Due Process
Due Process
The Fifth Amendment of the United States constitution states: “No person shall be deprived of life, liberty, or property, without due process of law.” This condition derives from the Magna Carta, clause 39, of 1354. Due process of law requires, at a minimum, notice of alleged offence, a proper hearing, and a neutral judge. It is tantamount to the insistence that punishment must be applied only when the law of the land has been properly consulted and a legal procedure has been completed. It is thus decreed to be unlawful not to undertake and finalize a procedure of due process in cases of potential punishment. This is evidently a basic foundation of a civil (and civilized) society and must not be breached by those with punishment power. Without it, society descends into injustice, chaos, and barbarity. We should all stand behind this vital principle. It is ethically correct and legally binding. Those who violate it should be held accountable and punished accordingly: that is, they too may be deprived of life, liberty, or property. If an official deprives a person of life, liberty, or property, they may themselves be legally deprived of life, liberty, or property, if due process has not been observed. In an extreme case, if you deprive a person of life without due process, that may be considered a case of murder. Summary execution of a person without due process is liable to capital punishment, or some other serious form of punishment. To kill without legal justification is a capital crime. The law requires due process, so the law can step in if infringed in this respect. On the other hand, if due process is properly applied, there is no legal liability for the prosecutor. All this is clear and indisputable. It is long enshrined and justifiably enforced. Violation of due process is deemed a criminal act—and it is easy to see why this is so. It prevents unjust harm to innocent individuals. All civilized people adhere to it.
Or do they? Recently we have seen a number of instances of due process violations, carried out by the American government, leading to deportation and imprisonment. According to the US constitution, these are criminal acts (“No person shall” etc.). Of course, those alleged to have committed these crimes must be afforded due process: they must be allowed to defend themselves in a court of law properly constituted. We don’t want to punish people for violating other people’s due process rights without according them due process. If they are found guilty, they should receive appropriate punishment—some sort of deprivation. If they deported or exiled someone without due process, that person being innocent of the alleged crime, it would appear reasonable to apply the same kind of punishment. It might well be decided that we don’t want violators of due process laws living among us, where they might repeat their crimes—thus they might be deported and exiled. Or we could imprison them and fine them. That is a matter of detail and general policy. But suppose that we did institute deportation laws against people who wrongfully deport others by ignoring their due process rights. Then we would be deporting government officials who illegally deported others. Suppose an official knowingly deported a suspected criminal to a prison in which he would likely be murdered, and he did this in clear violation of the accused’s due process rights—arresting him in the middle of the night and forcing him onto a plane destined for said prison. The prisoner is duly murdered, as the official knew would happen. One might think that such an action should receive severe punishment, perhaps punishment in kind. The official is tried in a court of law respecting full due process rights and found guilty. Surely, he must be held accountable for his actions. By this standard, government officials engaged in illegal deportations should be treated as criminals: they have broken the law, as enshrined in the US constitution. A court of law may accordingly find them criminally liable.
I imagine the above reasoning will appeal to many left-leaning people. But these people may not be prepared for a corollary of that reasoning, namely that it applies equally to what has come to be called cancelling. In cancelling, persons are deprived of liberty and property without due process of law (not life, though suicide may result from cancellation). They lose jobs, income, access to opportunities, social status, a happy life. They may become exiled within their society, or feel driven to go elsewhere. The punishments are substantial, and they are intended to be. They are treated as criminals, in effect. But there was no due process. There was no formal hearing, no opportunity to reply to accusations in a legal setting, no impartial judge or jury. The punishment was applied based on factors that would not stand up in a court of law (gossip, progressive politics, prejudice, malice). This is rule by extrajudicial means, and notoriously fallible. Anyone guilty of inflicting harm on a person whose due process rights have been violated is himself guilty of a crime—that is, of an act of injustice. A professional body, say, that deprives a person of normal professional opportunities without any attempt at due process is guilty of due process violation. In effect, it is criminal. The same is true of individuals that actively thwart the normal freedoms of accused people, e.g., the freedom to go to a conference or be considered for a job on their professional merits. Due process is essential to all punitive measures; you can’t proceed without it. If for any reason it cannot be carried out, no one is entitled to assume guilt: if you have not been found guilty of a crime by a judicial process, you cannot be deemed guilty. That is our system, and it is a very good system. But cancelling is rampant in our culture today, which means that violations of due process rights are rampant. The proper conclusion, then, is that the perpetrators of these illegal acts should be held accountable and duly punished. Particularly egregious instances should be punished severely: we might want to consider deportation, prison time, or heavy fines. This implies that large numbers of professors in universities are guilty of a crime, i.e., harming others without due process. In my own subject, philosophy, there are numerous individuals who are guilty of the crime in question: deportation would seem a reasonable option (or am I being too harsh?). Systematic organized efforts to destroy a person’s career, without even a hint of due process, should be treated severely: they violate basic principles of law and morality. I can think of dozens of people who, in a perfect world, should be exiled from polite society for committing the crime in question. But I would not endorse this punishment without due process: punishment for violations of due process should not violate due process. I would insist on this provision in an individual case: you won’t be found guilty of it unless a court of law (or some equivalent) has duly carried out the appropriate procedures. I would recommend firing anybody thus found guilty—it is a serious violation of the law. As things stand, I would say that most of the professors of philosophy in the United States are criminals. They deserve what they have inflicted on others, just as government officials who deport immigrants in violation of due process laws deserve legally sanctioned consequences. Violations of due process are violations of due process, no matter who carries them out. We cannot treat people as guilty unless they have been found guilty.[1]
[1] This is not the same as thinking they are guilty, or even being certain of it; they must be declared guilty by a properly appointed judicial body. It is really quite amazing that so many people are ready to abandon this basic principle of justice when it suits them to do so. We should insist on it especially in cases in which we are convinced that the accused party is guilty (compare free speech).
