“Due process isn’t about shielding wrongdoing—it’s about ensuring the government doesn’t wrongfully punish YOU without fair notice and a chance to respond.”
Whether on the news, in a speech, or on a sign, you’ve probably heard the term “due process” at least once in the last several months. Many people are not entirely familiar with the term, which is understandable considering most of us enjoy the protection it provides without ever having to think about it.
Due process exists mostly in the background of our government and legal system, showing up everywhere from medical paperwork to the official policies and procedures of individual government offices and agencies—from the criteria government employees use to make decisions to the way city employees are managed.
For as mundane as it sounds, an individual’s right to due process is explicitly protected by the U.S. Constitution for a practical and necessary reason: without it, U.S. citizens have no protection from threats by their own government.
So, what does due process mean and why does it matter?
What is “Due Process”?
Due process is an individual right guaranteed by the U.S. Constitution’s Fifth and Fourteenth Amendments. The Fifth says, “No person shall… be deprived of life, liberty, or property, without due process of law…” The Fourteenth Amendment guarantees this same individual right concerning interactions with state governments.
In simplest terms, due process means that government entities at all levels—federal, state, county, city, township, or village—are required to play fair and follow existing laws when interacting with an individual. No person can be punished, locked up, or have their property or legal rights taken away without first being given a fair chance to respond.
In the U.S., individuals and businesses alike are expected to follow local, state, and federal laws. The constitutional right to due process requires that the government do the same. That’s it.
What is Protected by Due Process?
That depends. While everyone is guaranteed due process, that doesn’t mean everyone is protected in the same way in every interaction with any level of government. Due process is not a set of defined legal actions applied universally to every individual in any situation.
Rather, it’s the guarantee that in any interaction between an individual and a government entity, the government is required to stick to the laws in place for whatever that interaction is and apply those laws fairly, just as an individual is required to follow local, state, and federal laws in place for that specific matter.
The policies and procedures used by governmental agencies must be in line with applicable laws, and they must be published and made available to the public. These are all the result of due process. It is why a person cannot be denied a driver’s license if they meet all the criteria established and published by the agency, and it is why a veteran cannot be denied health care if they have the proper documentation, and so on.
Who is Protected by Due Process?
Everyone physically in the United States is guaranteed a certain amount of due process. By design, the Constitution does not limit due process protection to only U.S. citizens. It reads, “No person shall be deprived…” With decisions from as far back as 1886, the Supreme Court has confirmed repeatedly that both amendments specifically include U.S. citizens, legal immigrants, tourists, people in the U.S. for school or work, and even people who do not have legal permission to be here.
In 1982, the Supreme Court held that “Undocumented children have equal protection and due process rights when it comes to public education.” U.S. Supreme Court Justice Antonin Scalia authored the majority opinion in a 1993 case saying, “It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings.” Then in 2001, the court wrote, “Even undocumented immigrants in detention are protected by due process rights—indefinite detention without legal justification violates liberty interests.”
Why Does Due Process Matter?
The framers of the Constitution had experienced an unjust government under British rule—oppressive, cruel, and abusive with its power. They didn’t have any voice in their government or laws yet were required to pay taxes, they had property seized without notice or cause, their local governments were dissolved, and they were imprisoned without evidence or trial, all with no legal way to affect the outcome.
Our founders wanted something better, so when building a new governing model they specified that the government was to be for the people and that its purpose was to protect individual rights, not limit them. They believed the most powerful way to protect individual rights was to ensure the government, in all of its forms, must follow the laws established for the matter at hand and apply them fairly.
These concepts are so crucial for a just government, that the framers included mechanisms specifically aimed at protecting individuals from government abuse. Due process is one of those, but freedom of speech, the right to remain silent, and the right to bear arms are other examples that might sound more familiar. These are all purposeful and consequential checks on governmental power.
Due Process Up Close
In the U.S., where due process is threaded into every government activity, it might seem unlikely that anyone is truly vulnerable to a legitimate abuse of power by a government entity.
However, when zooming in on a state, county, or local level, due process is what protects home and small business owners from biased or retaliatory zoning or licensing decisions, unfairly or inconsistently applied directives from a county health department, or a financially motivated seizure of property under the guise of eminent domain.
In one notable Michigan case, “County of Wayne v. Hathcock” (2004), the Michigan Supreme Court ruled that the county could not seize private land to give it to a developer for a business park. The court found this did not meet the state’s constitutional requirement for “public use,” reinforcing that due process prevents local governments from using economic development as a justification to take someone’s property.
Why Is Due Process Guaranteed to People Who Are Not U.S. Citizens?
Due process is a right guaranteed in the U.S. Constitution, so it’s natural to wonder why it is guaranteed to every person in the U.S., regardless of citizenship status.
The answer is simple, specific, and maybe a little ironic. It is to protect U.S. citizens. The framers knew the only way to ensure citizens are protected from abuse by the government is by guaranteeing they will have a fair opportunity to defend their position against a government action. If the government action happens to be related to illegal immigration, the person has to have a chance to argue in their defense—in case they are a U.S. citizen.
If that individual is a U.S. citizen, due process allows them a chance to prove it. If instead, their due process reveals that they are not in the country legally, then due process does nothing to help them avoid accountability for their actions.
Due process isn’t about shielding wrongdoing—it’s about ensuring the government doesn’t wrongfully punish YOU without fair notice and a chance to respond.
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