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Procedural safeguards, and unbiased laws and judgements

Due process is the legal requirement that the state must respect all legal rights that are owed to a person. Due process balances the power of law of the land and protects the individual person from it. When a government harms a person without following the exact course of the law, this constitutes a due process violation, which offends the rule of law.


Amendment V to the U.S. Constitution
No person shall ... be deprived of life, liberty, or property, without due process of law ...


The Bill of Rights: Due Process of Law, by Jacob G. Hornberger, Freedom Daily, Nov 2004
Describes the origins of due process in the Magna Carta, the basic requirements of "notice" and "hearing", other guarantees (e.g., assistance of counsel, trial by jury of peers), habeas corpus and comments on the current state of affairs
Over the centuries, that phrase—"the law of the land"—gradually evolved into the phrase "due process of law" ... The idea behind the "law of the land" provision in Magna Carta, which has been described as the cornerstone of English liberties, was to require the king to follow certain procedures as a prerequisite to seizing and punishing a person for a crime he had supposedly committed. Thus, over the centuries English and American courts gradually defined "due process of law" as a set of procedural rights or guarantees to which every person whom the government accused of a crime is entitled.
The Bill of Rights: Eminent Domain, by Jacob G. Hornberger, Freedom Daily, Dec 2004
Discusses the eminent domain protections of the Fifth Amendment and how they were undermined by cases such as Berman v. Parker (1954) and Poletown (1981), and the positive outcome of Wayne County v. Hathcock (2004)
Notice that there are two pertinent "takings" clauses in the Fifth Amendment—the due-process clause and the just-compensation clause. The due-process clause empowers government to take a person's property but only after following the principles of due process of law, specifically, notice and hearing. That is, suppose a person is accused of defrauding the federal government. Before the government can punish him through incarceration and fine (i.e., deprive him of liberty and property), it must provide him with notice and hearing, where he is entitled to contest the charges against him.
The Bill of Rights: Reserved Powers, by Jacob G. Hornberger, Freedom Daily, May 2005
Discusses the Tenth Amendment to the U.S. Constitution, the system of federalism and the breakdown that occurred in 1937 when the Supreme Court held that the federal government could regulate economic activity
Ultimately, after the post–Civil War adoption of the Fourteenth Amendment, the Supreme Court held that the Due Process clause of that amendment effectively incorporated the rights and guarantees in the federal Bill of Rights and applied them to the states ... After the Supreme Court adopted the incorporation doctrine ... a person could sue in either state or federal court seeking a declaration that the state's action violated both the state and the federal constitutions ... while the states retain reserved powers ... any exercise of those powers that abridge fundamental rights and liberties is prohibited ...
Blockbuster Victory for the Second Amendment, by James Bovard, Freedom Daily, Aug 1999
Comments on the April 1999 decision by a federal district judge in Texas to consider unconstitutional a 1994 law that decreed that a person under a domestic restraining order could not own firearms
Timothy Joe Emerson, a Texas doctor, was placed under a domestic restraining order last September after his wife claimed he had threatened violence against the man with whom she was having an adulterous affair ... because of a little-known provision in the 1994 Clinton crime bill, Emerson suddenly became classified as a dangerous felon ... Emerson found out ... when federal prosecutors indicted him, seeking a five-year prison sentence because he was still in possession of a handgun. Judge Cummings saw this as a violation of due process, since Emerson was not forewarned about any duty to sell, give away, or surrender his guns.
The Constitution and the Rule of Law, by Jacob G. Hornberger, Aug 1992
Describes, using some of F. A. Hayek's writings, the concepts that individual rights do not stem from the U.S. constitution, that the latter is meant to "straitjacket" the government and the misunderstood (or forgotten) "rule of law"
In a series of judicial decisions in the 1800s and early 1900s, the concept of "substantive due process" came to be an established judicial doctrine. It held that life, liberty, and property were extensions of each other. A person has the fundamental right to sustain and improve his life through labor, engage in any economic enterprise ..., enter into mutually beneficial exchanges with others ("liberty of contract"), and accumulate unlimited amounts of wealth from these endeavors. The courts held that the exercise of these rights were ... beyond the constitutionally granted powers of the government.
The Courts and the New Deal, Part 1, by William L. Anderson, Freedom Daily, Jun 2005
First part of a four-part series examining how Franklin D. Roosevelt and his New Deal affected federal courts and other legal practices; contrasts the thoughts of Blackstone and Bentham
... the Due Process clause, says that government cannot take property from any person, subject anyone to double jeopardy, compel anyone to testify against himself, or deprive anyone 'of life, liberty, or property without due process of law' (emphasis mine). As William F. Shughart II, writes, the key issue of this clause deals with whether or not the concept of 'due process' was 'substantive' or 'procedural.' The former interpretation would require a high burden of proof of a 'public' need for government to act, while the second would be nothing more than a nuisance for public officials ...
Kennedy's Libertarian Revolution: Lawrence's reach, by Randy Barnett, National Review Online, 10 Jul 2003
Comments on the Supreme Court decision in Lawrence v. Texas which deemed sodomy laws to be unconstitutional and in particular on Justice Anthony Kennedy's majority opinion
[B]oth Due Process clauses explicitly mention "liberty." The judicial-conservative response to this is to argue that liberty may properly be restricted so long as "due process" is followed ... This is wrong on two counts. First of all, the "due process of law" includes judicial review. And judicial review includes an examination of whether the government is acting within its delegated powers ... Second, both the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment authorize the protection of unenumerated (and unenumerable) liberty rights "retained by the people."
Kerry Complicit in Bush's Crimes, by Paul Craig Roberts, 19 Sep 2007
Comments on the lack of concern for constitutional rights under George W. Bush, as evidenced by the tasering of a student simply for asking questions about vote fraud during the 2004 presidential election, as well as the infamous "no-fly list"
The U.S. government has 80,000 people, including ordinary American citizens, on its 'no-fly list.' No one knows why they are on the list, and no one on the list can find out how to get off it. ... Nalini Ghuman, a British-born citizen and music professor at Mills College in California, was met on her return from a trip to England by armed guards at the airplane door and escorted away. A Gestapo goon squad tore up her U.S. visa, defaced her British passport, body-searched her, and told her she could leave immediately for England or be sent to a detention center. ... Over one year later there is still no answer.
Related Topics: Rights, Freedom of Speech
New Declaration of Independence, by Vince Miller, Jarret Wollstein, Jan 2000
Prefaced by quoting the second paragraph of the original Declaration, lists—in a manner similar to the original—the outrages of the "modern American State" (referred to as "They") and ending with a list of demands
  • ... They have seized billions of dollars worth of property without due process of law, imprisoned countless thousands without indictment or trial, and have made equal justice under law impossible by manipulating courts and juries, terrorizing our attorneys and seizing their fees.
... To restore the freedom, peace and prosperity of the people, we therefore demand: ...
  • That due process of law and the presumption of innocence be restored. That RICO statutes and other laws enabling the government to confiscate property without the owners being convicted of any crime be abolished ...
"The Police Force Is Watching the People", by Sheldon Richman, The Goal Is Freedom, 22 Aug 2014
Argues that the facts are crucial when identifying "the agressor and victim in particular cases" such as occurred in the fatal shooting of Michael Brown in Ferguson, Missouri, and separately, that the role of police forces must be re-examined
What should happen now in Ferguson and all places where shootings by the police have occurred? In the current context, it is imperative that anytime a police officer shoots someone, a public adversarial proceeding should be held where all the evidence can presented. It could be a full-blown trial or a hearing to determine if a trial is warranted. But objectivity and transparency must be priorities. The public must see that the police officer is being judged without favor. Not even the hint of a proceeding rigged in favor of the police must be permitted.
The Soviet-Style Attack on NORFED, by Jacob G. Hornberger, 21 Nov 2007
Discusses the federal raid on the National Organization for the Repeal of the Federal Reserve and Internal Revenue Code (NORFED) and the differences between a criminal search warrant (used to justify the raid) and an injuction used in civil proceedings
So, did the FBI and Justice Department employ the injunction process to close down the NORFED operation? ... The answer is "No" ... Instead, what the feds did was engage in a sneaky, back-handed ... trick of using a search warrant to accomplish the same thing ..., but without the procedural due-process protections provided by the injunction process ... In a civilized country based on the rule of law, people cannot have their lives, liberty, and property taken away from them without notice, hearing, opportunity to be heard, and other fundamental aspects of procedural due process.
Related Topics: Law, Money
The "Stable Bulwark of Our Liberties", by Sheldon Richman, The Goal Is Freedom, 13 Jun 2008
Reviews the Supreme Court majority opinion in the decision of the Boumediene v. Bush case, holding that Guantanamo Bay detainees can use the privilege of the writ of habeas corpus
In fact, under current law, detainees have none of the usual safeguards accorded people accused of crimes. A detainee is put before a military Combatant Status Review Tribunal to determine if he is an enemy combatant, but he can't appear with a lawyer, examine the evidence against him, or call witnesses. The wire services report that In a number of cases, a second review tribunal was convened after the first panel concluded that an inmate wasn't an enemy combatant. Detainees have a severely limited right of appeal to the courts, but the justices said this was no substitute for a habeas-corpus proceeding.
Was Freeborn John Tortured in Vain?, by Wendy McElroy, 16 Aug 2011
Reviews the history of the right against self-incrimination in England and early America, then describes certain modern attempts to diminish its applicability
Today guarantees such as due process are often portrayed as encumbrances that threaten security or justice by shackling authorities who are hunting the heinous, like terrorists; the conflict is usually expressed as 'liberty versus security.' Although due process can occasionally protect a guilty man, the intended and overwhelming beneficiary is the man in the street who, whether he realizes it or not, is protected against the exercise of arbitrary power. ... The right against self-incrimination lies at the core of American due process. It is historically anchored in the quest for religious freedom, which was instrumental in founding America.


John Gilmore on inflight activism, spam and sarongs, by John Gilmore, Mikael Pawlo, GrepLaw, 18 Aug 2004
Topics discussed include: terrorism, the drug war, encryption, censorship, spam, the end-to-end principle, the right to travel, anonymity, secret FAA/TSA rules, blogs, copy protection, free software and the EFF
# What is this I hear about secret laws in airports?
... My case argues that this is unconstitutional, because it violates "due process of law". A basic principle of due process, which is guaranteed in the constitution, is that you have a chance to read the law (including the regulations that give all the details) before it can be applied to you. Another principle is that the law has to be sufficiently clearly written that you can tell illegal actions from legal ones. A law you can't see doesn't clearly tell you the line between legal and illegal acts.

Cartoons and Comic Strips

I'd Like to Report a Case of Identity Theft, by Ann Telnaes, 9 Jun 2005

The introductory paragraph uses material from the Wikipedia article "Due process" as of 6 Nov 2018, which is released under the Creative Commons Attribution-Share-Alike License 3.0.