Why is due process important to individual rights?

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Each of the first ten amendments to the Constitution of the United States, collectively known as the Bill of Rights, has historically been considered essential to the preservation of individual rights. The Fifth Amendment directly addresses the issue of “due process of law,” stating,

No person shall be...deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The importance of the Fifth Amendment to the preservation of individual liberty has been debated continuously since its ratification, with Supreme Court decisions consistently reaffirming its importance. Interpretations, as with each of the ten original amendments, have left some uncertainty regarding the its scope or applicability. Its underlying intent, however, was and remains clear: government cannot arbitrarily deprive an individual of freedom or seize that individual’s property without having first followed specified steps intended to ensure that the individual’s rights have been properly protected. Because of continuing concerns about the preservation of individual rights in this regard, Congress, in the years immediately following the end of the Civil War, and with continued animosity from Southern states regarding the issues of slavery and indentured servitude, passed and worked through ratification of the Fourteenth Amendment, which states,

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. [Emphasis added]

The origins of both these amendments to the Constitution reside in the Magna Carta, one of the most important documents in history for the restraints it placed on executive power—in its case specific to the power of the English monarch King John. No longer would a king or queen, at least in England, enjoy unquestioned power over its subjects, although the practical application of these restraints varied over the subsequent centuries. The Founding Fathers of the newly established United States of America, however, incorporated those restraints in the Constitution they drafted precisely because they were seeking independence from a distant monarch, King George III, but also because they were determined to construct a legal regime that would preclude the emergence in the new nation of governments that enjoyed absolute power over the citizenry.

The Fifth and Fourteenth Amendments’ restraints on government powers are integral to the Constitution’s broader mission of ensuring the establishment and survival of a democratic form of government—one that protected the individual citizen in any dispute between that citizen and the government created to serve them. No citizen can be placed in indefinite detention or have their property seized unless or until a legally established and transparent process has been entertained, during which the individual has been able to defend themselves before an impartial judiciary. The due process clauses of the Constitution are synonymous with the concept of individual rights.

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Due process means that if you are arrested and tried for a crime, certain set procedures have to be followed. These are laid out in the US Constitution and are meant to safeguard your rights. The US Constitution was drafted against the backdrop of arrest and imprisonment abuse in Europe.

The Constitution requires that you not be arrested secretly. Your arrest must be made public. This safeguards you against simply being picked up by the police and "disappearing." You also have to be charged with a crime: the government can't arrest you for no reason—regardless of whether they happen to dislike you or consider you a problem. The people in power also have to have probable cause to think you committed the crime you are charged with. In other words, they can't simply "fish" and arrest you for murder without any evidence that you might have murdered someone.

You are also supposed to be presumed innocent until you are convicted. You have the right to a lawyer and a speedy trial. This last point is important, because it was typical of European regimes to let their enemies languish in prison awaiting trial. You also have rights meant to safeguard you while you are on trial, such as the right to a jury of your peers and a right not to incriminate yourself.

All of these are sensible and just processes meant to prevent the abuse of power. Some argue that in recent years these rights have not been taken away but "hollowed out." For example, most people will accept plea bargains these days, even if they have to confess to crimes they did not commit, rather than take the risk of a jury trial and a very long sentence. Public defenders are provided to people who cannot afford a lawyer, but they are often so overloaded with work that they provide the scantiest of defense to their clients. Even so, the US Constitution provides a model of what a fair justice system looks like.

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In the Constitution of the United States of America, the Fifth Amendment says that no one shall be "deprived of life, liberty or property without due process of law." The Fourteenth Amendment, ratified in 1868, uses the same words in the Due Process Clause to describe a legal obligation of all states.

The Fifth Amendment and the Fourteenth Amendment of the Constitution of the United States both use the phrase "due process." In the Fifth Amendment, each and every citizen of the United States is guaranteed that he/she will not be "deprived of life, liberty, or property" without the proper legal process and without the protection of his/her personal liberties.

The Judicial Protection of Individual Rights in the United States includes the assurance of such protections as the following:

  • habeas corpus (protection against unlawful detention or imprisonment)
  • presumption of innocence
  • impartial tribunal
  • swift and public trial
  • right to counsel
  • right to a trial by jury
  • right against self-incrimination
  • protection against double jeopardy (a person cannot be tried twice for the same crime)
  • right of appeal
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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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