By Mikay­la Bun­nell
UConn Jour­nal­ism

The Fifth and 14th Amend­ments estab­lish the right that no one in the U.S. shall be “deprived of life, lib­er­ty or prop­er­ty with­out due process of law.” Due process doesn’t just apply to the courts, though. Con­necti­cut ACLU Legal Direc­tor Dan Bar­rett said that it also applies to gov­ern­men­tal deci­sions and account­abil­i­ty. He says that due process includes vot­ing and trans­par­ent gov­ern­ment. 

“You could say [due] process is like the foun­da­tion of democ­ra­cy, for the basic rea­son that we tend to think that when the gov­ern­ment does some­thing, it ought to have a rea­son for it, and about to have some basis for doing it,” he said.   

The Fifth Amend­ment and the 14th Amend­ment both estab­lish due process rights, but for dif­fer­ent rea­sons. The Fifth Amend­ment estab­lished the right against tes­ti­fy­ing against one­self or being tried for the same crime twice and also estab­lish­es due process rights in regard to the fed­er­al gov­ern­ment. The 14th Amend­ment, which estab­lished the equal pro­tec­tion clause, applies due process to the states.   

Due process does not just apply to U.S. cit­i­zens — it applies to every­one in the coun­try, even undoc­u­ment­ed immi­grants, Bar­rett said.  

“Here in the Unit­ed States, there’s a cou­ple of pro­vi­sions of the Con­sti­tu­tion that speak to Amer­i­cans specif­i­cal­ly, but the rest of it speaks in gen­er­al­i­ties,” Bar­rett said. “And so if you are phys­i­cal­ly present, you are sub­ject to Amer­i­can law… you have the pro­tec­tions, for exam­ple, of due process, which means that you get a notice and a mean­ing­ful oppor­tu­ni­ty to be heard on the ques­tion of whether or not you are in the coun­try law­ful­ly or should be removed.”  

Trump has repeat­ed­ly said that undoc­u­ment­ed immi­grants pose “sig­nif­i­cant threats” to Amer­i­cans to jus­ti­fy his crack­down on immi­gra­tion. Bar­rett said that instead of going through the immi­gra­tion courts, the Trump admin­is­tra­tion is just decid­ing to “eject” peo­ple with­out due process. 

 “[The admin­is­tra­tion] des­ig­nates peo­ple as ene­my aliens, regard­less of what some judges said,” Bar­rett said. “It loads peo­ple onto planes and flies [them] into coun­tries they’ve nev­er been to and dumps them there.” 

An exam­ple of due process is a writ of habeas cor­pus: an order to an offi­cial who has some­one in cus­tody — like a police offi­cer or immi­gra­tion offi­cer — that says they must bring the pris­on­er to court to explain the detain­ment. The court will deter­mine if detain­ment is law­ful or not. If they find it unlaw­ful, the court can demand their release. Arti­cle 1, Sec­tion 9 men­tions two excep­tions to habeas cor­pus: rebel­lion or pub­lic safe­ty. Dur­ing the Civ­il War, Pres­i­dent Abra­ham Lin­coln used the pub­lic safe­ty excep­tion to sus­pend habeas cor­pus in an attempt to quash anti-Union rebel­lion. The sus­pen­sion was reversed after the war. 

Bar­rett said that habeas cor­pus and due process work togeth­er to pre­vent the gov­ern­ment from detain­ing peo­ple just because they don’t like their char­ac­ter­is­tics, like being men­tal­ly ill, an immi­grant or home­less. The Con­sti­tu­tion says that peo­ple can only be held if “they meet a cer­tain thresh­old for deten­tion, and then after that they get due process,” Bar­rett said. 

—by Mikay­la Bun­nell, UConn Jour­nal­ism