Due Process Clauses
- Are you familiar with the Due Process Clauses of the Constitution?
- Do you know what terms like liberty, property, and Due Process mean?
- Why are Due Process protections so important to your personal liberty.
I’ve been talking a lot recently about the Due Process Clauses in the Fifth and Fourteenth Amendments. Why? Because they seem to be lost in the noise created by the current legal climate. I thought it would be a good time to dive deeper into these two clauses, both so we can understand them and to see how often they are violated, even if the judiciary does not.
Before we examine these clauses more deeply, we should really have a strong grasp on what Due Process is. Made up of two words, you would think it a quite simple definition. However, small and simple are not necessarily related.
Due: Owed; that ought to be paid or done to another.
Process: A proceeding or moving forward;
So, Due Process is a proceeding that ensures what is owed, what must be paid or done to another. If you don’t find that definition very helpful, I don’t disagree. Which is why I like to use the definition of the phrase from The Free Legal Dictionary:
An established course for judicial proceedings or other governmental activities designed to safeguard the legal rights of the individual.
The Fourth through Eighth Amendments in the Bill of Rights are referred to as the “Due Process Amendments” because they are designed to safeguard your legal rights as an individual. Everything from reasonable searches and warrants to protections against excessive bail or fines are included in these amendments. While not the sum total of the protections of your rights, these amendments were created as part of the Bill of Rights specifically to protect the rights most likely to be infringed upon by government. And right there in the Fifth Amendment is its Due Process Clause.
No person shall … be deprived of life, liberty, or property, without due process of law;
The Fifth Amendment includes so many protections. The requirement of a Grand Jury indictment for capital or infamous crimes and protections against double-jeopardy and self-witness, are all included in this one amendment. However, it seems that of the last two, the Due Process and Takings Clauses, everyone focuses on the latter to the detriment of their own case.
The Fifth Amendment, along with its counterpart in the Fourteenth (which specifically applies to the states), requires that before you are deprived of life, liberty, or property, there must be due process of law. Meaning that before you can be deprived of these things, government not only has to follow a process that protects your individual rights, but is has the burden of proof that you are being deprived of them for a lawful cause. The government isn’t allowed to simply declare that something is an emergency and deprive you of your rights. Unfortunately, that is exactly what has been happening the last 18 months. Government actors claim there is an emergency and that it gives them the right to deprive you of your life, your liberty, and your property without even claiming that you are a danger to others, much less actually proving it. And because the American people are so ignorant of both the Constitution and their rights, most of them went right along with the tyranny. Not only did many Americans comply with these orders, many seemed to make it their mission to bully others into compliance as well. When those in government couldn’t get around the laws directly, they got businesses and corporations to do it for them. And during all of this, most of the American people sat back and did little more than complain, if even that. In short, due process was effectively thrown out the window while the American people either watched or helped.
Life, Liberty, and Property
When I first started studying the Constitution, I wondered why the Framers listed these three items in the Due Process Clause. Why not include rights or freedom? What was so important about these three things things that they should be protected so? Then, as I studied them, I realized just how overarching this clause truly is.
Of the three, life is probably the easiest to describe. We all know that if something is breathing and has a heartbeat, it is alive. And since no one on earth can return your life to you, it is important that it be protected. That is why, I believe, that life is included in the due process clauses. If you can have your life taken away by a process that does not protect your rights, well, what are liberty and property worth without your life?
We’ve all seen reports about the conviction of Dereck Chauvin for the death of George Floyd. Whatever the charge, Mr. Chauvin was found, by a jury of his peers, to have deprived George Floyd of his life in a process that did not protect his individual rights. This judgement has led to Mr. Chauvin being deprived of his liberty. This however, was done with due process of law, meaning Mr. Chauvin’s individual rights were protected.
If you ask most people to describe liberty, I think what you’ll find is more like “I’m not sure, but I’d recognize it when I see it” than a real definition. When I wrote my book, I decided I needed to do some research to come to a real, workable definition of liberty.
Liberty: Freedom from restraint, in a general sense, and applicable to the body, or to the will or mind.
To start with, liberty is freedom from restraint of any kind; the freedom to both think and act as you like. It doesn’t take much of an imagination to see how this could quickly turn into a real mess. If I do what I want, and you do what you want, what happens when our wants conflict? Liberty would quickly devolve into the biggest, strongest, or most influential getting what they want to the detriment of everyone else. What would happen if I had the freedom to take your wallet, your car, or your cellphone, or if you had the freedom to take mine? This general liberty, or anarchy, has to be tempered by something.
Natural liberty consists in the power of acting as one thinks fit, without any restraint or control, except from the laws of nature.
So general liberty is tempered by natural liberty, the power to act as one thinks fit restrained only by the laws of nature. What are these laws of nature? They are the laws so obvious that a sane person doesn’t need to have them written down. I like to summarize them as, “we don’t hurt people and we don’t take their stuff.” But what about things that are not part of the natural law?
Civil liberty is the liberty of men in a state of society, or natural liberty so far only abridged and restrained, as is necessary and expedient for the safety and interest of the society, state or nation.
Civil liberty only places restraints on natural liberty as is necessary and expedient for the safety and interest of society, but there are two very important questions we need to ask here. First, who determines what is necessary and expedient for society? And second, how do they prove it?
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,
Since the role of government is to secure our rights, not to define them, and since governments get their just powers from our consent, then it cannot be government who determines what is necessary and expedient for society. Instead, ‘We the People’ are supposed to determine what is necessary and expedient for the safety and interest of society. Otherwise, government is exercising powers we have not consented to and are therefore unjust.
It’s more than that though, since it’s not enough for government or society to simply state, “We need this.” There has to be some proof. And this is exactly what’s been missing around the world the last 18 months. We were presented with doom and gloom predictions of millions dead from a deadly disease, only to find that the death rate is a small faction of what was predicted. But don’t worry, the same people who first claimed that masks wouldn’t work, then proclaimed that vaccines would prevent you from getting sick. Then, that it would only mitigate symptoms. Of course, these are the same people who are claiming that you need to follow their mandates, without any evidence of their effectiveness, because they are the “experts”. It seems we’ve forgotten that even experts can be, and often are, wrong. Which is why it’s so important that we require governments to follow due process before they are allowed to deprive us of anything.
What happens when restraints are put on our liberty that are not proven to be necessary for the safety and expedience of society?
A restraint of natural liberty not necessary or expedient for the public, is tyranny or oppression.
When we allow restraints on natural liberty not necessary or expedient for the public, whether that be by governments, businesses, or neighbors, what we have is tyranny. Yes, public mask and vaccine mandates are illegal and must be challenged. Also, what private mandates may be legal, that does not make them moral. If someplace you do business with, where you work, go to school, or any place else, mandates you take actions without proving the need for it, that is tyranny. Think about that the next time you walk into a business and see that “Masks Required” sign or when your employer tells you that you must get vaccinated. Ask yourself, will you trade your essential liberty for what has proven to be a false promise of safety?
“They who would give up an essential liberty for temporary security, deserve neither liberty or security.”
If liberty is the least understood of the rights protected by the Due Process Clauses, then property is the most misunderstood. I think it’s because we use the word ‘property’ in our everyday lives. We have real property and personal property which, I think, leads us to believe that property is stuff, but is that the limits of property?
This term in its particular application means “that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.”
In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage.
If we think of property as what we attach value to and have exclusive control over, then property becomes a very interesting right after all. Sure, you have a property in your home, your car, and even in your phone. You also have a property in what you say, what you think, and even what you believe. You have a property in your body and in your liberty. You have a property in your business and your ability to work. In short, you have a property not only in what you own, but in who you are. As James Madison put it…
In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.
Yet this right to property is not only ignored today, but it seems everyone from corporations, pundits, and average Americans are just as ready to deprive you of it as politicians, judges, and bureaucrats. How often have our rights to property been denied while some legal eagles debate about whether it’s a violation of the Takings Clause or some other esoteric opinion of some previous judge? The sad truth is, I cannot remember the last time I heard of a case in federal court that actually argued a deprivation of rights without due process. Yet if your body, your faculties, your abilities, and the very essence of who you are is your property, what are you willing to do when you are deprived of them?
So why do I focus so much on these Due Process Clauses? Because it is being violated almost every day at some level within the United States. From mask and vaccine mandates to eviction moratoria, from lockdowns to declarations of “essential businesses”, these are deprivations of either liberty or property without due process of law. And that’s not all. Healthcare laws, vehicle standards, toilet standards, lightbulb standards, forced collection of union dues, even the political primaries, are designed to deprive you of your life, liberty, or property, and they’ve all been done without due process of law.
I cannot count the number of people who have asked my advice about a Due Process Clause case only to find out their legal advocates haven’t even considered the subject. All the more reason we need to educate ourselves about our rights and how they can be protected by the Constitution of the United States. I believe this is why John Jay said “Every member of the state aught diligently to read and study the Constitution of his country, and teach the rising generation to be free.” Not simply so we can defend our rights, but so we can help others defend them as well. So when we see rights being violated we understand not only our rights, but our duty to help the victim. And so that we can assist in the defense of others, both legal and societal.
Now that you have a better understanding of the Due Process Clauses, what do you intend to do with this knowledge? Will you simply file it away as one more piece of data you never plan on using? Or will you use it to help that child being masked, the employee being told to get vaccinated if they wish to keep their job, or the small business owner being bullied by some government official to give up their rights to stay in business. Will you stand up, and come to the defense of those being intimidated by government or society? Or will you turn your head in shame and wait patiently for your turn to be deprived? As James Madison said:
If the United States mean to obtain or deserve the full praise due to wise and just governments, they will equally respect the rights of property, and the property in rights: they will rival the government that most sacredly guards the former; and by repelling its example in violating the latter, will make themselves a pattern to that and all other governments.
The United States, and in fact all of the states, will only obtain such praise when We the People demand it. Will We the People fulfill the promise of our national anthem “with liberty and justice for all”?
Paul Engel founded The Constitution Study in 2014 to help everyday Americans read and study the Constitution. Author and speaker, Paul has spent more than 20 years studying and teaching about both the Bible and the U.S. Constitution. Freely admitting that he “learned more about our Constitution from School House Rock than in 12 years of public school” he proves that anyone can be a constitutional scholar. You can find his books on Amazon and Apple Books. You can also find his books, classes and other products at the Constitution Study website (https://constitutionstudy.com). You can reach him at email@example.com