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Due Process

7 min read

Part of Crime, police and punishment.

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Every episode (4)

Who argued it

Mike Greenberg · Bill Maurer · Richard Epstein · Mike Riggs

Civil Asset Forfeiture · Property Rights · Fourth Amendment · Policing for Profit · Administrative State · Title IX

Background

Civil forfeiture and the burden of proof

In the episode on civil asset forfeiture, Bob Zadek frames the issue as a straightforward violation: police in states and municipalities are authorized by statute to take property without due process of law, and the burden falls on the owner to prove entitlement to what was taken. He calls civil forfeiture statutes pervasive, saying such power is embellished in statutes in about 47 of the 50 states and in the federal government, and that the laws allow police to take property under the flimsiest of reasons and keep it even where there is no accusation that the owner did anything wrong Cops Are No Better Than Criminals (2011).

Guest Mike Riggs, a reporter for Reason, declines to call Zadek’s framing hyperbole, saying that for people affected by asset forfeiture laws the description is not exaggerated, and that people have lost houses, cars, investments, savings and heirlooms under a law that puts the burden of proof on the person whose property is taken rather than on the taker. Zadek draws the contrast with criminal forfeiture, where criminal law due process applies: conviction with the safeguards of the prosecutorial process, a lawyer, and the Constitution honored, after which the fruits or tools of the crime can be confiscated Cops Are No Better Than Criminals (2011).

Campus tribunals

A 2014 episode takes up due process on college campuses. Zadek’s introduction says students are deprived of many constitutional protections, and he lists the rights he says they are reminded of in civics classes — to be confronted by your accuser, to a criminal trial by jury of peers, and basic rights of due process — before describing college campuses as the most unconstitutional environments in America. The episode is built around Cathy Young’s article “Guilty Until Proven Innocent,” and the summary says Title IX and federal mandates from the Department of Education pressured universities into quasi-judicial systems lacking constitutional safeguards like the presumption of innocence and the right to legal counsel Aren’t Men Entitled to Due Process on Campus? (2014).

Impeachment and the criminal-law analogy

In the impeachment episode, Zadek argues that impeachment is not primarily punitive to the officeholder but an act to protect the country, and that the impeachable offense ought to be a breach of the public trust. He says he does not like the analogy to criminal law because the primary focus is what is good for the country, not punishing a bad actor Which Impeachment Movie Are You Watching? (2019).

Guest Gene Healy agrees in part, explaining that every element of a statutory offense must be meticulously proved in a criminal trial because the trial ends with loss of liberty and in the extreme maybe life, so criminal defendants get a lot of due process and should. Impeachment, he says, is a broader inquiry resulting in loss of a job, and he calls the Republican arguments about constitutional due process at the House inquiry stage just plain wrong, noting that grand jury defendants do not get the right to call witnesses or confront their accuser — that comes at trial Which Impeachment Movie Are You Watching? (2019).

Substantive due process and unenumerated rights

Two later episodes turn to the doctrinal side. In the episode on The Conservative Constitution, Ilan Wurman describes the Due Process Clause of the 14th Amendment as saying that no state shall deprive any person of life, liberty, or property without due process of law, and describes substantive due process as the idea that the clause is not merely a procedural limitation but a substantive limitation on the substance of legislation itself — the doctrine under which the Supreme Court has enforced rights to use contraception in marriage, to abortion, and to same-sex marriage and same-sex sodomy. He argues in his book The Second Founding: An Introduction to the 14th Amendment that the original meaning of the 14th Amendment precludes substantive due process, that there is no such thing, and that it was made up in the 1870s and ’80s. He also argues incorporation was wrong, while saying he thinks overall it has been a good thing The Conservative Constitution (2021).

In the episode on the Dobbs draft, Evan Bernick traces the other direction: long before Roe, the Court had recognized that the guarantee of liberty in the 14th Amendment’s Due Process Clause includes rights not specifically listed in the Constitution, such as the right to raise and guide the upbringing of one’s own children. He describes a gradual progression through a series of decisions recognizing a space of personal autonomy under the Due Process Clause — the right to choose whether to have children, to contracept or not, recognized first for married couples and then for unmarried couples — with Roe as the next step, concluding there is a right to choose whether to bear children once conceived. He notes the concern about what happens to these other due process precedents if the analysis applied to abortion is applied more broadly Evan Bernick on the Dobbs Draft (2022).

Zadek supplies the framing in that episode, noting that the Bill of Rights was enacted in 1791 and that Madison, who opposed a Bill of Rights, reminded us expressly in the 9th Amendment that just because a right is not listed does not mean you do not have it. He asks how the Supreme Court locates and protects rights that are not enumerated Evan Bernick on the Dobbs Draft (2022).

Fines, fees and tainted process

In the episode on the hidden cause of BLM riots, Bill Maurer of the Institute for Justice describes the firm’s tools against abusive fines. He cites the Excessive Fines Clause, which he says is based on a restriction in English law dating back to Henry I, appears in Magna Carta and the English Bill of Rights, and was carried into state and federal constitutions by the American founders. He also cites the Due Process Clause: where the police, the prosecutor and the judge all have a financial interest in the outcome of your case, that is a tainted system, and whether you are guilty or not you have not received due process — you have received something that looks like process but is not real process, because the outcome is foreordained Abusive Fines and Fees (2022).

Across episodes

The topic recurs from 2011 to 2022, but the episodes show no single developing argument: the early episodes treat due process as a procedural guarantee violated by forfeiture and campus tribunals, while the later ones argue over substantive due process and unenumerated rights, with Wurman and Bernick taking opposing positions on whether the 14th Amendment’s Due Process Clause supports unwritten fundamental rights.

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