At a recent Town Hall in Indiana, Congresswoman Victoria Spartz responded to a citizen’s question/challenge by asserting that “people who break the law aren’t entitled to due process.” Spartz has a long history of ignorance and bizarre behaviors, but this particular example–while undoubtedly endearing her to an unconstitutional administration–reflected her incredible unfitness for public office.
Why is due process an essential component of the rule of law?
David French recently addressed that question in a New York Times essay,
The defense of civil liberties is hard even under the best of circumstances. Thousands of years of human history tell us that we are not naturally inclined to protect the rights of our opponents, much less the rights of people we believe to be violent and dangerous.
That’s why the defense of the Bill of Rights requires both practical and moral arguments. The practical defense is often the most effective: Protect the rights of others that you would like to exercise yourself. After all, one day you might not be in control.
In other words, poison gas is a great weapon until the wind shifts…
French goes on to argue that the best arguments for due process transcend self-interest–that due process guarantees protect “the inherent dignity and worth of every human being.”
Americans have provided due process even to the nation’s wartime enemies. French quoted a federal judge for the travesty that Nazis had been given better treatment under the Alien Enemies Act than people suspected of being members of a Venezuelan gang.
Numerous media outlets have reported on the arrest and rendition of Kilmar Abrego Garcia, who was accused of gang membership and sent to prison in El Salvador. Abrego Garcia was in the U.S. legally, and in 2019 a court had barred the government from deporting him to El Salvador. An official of ICE admitted, under oath, that he’d been deported due to “administrative error,” but claimed the government couldn’t get him back “because he is no longer in U.S. jurisdiction.”
The judge found that “there were no legal grounds whatsoever for his arrest, detention, or removal…. [H]is detention appears wholly lawless” and “a clear constitutional violation.”
If the government can simply assert–without the need to provide even flimsy evidence–that anyone they consider offensive or inconvenient is a “criminal,” then no one is safe.
America’s darker history is instructive: those most aware of the danger posed by lack of due process are the people who remember Jim Crow, when Black Americans in the South received less protection than the Nazis referenced by the judge.
A guest essay in the New York Times made that point graphically.
There’s something about this moment that is shocking to many in my orbit. Watching a security camera video of a graduate student — from Tufts, my alma mater — who is legally in the country being picked up in broad daylight by masked government agents and hustled into an unmarked car. Witnessing people lose their jobs with no warning or justification. The presumption underlying these attacks on diversity, equity and inclusion programs that somehow only white men are qualified to do many jobs. Denying lawyers access to federal buildings so they can’t represent their clients properly. Seeing communities from Cincinnati to El Paso live in a state of fear from the police and bands of vigilantes.
“How can this be happening in America?” these people ask. “This is not the country I know, the country of rights and laws and due process.”
Needless to say, these people are almost all white and liberal and are not used to feeling this fear of arbitrary, brutal state authority. But this moment, the one that was explicitly promised by Project 2025 and Donald Trump when he was a candidate, looks a lot like what my grandmother experienced every day for much of her life.
What Indiana’s civically-illiterate Congresswoman fails to understand is that due process for people accused of criminal activities is a foundational concept in the U.S. Constitution. It is a principle of fundamental fairness–a requirement that government demonstrate an accused’s guilt with probative evidence before imposing punishment.
Adherence to due process for everyone is what makes social progress possible. It is what protects Americans against the would-be autocrats who want to run roughshod over the individual liberties of those who oppose them.
Due Process is mentioned twice in the Constitution — in the Fifth and Fourteenth Amendments, both of which prohibit government officials from depriving an individual of “life, liberty, or property without due process of law.”
Free speech and due process stand in the way of Project 2025. We need to defend them from MAGA’s ignorance and malevolence.
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