Due Process of Law

What is "due process"? Forgive me if I've arrived late to the party but it recently dawned on me that "due process" doesn't mean anything. Due process means whatever the authorities says it means. Today "due process" can mean a court proceeding. Tomorrow "due process" can mean police knocking on your door and taking you or your stuff.

In the wake of the shootings, there is a lot more talk about "red flag" laws where just about anyone can call "the authorities" and say that you are behaving (or speaking) in a manner that "concerns" them. Then the police can come to your place of residence and demand you surrender your firearm or else be killed by the same authorities. You may be thinking that the last part is not in the law. No, but any law is ultimately enforceable by the use of deadly force. Ask Eric Garner.

Another example. Statutory rape. There is no defense to statutory rape. If a person has sex with a minor regardless of circumstances, they are guilty of statutory rape. What circumstances could there be that works in the favor of the defendant? Not knowing the age of the person. A few years ago an ex-football player was caught in just such a situation. He paid for a prostitute. Whether you agree with prostitution or not is not the subject here. The person who came to his hotel room was underage. He did not know that. He assumed (wrongly) that the woman who presented herself to him was of age. She did not tell him she was underage. After the event, the ex-football player was arrested and charged with statutory rape. Apparently, the girl's pimp misrepresented the girl to the ex-footballer.

Would the ex-footballer have knowingly engaged in sex with a minor? It's possible. It certainly does happen. And certainly, a person who does so would have an incentive to lie and say they didn't know. But I still find it objectionable that a person can be found guilty of a crime in the absence of criminal intent. And for those who say that he should have known because she "looked" young, I say, come out from under the rock you live under. Many young, legal women do not look their age. There are 18-year-olds who do not look it. Not my personal taste, but they are out there and it's not my job, or the state's to dictate what those women should do, or with whom.

So back to the "due process" discussion. Since Trump has been elected to office, various left-leaning "judges" have made decisions that are unsupported by the letter of the law that they are supposed to be upholding whether they like it or not. Many of these judges have gone so far as to overextend the scope of their decisions far beyond their jurisdictions. In short, these judges have created new "due processes" out of thin air. If the government and/or its agents can decide what "due process" is based on how they felt on that particular day, then there is nothing safe from the state. Either the state is restrained by law or it isn't.

Another way "due process" becomes an "illusions" is by creeping criminalization. The entire concept of "hate speech" runs against the 1st amendment. Yet we have the department of homeland security calling the owner of a private business in for questioning because the El Paso shooter allegedly posted his manifesto to a site hosted by or that does business with Cloudflare.

How did this even get past the agency lawyers? Whether the shooter's manifesto was posted to the site or not, it is still protected speech. The government has absolutely no business in calling in citizens to question them about their or other's speech.

So perhaps I'm late to the party but it seems that the idea of "due process" isn't really what we think it is. After all, if courts can rule that "shall not be infringed" or "shall not be abridged" means they can infringe and abridge, then there really is no "due process" worth believing in.