Since the US Constitution was ratified, the government has reserved the power to infringe upon a person’s rights should it be necessary for the common good. The proverbial sword of justice takes many forms, but its use has almost always been accompanied by the so-called scales of justice, which are the impartial justification for the use of the sword.
Thus, any person who crosses paths with the United States justice system has been guaranteed a right to a free trial. Citizens and non-citizens alike have enjoyed the privilege almost universally.
The Trump administration, however, has deviated from this tradition and recently began deporting suspected undocumented residents en masse. The majority of these cases aren’t seen by a judge, and the deportations are often carried out before the justice system can determine whether a person is in the United States illegally.
In some instances, President Donald Trump’s administration has even carried out deportations against a judge’s orders.
On the whole, a large group of people have faced the sword of justice without a fair adjudication of their case. One must ask, when these scales of justice are not used, what is left of justice, except the sword?
The process that is due
The United States government operates with the idea that all human beings have an inalienable right to life, liberty, and property. LMC political science professor Ryan Hiscocks, explained that the federal government reserves the power to strip people of those rights, but must have good reason to do so.
“If the government is going to come and strip those [rights] from us, including using the death penalty, or locking us up in prison, then we have to have a means to fight back,” said Hiscocks. “There’s a process by which it has to happen. It can’t be arbitrary or immediate.”
The power to limit a citizen’s rights has many requirements, which are designed to help citizens defend themselves against “what is the most powerful institution on Earth,” said Hiscocks.
To this end, before the government can punish anyone for a crime, a process is due to investigate the claims. Evidence connecting a suspect to a crime is needed before an arrest. and before a suspect can be sent to prison, a trial is required to determine their guilt.
This power that the government wields, the proverbial sword of justice, must first be justified by the judgment process, the proverbial scales.
Therefore, the government must do the work to prove that a defendant is guilty before taking action to infringe upon their rights.
This tradition goes back to the birth of American democracy, when this process was guaranteed by the Bill of Rights.
American citizens and non-citizens alike have enjoyed this right to due process, partially because all humans deserve the right to equality under law, but also because citizenship status is not an intrinsic quality that can be immediately determined.
In order for the U.S. government to act on a person’s citizenship status, in theory, the government must prove their lack of citizenship before any deportations, arrests or imprisonments occur.
The purpose of the processes outlined in the constitution was to prevent the government from wielding its awesome power arbitrarily or oppressing its citizens.
Montesquieu, an 18th-century philosopher and one of the leading influences for the writers of the constitution, determined that some roles are too important to be filled by one person, for someday a single person may be compelled by selfish interest to oppress their countrymen, to believe “that he may raise himself to grandeur on the ruins of his country.”
Due process is critical to the separation of these authorities because it locks the powers of state behind a long, deliberate process like a trial or investigation. Any potential path to oppression becomes longer and more difficult.
“What protections [other than due process] against arbitrary mistreatment, discrimination, against the government, do we have,” asked Hiscocks. “Power cannot be allowed to concentrate.”
The main motivation behind creating this system was the fear of unjust government authority.
Say a president comes along who was elected fairly but has become largely unpopular throughout their reign. To cement their power, they accuse a political rival of a heinous crime.
In a system without civil protections, the highest officer of the law in the land — the president — could arrest and punish them with impunity.
Due process, on the other hand, guarantees that an investigation will take place to explore the veracity of the claim. Due process ensures that the political rival has the chance to prove their innocence.
Otherwise, an aspiring tyrant could potentially arrest anyone for a given crime and enforce punishment without proof or proper procedure.
“If you look at [amendments] four, five, six, seven and eight, it’s the criminal justice system in chronological order,” said Hiscocks. “They are absolutely fundamental to us being able to protect what should be an unalienable right to all people.”
Normally, these steps are followed in order before punishment can be administered. The process is as follows.
When a crime is committed, the government begins an investigation into it. A person might be suspected, but the Fourth Amendment protects against unlawful search and seizure, which means that the government cannot search a home or other properties, nor arrest any person without a good reason.
Once the government finds a suspect, the Fifth Amendment guarantees the right to a process of finding guilt by the government. Put simply, the government must prove that a crime was committed and that a person committed it before punishment is authorized.
Once the process to find a person guilty of a crime begins, they must then be put on trial.
The Sixth Amendment guarantees the right to a trial in which an accused party can defend themselves via evidence or witnesses before an impartial jury.
Should a defendant be found guilty, the Eighth Amendment prohibits the use of cruel or unusual punishment after a person is convicted.
The warnings of the past
Throughout history, it has been made clear that without due process, a government that exists to serve its people crumbles into something else entirely. Dictators like Adolf Hitler and Joseph Stalin rapidly rose to power in no small part due to the destruction of due process.
LMC history professor Jennifer Smith, said that the removal of due process is “one of the things that authoritarian governments tend to do quickly,” adding it was an easy way for dictators to remove those who stood against them.
For Hitler, it all started with the Reichstag fire, an arson attack on the Reichstag building, the center of the German parliament in Berlin. The Nazis accused a group of Communists for the fire and within hours, dozens were tossed in jail.
The next day, President Paul von Hindenburg issued the Reichstag Fire Decree, which removed people’s individual rights and due process of law. This decree left the people powerless to stop what came after.
The Enabling Act of 1933 allowed the Reich government to make laws without the input of Germany’s parliament. The reason this act was allowed to pass was due to the use of intimidation and persecution by Hitler and the Nazi party against the people who opposed them.
They successfully prevented 81 Communist and 26 Social Democrat members of parliament from taking part in the voting processes, detaining them in Nazi-controlled camps. This was possible because they had been stripped of their due process less than a month earlier.
Smith detailed how the removal of due process in Nazi Germany happened. “He passed laws that kept putting more and more legal restrictions on the ‘other’ so it didn’t seem like you were taking away due process, it’s just that those laws kept getting passed to make Jews the ‘other’,” she said. “They were making it legal to deprive them of due process, he did it in a much more of a covert way.”
This isn’t an isolated event. Getting rid of due process is a catalyst for any dictator’s rise to power. Take Stalin, for example, he led a vicious political campaign against his rivals that began with Soviet Union leader Vladimir Lenin’s death.
After Lenin died, Stalin was able to rise to power, although he believed anyone who had connections with the former leader or the Bolshevik party had to go.
This culminated in the assassination of Sergei Kirov, a prominent Russian and Soviet politician, and while the circumstances behind his assassination are argued to this day, it’s clear that Stalin was able to use his death to strip people of any civil liberties they may have had. Those who participated in the Russian Revolution of 1917 were imprisoned or killed. The death of Kirov also gave way to the Moscow trials.
The highly publicized trials were used to eliminate Stalin’s political rivals and critics. All evidence for the cases were either from preliminary examinations of the defendants or from the confessions that came from intimidation or torture.
While the Great Purge started with the Bolshevik party, the purge expanded to anyone and everyone who lived in the Soviet Union.
It’s clear to see that once a chain of events like this unfolds, many who think they’re safe eventually become persecuted themselves, and in the current day, it’s important to keep that in mind.
The present peril
“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”
Each President of the United States of America takes this very oath on Inauguration Day before accepting the duties of office.
Yet over the weekend, NBC News released an hour-long “Meet the Press” interview with President Donald Trump who, when asked if he needs to uphold the Constitution and whether citizens and non-citizens deserve due process, said “I don’t know” to both questions.
When the person meant to lead the nation chooses not to follow the fundamental principles and laws that he swore to defend, it can lead many to speculate whether President Trump is repeating the cycle of one person usurping power for himself.
The president of the United States claiming that he doesn’t know who due process applies to it causes concern not only to non-citizens but to everyone in the U.S.
The Due Process clause under the Fifth Amendment states “No person shall…be deprived of life, liberty, or property, without due process of law.”
Trump expressed a desire to bypass the Constitution. In the same NBC interview, he explained grievances with due process and complained that the sheer number of trials that would have to be held would take too long. “I was elected to get them the hell out of here and the courts are holding me from doing that,” he said.
This conflict with the courts shows his frustration with how the government has relied on due process to conduct deportations.
Throughout history, it has been proven that the removal of due process has been instrumental in the rise of authoritarianism. Government officials begin by persecuting one group of people, labeling them “the other”, and stripping them of their rights. But it doesn’t stop there. They continue the crackdown, moving on to anyone who opposes them until no one has the power to stop them.
“If the people most in need of protection are not protected,” said political science professor Ryan Hiscocks, “then I wonder if anybody is.”
It is a tale as old as time and while the United States is not currently at the level of extremes of Nazi Germany or the former Soviet Union, the U.S is following some of the initial patterns that led to those authoritarian governments.
“I still have faith that we have not eradicated due process. I take hope that justices around the country are rising up and saying, ‘no, we will not be deporting U.S. citizens without due process’.” said history professor Jennifer Smith.
Although there are currently cases where non-citizens are not given due process. Smith said she has faith in the people of this country pushing back against the removal of due process.
In March, the federal government deported Kilmer Abrego Garcia, a father of three who has lived in the United States for more than 13 years, despite the fact that there was a court order allowing Abrego Garcia to remain in the U.S.
He had legal permission to stay in the U.S and while U.S. Immigration and Customs Enforcement called it an administrative error and the Supreme Court ruled he should be returned to the United States, he is still in an El Salvador prison.
Regardless of new details surrounding Abrego Garcia’s case, it is clear that he was given the due process that everyone in the United States is entitled to.
While many would argue that this case isn’t anything special and don’t care because Abrego Garcia is not a U.S. citizen, his deportation has shown how due process can be stripped from those it was designed to protect.
