Saturday, July 24, 2010

The Real Due Process.

"The Fourteenth Amendment, in declaring that no State 'shall 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,' undoubtedly intended . . . that equal protection and security should be given to all [and] they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts...."

- U.S. Supreme Court Justice Steven Field, Barbier v. Connolly, 113 U.S. 27, 35 (1885)

Due Process is a term that is difficult to define. Many courts have tried to define it, to create tests to measure it, and show equality in it.

But, if you look at it, and think about it, Due Process is a rather simple concept.

The base version of Due Process is that it has a beginning, a middle, and an end.

All three parts are equally important. Without any of those three elements, there would be a violation of Due Process.

This leads us to the question of:

"Where is the beginning of Due Process?"

When this country was created, it was done so with the understanding that the government drew it's power from the permissions of it's citizens.

As the source of the sovereignty, we have a right to have our legislation passed in accordance to the social contract created with the Constitution.

Every time that a law is passed outside of the original construction methods that the Constitution lays out, our Due Process rights are being violated.

The Legislative Branch does in fact have the ability to suspend our rights for a time. That leads us to an understanding of the two types of Due Process.

Procedural Due Process

"Procedurally, due process prescribes the manner in which the government may deprive persons of their life, liberty, or property. In short, the procedural guarantees of due process entitle litigants to fair process." Excerpt from

To take that quote and to think about it leads one to understand that our Procedural Due Process rights guarantee us that our rights will only be suspended by certain methods.

Procedural Due Process is the method by which the government can suspend our rights for a time.

Substantive Due Process

"Substantively, the Due Process Clauses of the Fifth and Fourteenth Amendments protect persons from legislation infringing on certain individual rights. Such individual rights may be expressly enumerated in a constitutional provision, as are the liberties that are enumerated in the Bill of Rights and have been incorporated into the Due Process Clause of the Fourteenth Amendment."

These unenumerated rights have been derived from Supreme Court precedent, common law, history, and moral philosophy. Such rights, the Court said, "represent the very essence of ordered liberty" and embody "principles of justice so rooted in the traditions and conscience of our people as to be ranked fundamental" (Palko v. Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288 [1937])" Excerpt from

Substantive Due Process is the safeguards against encroachment of our rights by the government.

Now we can explore the idea of:

"Where is the 'middle' in Due Process?"

The "middle" in Due Process is the breaking of a law, and the beginning of the Court process.

This is the portion that most people try to define when talking about Due Process.

Here is where people mix up the idea of "Due Process OF law" vs. "Due Process IN law."

"Due Process OF law" is the entirety of Law.

"Due Process IN law" is merely in the Court Room.

And lastly:

"Where is the 'end' in Due Process?"

The 'end' in Due Process is exactly that, the end of a courts sentence on a person.

The finality of a sentence. The completion.

Without that end in a sentence, not only is our Due Process rights violated, but we are put into a form of Involuntary Servitude.

To recap, Due Process has a beginning, a middle, and an end. It is very limited in it's allowance of suspension of rights, and exponential in it's protection of rights.

A simple concept to understand, but a hard one to put into practice.

Until you know where the boundaries are...


Anonymous said...

It is very nice to see you write this article.

You are so right in that it is a simple concept, in fact the simplest in my opinion, BUTT................ It seems as though much more has to be argued, proven, and understood IE. INVOLUNTARY SERVITUDE, THE BILL OF ATTAINDER etc. before we get to the simplest of them all. This is why this intrigues me so much. It seems as though there should be a shorter road to get there, I just can't find it. Always enjoy what you write.

Anonymous said...

It has come to my attention again that our country was founded on a solid foundation of beliefs that has held our country together for such a very long time and recent law makers have disregarded our basic beliefs and laws of the constitution that we hold dear or is it my disillusion that this has only been a recent discovery. Perhaps our rights have been chipped away for such a long time that we have lost so much already that it will be hard to get it back again.

There are too many deep pockets in our government that are affecting our laws. Did I forget political agenda? Yes, judges after all have to be elected and political seats are held only through popular vote. It has been very unpopular to defend our constitution behind the skirts of public safety against the boogy man of our time..."the sex offender". Lock him up! But lets all remind ourselves that this "boogy man" has been labeled by society before the gavel has been struck down, we are not innocent until proven guilty, we have to find deep pockets to get a decent defense for a crime you are accused of, and beware if you cant pay for your lawyer. Who will be next in a miscarriage of justice? The road to our basic rights to be realized again lies in the next official we elect. Someday soon I hope our constitutional rights become popular again. A new "old" concept of our basic universal truth that all men/women want that right to life, liberty, the persuit of happiness.

Thank you, I have a little hope for our future knowing that people are still trying to fight a good fight

Anonymous said...

Your idea simply excellent