-pound gorilla. I’m glad I’m no longer teaching….
blacks law define:amended,(from da joint)
Capital punishment:
if you dont have the capital,
you get the punishment.
seems fitting with the present time and admin in DC.
alot of people ive talked with especially in NoDak and many rural area around America. have no clue of basic rights. especially when stopped by a cop.
they talk like they are free game for the game. search your vehicle, sure officer. do you know so and so,yep. sticking ones life in the hands of the system they open the door to be involved. whether involved or not. who teaches these people to accept being shoved and kicked by local/fed authorities? no one. its not taught at a young enough age to avoid being cast into the arms of harm by the judicial code. except maybe by your own peers. no one should wait til advanced education to learn about your rights. ive repeated many times of the ACLUs web site. and most everyone said, whats the ACLU?
ya gotta wonder whos really in charge anymore..ive kept a older ACLU members card that headlines,ACLU on top fully exposed in bold letters when opening my wallet in front of a er, peace officer. as i wrangle my licence for his pleasure. (drive a truck, you will get use to this) his eyes will see this ACLU before i get the thug shot out. and as always, or most of the time, they want to search my vehicle. nope. why you hiding something? nope, im a citizen of the Untied States of America, and i practice my constitutional rights every day. and evry time, they tell me to have a nice day and drive away..driving a truck will get you use to being questioned about most anything at truck inspections, infractions,or just a irritating asshole who doesnt like trucks. just imagine now why no one wants to drive a truck anymore..
Very well stated Professor. Clear and concise, and frighteningly accurate.
What seems to be becoming clear to me is that the whole ball of wax is failing. Mine is the last generation that experienced what passes for the American Way as a functional system (and only because I am a white male; it certainly did not work for people of color, women, Indigenous people, etc), but the subsequent generations have not experienced it that way. The balance between democracy and capitalism is so far out of whack that it teeters on the brink, and I say let it fall off. Time for a new system. But if you think that Democrats would make a change, you will be sorely disappointed. They are the best of the worst option currently available, but that is a very low bar. Why should we settle for something that is so bad that the best that can be said about it is “well, they ain’t t*ump”?
Future Americans deserve better that that.
I understand why universities teach students about due process if they are seeking careers in government or related nonprofits. Still, each individual should research the individual rights outlined in the Constitution on their own time. There are hundreds of videos and websites that spell out our rights, and it only takes a few seconds, but Americans choose ignorance over knowledge. We’d rather pop open a beer and watch a game than spend a few minutes informing ourselves.
I was on a local news and information social media site where locals were arguing against solar farms in our Hoosier county. Most of the people were making typical right-wing points about them not being cheap energy because they are hard to recycle when they’re fully depreciated. This is repeating Faux News. Solar panels have a lifespan of 35-40 years, so I imagine there will be plenty of technological advancements over the years regarding the recycling of solar panels. I asked them if they had bothered to research online or chat with AI, such as Google’s Gemini. I was mocked for recommending the use of the internet. LOL
Ignorance is a choice. Unfortunately, it permeates our society, and even the oligarchy suffers from ignorance. Elon Musk and Peter Thiel come to mind. The leader of our country is a total ignoramus. Pam Bondi and Kristi Noem are hilariously incompetent, and so is Kash Patel. They are responsible for the highest legal authority in this country. Kristi actually compared Antifa to El Salvador’s murderous gang MS-13. She told the press, “They are coming for us!” LOL
If I heard that and didn’t know about Antifa, I would spend a few minutes online just like my 12-year-old daughter does. If I tell her something, she will check me, which is precisely what I want.
There is a great meme circulating that shows three books titled: The Declaration of Independence, The Bill of Rights, and The Constitution, with the headline, “My Antifa Membership Kit Arrived Today.” LOL
This morning, the local headline is “Florida clergy seeking access to detainees.”. It seems our so called “Christian” nation can’t be bothered about the souls of black and brown people. The detainees not only can’t see their lawyers, but they can’t even see their priests.
I was responding to a Facebook friend who seems to think everything is just right, now that Orange Jesus is in charge. In my response I referred to the mother who was on her way to the market to buy meat for the dinner she was making for her family. I said that she’s been here for 30 years and her only “crime” was the misdemeanor she committed when she came here illegally. That got me thinking about statutes of limitation.. Thirty years seems like a long time to hold open a misdemeanor. She would have been better off if she’d just robbed a bank.
I would propose that all of those who have been here for at least ten years, working for a better life for their families should be allowed to apply for citizenship. Aside from Stephen Miller, no one wants to deport those people
If you have ICE on your costume and in your veins, you are the cop, the judge, the jury, and both legal teams. Anyone who doesn’t see that as entirely contrary to the Constitution has never understood the document that defines this country.
Jack, So sorry you have to deal with the kind of stuff that smacks of having to carry Identity papers wherever you travel.
Professor, I have made a point of posting each Amendment as it is being violated by this administration. The only edits I do are capitalizations for emphasis. The 4th in particular is one I share a lot these days.
Todd, European countries are finding new ways to recycle turbine blades, everything from playground materials to bike shelters, park benches and tiny houses..
The deliberate, willful ignorance of the general public is astonishing. Rep. Carson posted a FB request for evidence of constituents’ insurance premium increases. Almost every comment on the post was demanding proof of increases (which he was asking for) or telling him that the ACA was responsible for their increases.
I have read several posting from those urging us to engage with the MAGA, to recognize that the only way to come together is to engage in dialogue, to reach a compromise, that the only way forward to solutions is together. How do we do that when MAGA makes demands, threatens harm or forced compliance, then walks away?
It is almost amusing to suddenly be characterized as a “terrorist” in my 80s. I really must be a scary person to the weaklings in charge. I intend to identify myself as anti-fascist on Oct 18th, No Kings Day. Several of my family members have been anti-fascist, fighting the Axis in WWII. I wear the label proudly.
They really do think we are all frightened, desperate, dumb and cowardly when, in truth, they exhibit all of those characteristic in varying degrees each and every day.
RESIST.
it’s infuriating that trump who is a convicted felon and has rightfully been described as “a continuing crime wave” should be able to deny people in U.S. basic human rights. It was reported that trump offered to sell citizenships for millions of dollars, so now you have to buy your rights and freedom from him if you have enough money.
The billions of dollars poured into homeland security and Ice under the executive branch’s DOJ, gives trump direct control over a militarized police force to do his cruel and unlawful bidding. Masked officers carrying weapons and proceeding in brutish fashion, confident in the orders their given by the trump regime are trampling/injuring and causing misery to many people and families.
It’s unimaginable what conflict/turmoil that’s going on in local/state police departments while being infiltrated by executive branch thugs and national guards. It’s been reported that military doesn’t want to be there.
It’s obvious that the regime is threatened by the number of citizens that resist and publicly protest the corruption that the trump regime is engaging in. If the protests are televised and reported accurately, it’s a real bad look for trump.
Rose, I’ve heard that Kristi Noem is offering local and state police jobs to become ICE agents. It offers higher pay, and they get to be enforcers without rules, while also being able to wear masks but not cameras. If you’re a bigoted cop, what’s not to like?
Additionally, Kash Patel now has a list of 400 people he is investigating for making negative comments after Charlie Kirk’s death. They can’t prosecute pedophiles when they have video evidence, but they can waste taxpayer money harassing people for pointing out the truth about a racist and misogynistic right-wing Israeli asset. #amazing
“Glad you’re no longer teaching?”
But you are, every day. And I’m glad you are.
Todd, I hear the ICE sign on bonus is not given all at once, but over three years. I doubt if all the recruits collect that pay. I agree a lot of the accusations and charges out of DOJ are being used to distract from trump’s and his regime’s corruption, past and present.
“Terrorist!” In the Knesset…calling a spade a spade.
Watch for all the grifting Trump will be working on in the Middle East, now.