Due Process: Our Safeguard Against Tyranny

The United States is a liberal democracy, which in political-theory terms means that the majority rules but not over everything. There is nothing inherently liberal about a pure democracy; it means simply that the majority rules.

From that perspective a majority could act just as tyrannically as one person or a small group of people and enact all sorts of invidious policies that can harm a minority or individuals themselves.

The central element of the idea of a liberal democracy is the concept of rights. We find that concept, famously, in the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

That leads us to ask, however, exactly what is an “inalienable right” (the formulation more common today)? To say that a right is inalienable is to maintain that it cannot be taken away from you—but that is obviously not the case. If you commit a crime, the government may certainly take away your liberty by sentencing you to jail—and no sensible person has a problem with that in principle. Consequently, “inalienable” is either a misnomer, or it must mean something else.

As you can guess, the latter is what I want to suggest. Specifically, you can be deprived of your liberty, but you cannot be deprived of your right to liberty. In other words, from this perspective your right to liberty is inalienable even though your liberty itself is not.

Is that a distinction without a difference? How does that make sense? This way: to say that your right to liberty is inalienable is to maintain that you, and the public in general, have the right to demand that government give you a good reason for depriving you of your liberty (whether you accept that reason or not). To deny that government must provide a good reason for taking away your liberty is to permit government to act arbitrarily.

Thus, to say that your right to liberty is inalienable is to say that government must provide a good reason for depriving you of your liberty itself. You may legitimately lose your liberty, but never your right to liberty.

In the American system of government, the guarantor of the inalienability of your right to liberty is the concept of due process of law: that’s what is supposed to guarantee the good reason. It is a concept so fundamental that it appears in the Constitution twice.

The Fifth Amendment, addressed to the federal government, holds: “No person shall . . . be deprived of life, liberty, or property, without due process of law . . . .” And the Fourteenth Amendment, addressed to state governments, holds: “nor shall any State deprive any person of life, liberty, or property, without due process of law . . . .” Note that in each case the reference is to “person” and not “citizen,” a broader class of individuals; all persons, not just citizens, have this right to due process.

(There’s also a distinction between what the courts call substantive due process and procedural due process, but we don’t need to go there.)

The central idea here is that respect for the individual requires that the government must follow certain accepted procedures if it wants to limit or infringe upon rights. This goes to the heart of the question of how good of a reason must the government give if it seeks to do so.

At this individual level due process has to do with the procedures required to respect the rights of an accused person. I leave the details to the lawyers and judges, but such procedures normally include notice of prosecution, the presumption of innocence, an impartial judge and jury, the opportunity to present evidence, and so on.

More broadly, the courts over time have developed what they call levels of scrutiny that determine what counts as a good reason in assessing the constitutionality of laws that impinge upon individual rights.

Under strict scrutiny, the burden of proof is on the government: the government must give a very, very good reason for doing so. It must demonstrate that the law is “necessary to achieve a compelling governmental interest.” Laws affecting freedom of speech and religion normally draw strict scrutiny.

By contrast, under the rational-basis test the government must show simply that the law in question is “reasonably related to a legitimate governmental interest.” For example, driving may be a privilege rather than a right, but government-imposed speed limits easily pass the rational-basis test: they are reasonably related to the legitimate state interest of preventing possible injury or death. Under this test, the burden of proof is on the individual: the government may do X unless the individual makes a good case that it should not.

(A third level of scrutiny is applied sometimes in equal-protection cases: intermediate scrutiny. Here the government must show that the law in question is substantially related to an important state interest.”)

Note the terms in ascending toughness of the tests: “reasonably related,” “substantially related,” and “necessary; and “legitimate governmental interest,” “important governmental interest,” and “compelling governmental interest.” These are the criteria that determine how good and strong of a reason the government must have for impinging upon individual rights.

The opposite of due process broadly conceived and the rule of law itself is arbitrariness, whereby we are subject to the arbitrary whims of a ruler or ruling group. The arbitrary ruler does NOT give a good reason for impinging upon individual rights; he or they simply do it, and justifying a denial of due process even by a vague reference to “the will of the people” does not count as a good reason in our political system.

Due process is thus the wall separating the rule of law and the forces of tyranny. If that wall is breached, then we’re all in trouble.

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