Due process protects all people, not just American citizens | Opinion

Much has been said in the recent news about “due process.” I write out of concern that not much is being explained about it — for example, what it actually is, and why it is important.

The phrase literally means what it says. The Constitution states clearly that “no person shall … be deprived of life, liberty, or property, without due process of law.” By its very language, this statement in the Fifth Amendment requires a process that is “due” not just to every citizen, but to every person, before being deprived of their rights under U.S. law. The Fourteenth Amendment extends due process protections to all state laws as well.

But what does it mean? Some of the basic, constitutional due process rights that apply to civil matters and criminal, are the following:

• The right to an unbiased court or decision maker
• The right to notice of a proposed action and the grounds asserted for it
• The opportunity to present reasons to the court or decision maker as to why the proposed action should not be taken
• The right to present evidence, including the right to call witnesses
• The right to know opposing evidence
• The right to cross-examine adverse witnesses
• A decision based exclusively on the evidence presented
• An opportunity to be represented by an attorney
• The requirement that the court or decision maker prepare a record of the evidence presented
• The requirement that the court or decision maker prepare written findings of fact and reasons for its decision
• The right to appeal

Why is this important? Imagine that you are accused of violating a law. But you either didn’t violate the law, or there are facts important for a decision maker to understand.

In pre-Constitutional colonial America, these rights were not protected. You would have had no guarantee that you would not be taken away by the government to a prison in some far-away place.

“But I didn’t violate the law.”

Never mind; the government will do what it wishes with you.

“But can’t I explain my side of the story?”

No.

“But I have witnesses who know I didn’t do it — they would testify on my behalf.”

That is of no consequence; the government has imprisoned you and that is final. And society at large will never know the truth about you because you were not allowed to speak. For all they know, you are a dangerous criminal that the government needed to shield from the public.

Due process rights are meant to prevent these types of abuses from happening. But even more — due process mandates that an accused be found guilty “beyond a reasonable doubt.” That is the government’s burden, and means there is a presumption of innocence. Due process is meant to protect not only the innocent but also the guilty (who are innocent until proven so).

Due process is undeniably cumbersome for the government — and for good reason. Our Founders set all of this up to protect individual liberties and to prevent the sort of abuses they experienced under colonial rule. What a precious gift due process is.

And every elected official in America, whether they be federal, state or local, swears a solemn oath to uphold or protect the Constitution of the United States, of which the due process clause is pivotal.

As Americans, it is incumbent upon all of us to understand the elevated importance that an individual’s due process rights take over government action. It is also critical that we insist that elected officials who take their oath uphold and protect those rights for every individual.