The Process Of Undoing Due Process

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Article V of the United States Constitution

Do you believe in justice?

Rich liberals, rural Kentucky republicans, radical social justice warriors who believe that the constitution is unfit to provide true equity to the historically oppressed, libertarians, communists, constitutional originalists – all of us, together: Do you believe in justice?

Even if reality often falls short of the ideal, even if the government often operates like a boot to the throat, even if the carceral state is bloated and sanguinary, even if years of hard life experience scream “No, it’s not true, justice doesn’t exist in this country!” – do you think we still have to try to reach for it? That it’s a worthwhile and vital point on the compass, a True North, and if we’re lost in the woods either the compass is broken or we’re reading it wrong?

Even if you’re an existentialist, having come to the conclusion that all of human culture is a series of accidents resulting in what we have now, a ramshackle hut built on the detritus of what came before us: can you concede that justice is one of the better accidents to befall us?

The justice that has whipped me into a rhetorical frenzy isn’t the well-oiled operation of an unrelenting punishment machine, quarantining those found guilty in the Brutalist architecture of displine. This is the justice of Due Process: the right to fair treatment within the legal system that follows established rules, esteeming the right to a speedy trial, the presumption of innocence, and the state’s burden of proof.

On Sunday, the 45th president suggested that Due Process should be circumvented when dealing with so-called “illegal immigrants”. In his vision, there are no courts or judges, just a void that will be filled by nativist vigilanties. Never mind the fifth and fourteenth amendments of the constitution, or that Supreme Court case law has established that even those who enter the country without legal sanction have the right to Due Process. The undocumented are still considered legal persons, and to deprive them of that right depersonalizes them. If one is not a person, but part of an infestation, there is no need to afford them the consideration of their humanity. And what is it we do to vermin?

Justice must be for all if it’s to be for anyone. The system is far from impartial, but to do away with striving towards impartiality, or at least pretending to, jackhammers into the bedrock our imperfect society was built on. Or perhaps it only collapses some of the top-level detritus. However you prefer to think of it, one fact is not up for interpretation: if we allow the constitution to be ignored to persecute one group of people, an inhumane precedent will have been set. What’s to protect anyone else?