Democracy’s Defense: How Due Process Protects Democratic Governance

Virtually everyone has heard the term due process before, but how often has anyone stopped and thought seriously about what it means? Due process has recently emerged as a prominent feature within discussions of current political events. Its ubiquitous use in the current political landscape suggests that due process must be important to democracy and to democratic governance. But what exactly is meant by due process, and why is it so vital? Contemporary usage most often refers to what has been termed procedural due process. This refers to the legal rights afforded to suspected criminals, rights like trial by a jury of peers, freedom from unreasonable searches and seizures, and a fair and speedy trial. There also exists another form of due process, termed substantive due process. This refers to broader rights that extend beyond the scope of criminal procedural rights. This article will focus solely on procedural due process; and its role as an essential democratic safeguard. 

Procedural due process is fundamentally and irrevocably intertwined with democracy. It safeguards those involved in criminal proceedings, ensuring that a state cannot arbitrarily suppress political activity or arrest political opponents in an attempt to manipulate an election. If these protections are circumvented or curtailed, fully functional democracy becomes untenable. The existence of the rule of law, therefore, is a necessary condition for democratic governance. If due process is denied to politically prominent or active individuals, they may be prevented from voting or from running for public office. Should this occur, democracy suffers. Thus, it becomes clear: due process holds a government accountable to its people and creates the necessary environment under which a democracy may flourish.

Commentators and scholars alike have raised questions about the consistent application of due process, particularly regarding certain actions undertaken by the current Trump administration. Immigration and Customs Enforcement (ICE) agents have previously detained people without a judicial warrant, as well as  deported individuals while offering little opportunity to contest their removal. Reports have also emerged that some of the detained have been unable to consult an attorney. The latter is of utmost importance, since the right to legal counsel during custodial interrogation and detention has been explicitly upheld by the courts. In Miranda v. Arizona, the Supreme Court delineated the rights afforded to the recently accused – these include the right to an attorney, the right to remain silent during interrogation, and a verbal warning that anything spoken can and will be used as evidence during trial. The current administration’s circumvention of procedural due process sets a worrying precedent for the future of criminal justice in America. However, precedent allowing for suspension of due process unfortunately already exists in the United States.

            Rarely does the U.S. diverge from such fundamental protections, at least on a national scale. Some examples do exist, however. Immediately following the September 11th, 2001, attacks, Congress enacted the Patriot Act. Among the Act’s provisions were clauses establishing expanded surveillance measures and the ability of federal law enforcement to search individuals’ belongings on suspicion of terrorist involvement. Many legal scholars have contended that the authorization of these practices conflicts directly with the Fourth Amendment’s protections from unreasonable search and seizure. Although on its face, terrorist involvement appears a compelling reason for law enforcement to search an individual, this kind of search depends on nothing more than suspicion on behalf of the law enforcement agency and requires no judicial oversight. Previously, it was required for law enforcement to secure a judicial warrant before search and seizure, regardless of the severity of suspected criminal activity. If citizens are liable to such invasive searches on the grounds of suspicion, rather than through proper investigation and oversight by a judge, governmental accountability is severely limited. If accountability suffers, so does the rule of law, and therefore so does democracy.

             During the Second World War, the United States also curtailed the regular usage of due process in creating military exclusion zones on the Pacific Coast. This resulted in the detention of Japanese Americans, many of whom were American citizens, in internment camps. In Korematsu v. United States, the Supreme Court held internment camps to be constitutional, on the grounds that they were needed by military emergency. Justice Murphy questioned what exactly that emergency was in his now-famous dissent, stating that the exclusion orders authorizing the detainment camps were clear violations of constitutional protections; Japanese Americans were removed on suspicion of Japanese military involvement and were then detained without due process. Over 120 thousand people were not only detained but also relocated to several different states. Here too government accountability faltered, and here too democracy suffered as a result. This example provides perhaps the most direct parallel to some of the actions of the current administration. It seems that most often, wartime justifies the curtailment of due process protections. The President has invoked an act previously thought to be reserved for foreign military individuals on domestic gang members, and ICE has on occasion placed people in detention centers without affording them proper procedural protections. Such protections are crucial to ensuring those suspected of crimes are indeed guilty and that those verdicts arrive in the proper manner and within a reasonable timeframe. If due process is lost for any individual, it means a potential loss for all individuals. American institutions should be wary of any attempts to circumvent such ingrained criminal protections. Even if those attempts are made in good faith, due process exists precisely to guard the people from an unchecked government. Any administration willing to circumvent these protections runs that risk and, in turn, risks damaging democratic governance. 

          Due process exists as the cornerstone of democratic governance; indeed, the founding ideal of the United States was equal justice under law, as inscribed onto the west pediment of the Supreme Court. It serves as a reminder that true legal equality is found when even the accused must be afforded their prescribed rights; equal justice cannot exist without equal protection. If democracy is to thrive, it must rest upon that sentiment. Without legal equality, how can individuals truly call themselves equals? Due process ensures equality under the law for those accused, and it holds accountable those in positions of power. If due process is lost, so too is governmental accountability, and democracy itself is woefully endangered.

DomesticSamuel BurnettComment