October 26

Due Process for Beginners


So look. You hear “due process” bandied about a lot by lawyers who think you’ll get all bent out of shape because due process is being violated. It’s the story, right? But it’s fake.

There are two kinds of due process: procedural and substantive.

Procedural due process simply means this: you are given notice of the charges against you and you have the right to be heard. So — since there are no charges proffered yet. procedural due process is not yet an issue. Can’t be. No charges, so you can’t be given notice of charges.

When you violate substantive due process, it means you’re doing something fundamentally unfair and infringing on individual rights. Those are rights stated or implied by the Constitution.

The first case in which substantive due process was addressed was in Dred Scott v. Sanford (1856), which held that individuals had the right to own slaves. As you can see, the concept of what individual rights are evolves.

This is for serious shit. Fundamental individual rights. Stuff that would make you scream, “That’s just not fair!”

There are House rules put in place for committee hearings, i.e. the rules the Republicans voted in to expedite the Benghazi hearings. Those are being followed. Following rules voted into place by the Republicans does not even come close to violating Due Process.

Not procedural due process — because there’s no defendant.

And not substantive due process — because there are no fundamental rights being infringed upon and because the committee is following the rules.

It’s that simple. It’s not an issue.

So the next time someone howls that due process is being violated, simply ask, “Procedural or substantive?” If the other party does not have an answer, then they don’t know what they’re talking about.


Constitution, Due process, fundamental fairness, Trump impeachment

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