by Meg Mott
Due process, like free speech, is a bedrock principle of constitutional democracy. The due process clause in the Fifth and Fourteenth Amendments prevents public officials from detaining anyone without a formal charge or finding someone guilty without giving them a chance to present their defense.
Everyone says they want due process, but most of us only want it when it thwarts the ambitions of the other side, not when it constrains our side. But that’s not how due process works. Like free speech, we must want due process regardless of the outcome.
Right now the Trump Administration has rightly come under attack for denying aliens their right to due process in deportation proceedings. When the Trump Administration began deporting members of the Venezuelan gang Tren de Aragua, a designated terrorist group, the accused filed for a temporary restraining order, claiming that their due process rights had been violated. A federal district judge in Texas disagreed. The Alien Enemies Act was properly invoked, said the judge, and the government could remove them at will. Their lawyers from the ACLU immediately filed a petition to enjoin the district court’s order.
On Friday, May 16 the Supreme Court agreed with plaintiffs. “The Fifth Amendment,” wrote the Justices, “entitles aliens to due process of law in the context of removal proceedings.” The justices noted that the Trump administration seemed to have difficulty following this constitutional clause. They referred to the case of Abrego Garcia, who was given “notice roughly 24 hours before removal, devoid of information about how to exercise due process rights to contest that removal.” This sort of government action, they concluded “surely does not pass muster.”
For those who are hostile to the Trump Administration, the Supreme Court’s ruling sounds like a win for your side. But that’s not how due process works. Just because the detainees’ rights were violated doesn’t mean they receive a “get out of jail free” card. Instead, the Supreme Court remanded the case back to the Fifth Circuit, telling the Fifth Circuit that they need to come up with a process that meets constitutional standards. Such a process may result in deportations. What matters is the fairness of the process, not the outcome.
Unfortunately, many Americans are only interested in due process when it gives them the outcome they want. The very people who are rightly declaiming the unconstitutional behavior of the Trump Administration were quiet during the Obama and Biden Administrations, when there were serious violations of due process afoot.
The most egregious example out of the Obama Administration was the secret “kill list.” Suspected Muslim terrorists, who in the past would have been kept at Guantanamo (often without being charged), were targeted for assassination by drones. The Commander in Chief was the prosecutor, judge, and executioner. At the time, there was little demand from Democrats to protect the due process rights of condemned Pakistanis.
Democrats were also silent during the crusade to end sexual misconduct on college campuses. The Title IX rules under the Obama and Biden administrations greatly reduced the rights of the accused. Respondents could not cross-examine any witness, nor receive advice from legal counsel during the proceedings. Those rules prevented the parties from using restorative justice, even if the complainant preferred that option. Trump’s first administration reinstated those rights, a move that few on the left were willing to champion.
But that’s no way to protect due process.
The ACLU should be commended for championing the due process rights of deportees. But when the Democrats were in charge, the ACLU was visibly absent from any concerted effort to protect the rights of those accused under Title IX. Instead, they tended to support plaintiffs who complained of a hostile environment rather than the students threatened with expulsion in a proceeding without due process.
To be clear, anyone who feels that they have been subject to sexual harassment deserves redress. They deserve to make their case and to demand a remedy. But no one benefits when the procedure itself is not fair, when the accused has no opportunity to make their case, or when the proceedings are so opaque that no one knows what is going on.
Even victims do not benefit from proceedings without due process. In 2023, the Connecticut Supreme Court declared that a Complainant in a Title IX case at Yale was not entitled to immunity in a defamation case. These “quasi-judicial proceedings” surely did not pass muster. By ignoring the due process rights of the accused, the accusers now find themselves at risk of being sued.
The right to due process is bigger than any side’s ambitions, grander than any side’s fears. It is a commitment we make to one another to hear the other side of the story, to consider the innocence of another human being. Without due process, we will be tempted to believe that our judgments are right, not because they are but because we want them to be so.
An earlier version of this opinion was published in The Commons.
Meg Mott taught political theory and constitutional law at Marlboro College and now wrangles the Constitution in her spare time. She has been Putney Town Moderator since 2015.