Our basic rights go back a long, long way but they are being eroded and that could impact everyone.
I NO LONGER engage in political writing, for a variety of reasons, but as someone bit hard by the history bug as a child I do sometimes dabble in history and try to make light of it in hopes of understanding current events a bit better.
What is on my mind today is that simple but powerful two-word phrase “due process.”
We are hearing it bandied about these days, mostly in the context of its erosion. Given that those two words may be among the most important in our U.S. Constitution, and most central to our freedoms, it might be time to take a hard look at what due process is.
Most Americans are familiar with the phrase “right to trial by a jury of peers” and the Miranda rights, so common on TV crime shows, that give an accused the right to an attorney. Important as a trial and the right of appeal are, they come after arrest. What comes before is equally, maybe more, important to our essential freedoms.
To understand due process, we must go back in time; to 1215 in fact. In 1215 an unpopular English King John was facing down a major uprising caused by his abuse of power, and the general lack of rights held by the common Englishman. In fear of losing his throne and his head. As a result, he signed onto a document known as the Magna Carta (The Great Charter). He kept his throne but alas died a year later dysentery.
That document created the core of what would become the legal system of England, and later the United States. That document allowed two later pieces of legislation in 1628 and 1679, the Petition of Right and the Habeas Corpus Act. Those acts stated that “no free man shall be…imprisoned or dispossessed…except by the lawful judgment of his peers or by the law of the land” and “To no one will we sell, to no one will we deny or delay right or justice.”
“Habeas Corpus” means “show the body.” In other words, it required authorities to bring someone in detention to the court to determine if that detention was lawful.
When the founders of the United States were creating the Constitution, they were well aware of the Magna Carta and subsequent additions to English that dealt with the power of the throne over citizens. Their concerns were expressed in the Constitution they created, and in more than one place. Repetition is emphasis.
Most are familiar with the Fifth Amendment, mainly in the context of “taking the Fifth,” which protects against self-incrimination. The full language contains more than that, however:
“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 offence 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.”
Rights are further defined in the Sixth Amendment:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
Proving the importance of individual rights to the Founders, we find due process again in the 14thAmendment, Section One.
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
But what is “due process?” It is a process encompasses all of the rights expressed in the Constitution when it comes to the government – Federal or State – depriving any person of their rights and/or freedom.
DUE PROCESS BEGINS with an indictment, with specific charges, or an arrest based on observed or known violations of law by police. It defines the process, in short. The accused has the right to know what he or she is being charged with, by whom, what the evidence is. They have the right to counsel and to the speedy trial by a jury of their peers.
This is so important that in 1950 the US Supreme Court wrote “It is now the settled doctrine of this Court that the Due Process Clause embodies a system of rights based on moral principles so deeply imbedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as conceived by our whole history. Due Process is that which comports with the deepest notions of what is fair and right and just.”
How does this tie with current events? Very directly. The current administration has suspended due process for immigrants. It has suspended it regardless of status. There are classes of immigrants, all the way from completely undocumented and present in violation of law up to those who have permanent status.
By rounding up these people, claiming “war” powers that do not exist, the government has deprived them or core rights.
BUT WAIT, THEY are not citizens, right? Right. But that does not matter. There is a tricky phrase in the 14th Amendment: “shall not deny to any person within its jurisdiction the equal protection of the laws.”
Here is what that comes down to. If you or I travel abroad, we fall under the jurisdiction of whatever nation we enter. We must obey its laws and if we do not, or for any reason taken into custody, we are dealt with through its laws. Any rights we have, or do not have, are defined by those laws. It is the same in the United States for those who enter our country, as tourists or as any class of immigrants. They are under our “jurisdiction” when it comes to following laws and the consequences. Due process applies.
That is what that phrase “shall not deny to any person within its jurisdiction the equal protection of the laws” means.
Why should we care, if we are not immigrants? We should care because history also shows us that once erosion of rights begins under a dictator or autocrat, it eventually reaches everyone. We have seen the US Department of Justice become a tool for personal and political revenge. We have seen the FBI compromised. We have seen big law firms back away from defending rights and into supporting the erosion of the rule of law.
All that stands between the average citizen and tyranny is “due process.” It really is that simple, and that critical. Of all the things that are happening today, it is the erosion, of not outright disregard for, due process that is the greatest threat we all face.
Rich Heiland is a retired journalist and semi-retired consultant, trainer and public speaker. During his journalism career he was a reporter, editor, publisher, college instructor, part of a Pulitzer Prize-winning team and a National Newspaper Association Columnist of the Year honoree. He also writes the intodementia.com blog about his family’s experience with dementia. He lives in West Chester, PA and can be reached at [email protected].
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