Is This Constitutional? Here's How Due Process Works

Due process is really having a moment, and the Founders are rolling in their graves.

The basic legal principle—that people have the right to challenge the evidence against them before the government takes away their liberty—is central to the Constitution. And yet, it has come under fire recently, after President Donald Trump's administration deported hundreds of immigrants it alleges are gang members to a prison in El Salvador.

It appears that many people are now eager to dispense with due process, or simply do not understand what it is or why it exists.

"The entire American media and left wing industrial complex has decided the most important issue today," said Vice President J.D. Vance last week, "is that the Trump admin deported an MS-13 gang member (and illegal alien)."

Vance was referring to Kilmar Abrego Garcia, whom the Trump administration illegally deported to El Salvador in violation of a court order—an action the government attributes to an "administration error." Abrego Garcia and many other men, most of them Venezuelan, were shipped to El Salvador's mega prison, Centro de Confinamiento del Terrorismo (CECOT). There, President Nayib Bukele has suspended civil liberties, including due process, allowing him to imprison people indefinitely without a fair trial.

Is it possible that some people sent to a Salvadoran prison were in a gang? It is. It is also possible some were not, which is precisely why we have due process: to test the integrity of the government's allegations. That is an American value, not a left-wing value.

"Did Rachel Morin get due process? Did Laken Riley get due process?" right-wing influencer Jack Posobiec inquired recently. "No one ever asks that."

Morin and Riley were murdered by immigrants, which is tragic. But Posobiec's question implies he doesn't understand what due process is at a basic level. By his logic, we should abolish the doctrine for anyone accused of bad acts, which is backward: The point of due process is to provide fairness to people accused of crimes, because the government doesn't always get it right. "Because we said so" isn't good enough. 

OutKick founder Clay Travis noted that "if the president can't deport illegal immigrants then we have no border at all."

The president can, in fact, deport people. At issue is whether or not he can send them to a third-world prison, where they will be held without charge or conviction. These are two different things. And it isn't relevant that the people deported weren't U.S. citizens, because the Supreme Court has repeatedly confirmed that even immigrants suspected of being in the U.S. illegally are entitled to due process of law.

"I can't fully articulate this problem yet," former Libertarian Party chair Angela McArdle wrote, "but I think that libertarianism has been hijacked by radical empathy & that we don't fully understand the concept of a right to a fair trial and the presumption of innocence. Libertarians have elevated it over all other rights & factors."

The Founders made due process central to the Constitution not because they loved criminals, but because they understood that any system of justice will give people a chance to publicly challenge the government before it deprives them of their liberty indefinitely, as the government has done here. That should be important to anyone who cares about the Constitution and the rule of law. "Libertarians Who Believe the Government Is Perfect and Trustworthy" is not a coherent ideology.

If you love the Constitution, you have to love due process.

Photo Credits: Juan Carlos/ZUMAPRESS/Newscom; EL SALVADOR PRESIDENTIAL PRESS O/UPI/Newscom; AFP / GDA Photo Service/Newscom; Taylor Friehl on Unsplash; Randy Laybourne on Unsplash; Ben Moreland on Unsplash

Music Credits: "Grab the Goods" by MooveKa via Artlist; "Above the Skies" by Icosphere via Artlist; "The Walking Cat" by Out of Flux via Artlist; "Swiping Right" by Damon Power via Artlist

• Video Editor: Danielle Thompson