Due Process Essay

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The text of the U.S. Constitution draws deeply on pre-existing legal traditions, and much of its meaning lies below the surface. What, for example, is a bill of attainder? What counts as a warrant, and what is a jury? Questions such as these are vitally important for understanding how our government is supposed to work.

In this month’s Cato Unbound we ask what the Constitution means when it promises us that no one will be “deprived of life, liberty, or property, without due process of law.” This phrase — found in the Fifth Amendment and made binding on the states in the Fourteenth Amendment — is usually understood as a guarantee of an orderly, impartial, and regular trial procedure, and no one doubts that these things are components of “due process of law.”

Our lead essayist, however, would take things further. Timothy Sandefur of the Pacific Legal Foundation asks why we value an orderly, impartial, regular trial procedure in the first place, and he finds that this is but one component, albeit a necessary one, of lawful rule. He makes the case that the due process clause offers us more than just a set of legal rituals. It is also a guarantee of non-arbitrary action by government, a promise that the government will act in the service of the public good, not for mere private interest or arbitrary whim.

This step takes us into some deeply normative territory, full of difficult value judgments and risk of error. We’ve invited three other eminent legal minds to discuss the issue: Lawrence Rosenthal of Chapman University, Gary Lawson of Boston University, and Ryan Williams of the University of Pennsylvania.

 

If we did not have a guarantee of due process in the Constitution, the rights that are specified in the Bill of Rights and elsewhere would be fairly meaningless.  Without due process, it would be too easy for the government to take away our rights even though those rights are specifically guaranteed by the Constitution.

The idea of due process is the idea that the government has to go through a series of legal procedures...

If we did not have a guarantee of due process in the Constitution, the rights that are specified in the Bill of Rights and elsewhere would be fairly meaningless.  Without due process, it would be too easy for the government to take away our rights even though those rights are specifically guaranteed by the Constitution.

The idea of due process is the idea that the government has to go through a series of legal procedures before it can take away our “life, liberty, or property.”  In other words, the government has to act in a legal way, not just in an arbitrary way.  It has to do things like put us on trial and convict us of crimes before it can take away our life (execut us), our liberty (put us in jail), or our property (fine us or confiscate our property).

If the government did not have to follow due process, it could simply take away our rights at any time.  The government could put us in jail without trial for something like speaking out against its policies.  The Bill of Rights could still say that the government couldn’t do things like infringe on our freedom of speech or religion, but the government could do it anyway through arbitrary, extralegal actions.

Thus, the guarantee of due process is a very important factor in ensuring that we actually have individual rights that are promised to us.

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