Meg Mott is professor emerita of Marlboro College and Emerson College and describes herself as a "Constitution Wrangler."
PUTNEY-Due process, like free speech, is a bedrock principle of constitutional democracy. The Fifth Amendment states that "no person" shall be "deprived of life, liberty, or property, without due process of law."
The due process clause prevents public officials from detaining anyone without a formal charge or finding someone guilty without giving them a chance to present their defense. The federal courts have done a lot of work over the years to protect this fundamental liberty, but they can only do so much.
We count on the courts when we don't have a political majority. The harder task is to count on ourselves when we do.
Here's the dilemma: We, the People, are easily seduced by partisan thinking. You can tell that free speech has become partisan when one group wants it only when it protects their speech and not the speech of their political opponents. This position is known as "free speech for me, but not for thee."
A similar distortion takes place with due process. One group wants due process only when it thwarts our enemy's policy agenda, but not when it slows down the guy we voted into office. When violations of due process are only invoked against political opponents, we're not really defending due process. It has to be "due process for thee as well as for me."
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Right now the Trump Administration has rightly come under attack for denying undocumented immigrants their right to due process in deportation proceedings.
When the Trump administration, citing the Alien Enemies Act, began deporting alleged members of the Venezuelan gang Tren de Aragua, a designated terrorist group, a number of organizations 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 the Venezuelans at will. Their lawyers from the ACLU immediately filed a petition to enjoin the district court's order.
On 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. Referring to the case of a Maryland man who had been mistakenly sent to an El Salvador prison, the justices detailed the violations. Kilmar Armando Abrego Garcia 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."
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If you are among 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; it is not a declaration of innocence.
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, ordering the Fifth Circuit to come up with a process that meets Constitutional standards. Such a process may result in deportations.
What's at stake in this case is the fairness of the process, not the outcome. Unfortunately, many Americans are interested in due process only 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 the Guantanamo Bay Naval Base (often without being charged), were targeted for assassination by drones.
The commander-in-chief, someone who taught constitutional law, 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 about due process 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 those accused. They could not cross-examine any witness, nor receive advice from legal counsel during the proceedings. It also 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.
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The question for all of us is: Do we really want due process?
We may look at Trump's mass deportations and see many instances where innocent persons are suffering terrible injuries. The ACLU should be commended for taking on these cases and thwarting the designs of the government.
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.
The right to due process, like the right to free speech, 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.
My hope is that the current administration's high-profile losses with the federal courts will give us the vocabulary to question the government, regardless of which party is in charge.
For due process to get its due, we all need to get behind the demands of the Fifth Amendment - not our partisan preferences.
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