B.2(g). Right to Due Process of Law

No Person may be deprived of life, liberty, or property without due process of law, which includes, at a minimum, notice of charges against them, a fair hearing, and a chance to review and answer all testimony and evidence, and sufficient time to respond. It must also include the right to competent legal representation, an unbiased judge, and, if applicable, an impartial jury. Finally, all hearings must be held within a reasonable proximity to the place where the alleged unlawful activity occurred.

This is a significant expansion from the language in the Fifth and Fourteenth Amendments of the Constitution of 1789. [1] Though those clauses are strong and have served us well, they are not explicit about what “due process” means.

The government has exploited the vague definition of due process in these amendments. A glaring example of this is the Japanese Internment and the subsequent case Korematsu v. United States. The court held that general military orders [2] issued under the authority of Executive Order 9066 [3] was enough on its own to justify the detention of Japanese Americans. [4] It’s important to note that in Trump v. Hawaii, rebutting another matter entirely, Chief Justice Roberts asserted, “The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and – to be clear – ‘has no place in law under the Constitution’ 323 U. S., at 248 (Jackson, J., dissenting).”[5]

Similarly, people are held indefinitely in immigration proceedings with limited access to counsel. These detentions are labeled as “civil” detentions to avoid the protections of criminal due process. It’s unclear to me how the courts justify that distinction. Still, this provision lays out the minimum requirements of due process. There is no distinction between criminal, civil, or administrative detention. Any loss of life, liberty, or property requires due process and it must meet the minimum standards listed here.

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[1] Compare to U.S. Const. amend. V, “nor deprived of life, liberty, or property, without due process of law,” and U.S. Const. amend XIV, “nor shall any State deprive any person of life, liberty, or property, without due process of law….”

[2] Civilian Exclusion Order No. 34, Headquarters, Western Defense Command and Fourth Army (May 3, 1942).

[3] Exec. Order No. 9066, 3 C.F.R. 1072 (1942)

[4] Korematsu v. United States, 323 U.S. 214 (1944).

[5] Trump v. Hawaii, 585 U.S.____, No. 17-965, slip op. at 38 (2018).