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The Constitution and Due Process
by Professor Kenneth J. Pennington
Syracuse University
 

The courts in this country are moving slowly towards recognizing that non-citizens have the same rights of due process as citizens. The legal and political debate about whether illegal immigrants and other non-citizens should have the privilege of having their cases heard in an American court room might benefit from a broader historical perspective. An individual's right to due process was born in late thirteenth-century European jurisprudence. By the fifteenth century, this right had become absolute. Every "person" was entitled to a public trial, had the right to present witnesses, to have a lawyer, and to have a judgment delivered in the public forum. The jurists commonly defined this bundle rights with the maxim "A person was presumed innocent until proven guilty." This ringing declaration of individual human rights was coined by a French jurist at the end of the thirteenth century but did not enter Anglo-American jurisprudence until the nineteenth.

The question is, then, how did individuals lose this right in the modern world? The answer is relatively simple and straightforward. With the rise of the national territorial state during the eighteenth and early nineteenth centuries, the state laid claim to absolute legislative and judicial sovereignty. Jurists supported this new leviathan. Consequently, they took the right of due process out of the bin of absolute rights that cannot be transgressed under any circumstances. They placed due process on scales that weighed an individual's right against the interests of the territorial state. The battle between the state and the individual in the twentieth century has been one-sided and brutal. In almost every contest between the two during the past hundred years, here and abroad, individual rights have been trampled by the state and its courts.

Our founding fathers drafted our Constitution just before the state triumphed. Its language and the wording of the Bill of Rights belong to an earlier era. If Thomas Jefferson and his committee were writing the Declaration of Independence during these gender-neutral times they would have undoubtedly substituted "persons" for "Men" in their most memorable sentence, "all Men were created equal, that they are endowed by their Creator with certain unalienable rights." However, Jefferson was not equating "men" with "citizens." The founding fathers did not conceive of rights only in territorial terms as we do today. Jefferson would be shocked if he were told that we now consider his "Men" as being only citizens or legal residents of the United States. There were no citizens of the United States of America on July 4, 1776, only persons residing in a new land. When the United States was established, many persons had no wish to become its citizens. Loyalists, Indians, French, Spaniards, African Americans, and women were included in a territorial state that took two centuries to grant all of them their full legal rights as "persons."

The word "citizen" is not even used in the "Bill of Rights." "Persons" have these rights. The matter is not simply semantic. In law words are important; in human rights they are crucial. The fifth amendment decrees that no "person" shall be convicted without presentment or indictment in times of peace and that no "person" shall be subject to double jeopardy. This language reflects earlier jurisprudence when the right of due process was not restricted to citizens. The French jurist who coined the maxim, "Innocent until proven guilty," would be puzzled that today we embrace the maxim but find reasons to violate it. For him, it meant "no one, absolutely no one can be denied a trial under any circumstances. And that everyone, absolutely everyone, had the right to conduct a vigorous, thorough defense." Following this logic to its inexorable conclusion, these jurists even argued that if the devil himself were to be judged, he must be granted all the rights of due process.

If we take rights seriously, we may see that the equivocal language of our Constitution furnishes a vehicle and a formidable legal argument for recognizing the rights of all persons, even illegal immigrants, terrorists, and other enemies of the state. In our most recent confrontation with the issue, politicians who had turned their backs on Haitians, Cubans, Mexicans and others whom the INS had routinely deprived of their rights of due process have suddenly discovered religion in the person of a six year old boy. I hope these politicians continue to embrace due process for all persons in the future. After all, when we take the rights of any human beings away, we undermine the absolute guarantee of all of our rights for each of us.

 
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