Due Process

 

            You and I enjoy civil liberties. They provide the foundation of our free and open society. They are so important that we enumerated ten of them in the Bill of Rights, ten specific liberties guaranteed under our constitution, nine of which pertain to personal liberties. Among our constitutional rights is the right to “due process of law,” found in the 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 offense 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.

In short, we live in a country where the powerful state finds itself constrained. Due process ensures that you and I can walk the streets, conduct business, or relax in our homes free from the fear that some government agent will come along and spirit us away into some dark cell to rot away without recourse. At least that is the intent.

Recent actions by our current administration call this into question. Due process separates law enforcement from judicial proceedings. Law enforcement officials are not charged with or equipped to determine guilt or innocence. They gather facts and when appropriate make an arrest. Then the judiciary takes over to determine guilt or innocence. If the person is found guilty then the judiciary sets an appropriate punishment. I know that this all sounds like a high school civics class…which is ironic since my teaching certificate includes all social studies…but we seem to have forgotten the basic structure of our government.

I frequently hear or read people saying, “Well, they are illegal aliens so they have broken the law and should be deported.”

The problem with that statement is that the people in question may or may not be here illegally. These people have been denied their due process. We have courts set up to determine someone’s status and adjudicate the process. We are circumventing our constitutionally mandated system for convenience sake; or perhaps to satiate some sort of desire for vengeance against an amorphous them or as a salve to our fear of some imagined invasion. We must remember that we do not follow our laws out of expediency. We follow them because they are just, protect the weak, and lead to a more civilized society. The protections of our system, while not perfect, are there to keep all of us safe, even the illegal aliens. The Supreme Court has ruled that even illegal aliens enjoy the protection of due process. Due process in some form or fashion applies to all of us. Due process protects us from government overreach.

When we turn away from the violations of due process currently taking place, we diminish our society and culture. History will judge us on how well we protect the weak, not the lethality of our military, manufactory prowess, size of our bank accounts, or the value of the Dow-Jones. Dismissing violations of due process will also eventually lead to personal jeopardy. Already U.S. citizens have been detained and deported without due process. The longer we fail to stand up for what is right, the greater our personal peril. Not much stands between you and me and unlawful incarceration should the administration turn its baleful eye on us. But we should not protest these actions which diminish due process out of fear. We should protest because it is the right thing to do.

Those of us who enjoy the current protections afforded by the structure of our society and our positions within it must speak out for the weaker members of our society and culture. Above all, they need our support in this time of peril. Looking away from their suffering reveals our own culpability and smallness of character. Affording undocumented aliens the protections of due process not only follows law and precedent, it also displays kindness and compassion, both characteristics of a civil society. In their case, due process does not grant them a free pass, it merely ensures that they are protected from an overzealous administrative branch. At the end of the process, should they be ineligible for legal resident status, they may be deported. But we should not circumvent the system just to appease our baser urgings. We are better than that. After all, if through our inaction we show that we do not care, they may come for us.