Due Process of Law [No. 86]
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Due Process of Law [No. 86]


The
historic function of the due process of law was to prevent arbitrary government power. What makes a law arbitrary is that it’s insufficiently
supported by reason. That certain people are being treated differently
than other people without an adequate justification, or that the liberties of everyone are being
restricted without an adequate justification. So the onus under the due process of law is
not to identify a fundamental right and then give that right some kind of heightened status
that requires heightened justification, rather, it is to ensure that all laws have an adequate
justification in reason. That means all laws are within the proper
powers of a legislature to enact. In the case of the federal government, it
must be a law that is within the enumerated powers of Congress to enact. In the case of a state government, it must
be a law that’s within the police power of a state to enact. The due process of law in England or the law
of the land provision in the Magna Carta was originally applied to the executive branch
only to prevent arbitrary deprivation of life, liberty, or property by the crown. Under the constitution the due process of
law binds all three branches of government, including the legislative branch. It prevents legislatures from enacting arbitrary
laws in the same way the Magna Carta prevented the crown from enacting arbitrary edicts. There are two due process of law clauses in
the Constitution. One, in the 5th Amendment, applies to the
federal government. The second, in the 14th Amendment, applies
to state governments. Every time you have a 1st Amendment challenge
to a federal statute, a freedom of speech challenge to a federal statute, this is also
a due process of law challenge. Why? Because the due process of law requires a
judicial forum in which a citizen can contend that Congress has exceeded its powers by violating
the freedom of speech. The same thing with a Commerce Clause challenge. A Commerce Clause challenge is also a due
process of law challenge. Why? Because the citizen gets a judicial process
in which they can challenge a law as exceeding Congress’ power under the Commerce Clause. The due process of law provides a judicial
process in which an individual citizen can claim that a particular act of the government
is beyond its powers to enact, and the judges will neutrally evaluate that claim.

One Comment

  • Bane

    This country has no due process. It comes it drips only when the media is watching. 200+ years and we can't agree on laws? Time for a new form of government.

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