Sleepwalking Towards Tyranny

Due process matters. Especially when it’s hard.

No, Trump isn’t Hitler. No, neither Biden nor Harris are Stalin. This does not mean that any of them are upholders of personal freedom or that their policies aren’t leading us down a road to autocracy.

I’m two thirds of the way through an article that was supposed to be my next post, but I’m seeing too many “due process is too hard” arguments for this to wait. I’d say that it saddens me that I, a Canadian, must explain the importance of due process to Americans but that would be false. It sickens me.

There are two conceivable reasons for holding the position that due process can and should be ignored, ignorance and foolishness. The ignorant do not understand the purpose of due process while the fools believe that the government can be trusted to ignore it “just this once.” This is not the first time Trump’s supporters have backed moves which are unconstitutional or run counter to the sprit of the law. Recent examples include:

• Executive Order to End Birthright Citizenship (January 2025)

  • Constitutional Issue: The 14th Amendment states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The Supreme Court’s United States v. Wong Kim Ark (1898) upheld birthright citizenship for children of non-citizens, with 120 years of precedent. The Guardian

• Freezing Congressionally Appropriated Federal Funds (January–February 2025)

  • Constitutional Issue: Critics argued this violated Congress’s power of the purse under Article I, Section 9, and the Impoundment Control Act of 1974, which requires Presidential rescissions to be approved by Congress. The Supreme Court’s Train v. City of New York (1975) mandates that appropriated funds must be spent unless Congress authorizes otherwise. The Conversation

Lest the reader think that this is simply an anti-Trump rant, this type of thinking is not unique to the right. Both sides of the political divide regular ignore or complain about “the rules” when they don’t get their way and it’s a dangerous trend. To avoid accusations of anti-Trump/Republican bias, here are a few examples of the left engaging in the behavior:

• Forgiving student loans is unconstitutional but Biden tied it anyway. Three times.

• Democrats frequently argue that it is too difficult to pass Amendments to change the Constitution. The New Yorker

• The National Popular Vote Interstate Compact is attempting to make the Electoral College irrelevant because “anti-democratic” (read: currently a disadvantage to Democrats).

• And in Canada, Trudeau enacted the Emergencies Act and froze the bank accounts of citizens knowing full well the actions would be deemed unconstitutional (long after it was too late to do anything about it)

Being one of the very few people who bases his decisions on the rule of law and logic is an endless source of frustration to me. How simple it must be to believe that right and wrong depend on what you personally want. I blame the education system for much of this. My time as a TA in a US school taught me one valuable lesson; most people graduating from college are barely literate. I almost wrote “barely sapient.” There is a good case for making the “barely sapient” argument. If everything you believe are the thoughts of someone else, by what right do you present yourself as having “advanced cognitive abilities?” However, putting semantic arguments aside, it is clear that too many people are in need of a basic refresher on Due Process.

What is Due Process?

When we speak of due process in regard to deportation we are referring to “procedural due process,” such as a right to a hearing, impartial tribunal, legal representation, and opportunity to present evidence, before government action (e.g., criminal trials, property seizures). This right is guaranteed by the Fifth Amendment which states:

• No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

It is also guaranteed by the Fourteenth Amendment which states:

• All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws

Note the district references to “citizen” and “person” indicating that due process applies to everyone, not just citizens. Just so we’re clear, illegal immigrants fall under the “person” category.

Why does it matter?

“A little history never hurt anyone”

Due process can be traced back to the Magna Carta (1215) but its inclusion in the US Bill of Rights is more accurately traced to the Intolerable Acts, five punitive laws targeting Massachusetts and the colonies passed by Parliament in response to the Boston Tea Party (December 1773). The two most closely associated with due process were:

• Boston Port Act (March 1774):

  • Details: Closed Boston’s port until the East India Company was compensated for destroyed tea, in the process crippling the economy and punishing residents collectively.

  • Due Process Violation: Colonists argued this was a mass deprivation of property and liberty without individual trials or hearings, violating Magna Carta’s “lawful judgment” principle.

  • Impact: The First Continental Congress (1774) condemned the act as “unjust,” citing denial of due process, fueling calls for legal protections.

• Administration of Justice Act (May 1774):

  • Details: Allowed British officials accused of crimes in Massachusetts to be tried in England or another colony, shielding them from local juries.

  • Due Process Violation: Dubbed the “Murder Act” by colonists, it undermined the right to a trial by peers, a Magna Carta principle. It denied fair hearings for colonists seeking justice against officials, seen as arbitrary royal privilege.

  • Impact: This act heightened fears of unchecked executive power, influencing due process clauses to ensure judicial fairness.

Historian Pauline Maier argues that these colonial experiences made due process a “non-negotiable” response to British abuses.

History tells us why it matters but there’s another reason why we should defend due process…

Sometimes the other side is in charge

"Never give the government a power you wouldn't want your worst political enemy to wield”

-- Harry Browne

Browne’s statement should be obvious to everyone and yet too many people seem not to grasp it, instead eagerly vote the government new powers whenever fear rears its ugly head. They are then surprised when the power is used in ways they don’t approve of.

"You can't give the government the power to do good without also giving it the power to do bad—in fact, to do anything it wants."

-- Harry Browne

When a society has reached the point where a government is no longer restrained by the rule of law but may instead do as it pleases, that society is then governed by “arbitrary rule.” “Arbitrary rule” violates principles of justice by disregarding individual rights, procedural fairness, and the rule of law, often resulting in abuses of power. Fools believe that the government can be trusted to ignore due process “just this once” the wise understand that a law that is optional is not a law. Thomas Hobbes said it best: “For where there is no obligation, there is no law; and where there is no law, there is no injustice.”

When governments ignore the law, it undermines the foundation of a stable, just society and leads to:

• Erosion of Trust: Laws represent a social contract. If governments bypass them, citizens lose faith in institutions, leading to cynicism or unrest.

• Arbitrary Power: Ignoring laws allows governments to act on whim, fostering corruption or tyranny. Without legal constraints, decisions can favor elites or suppress dissent, as seen in cases like authoritarian regimes where constitutions are routinely ignored.

• Inequality Before the Law: Laws ensure fairness. When governments sidestep them, it creates a system where some are exempt, undermining equal treatment.

• Instability: Laws provide predictability. If governments ignore them, it creates uncertainty, discouraging investment, cooperation, or civic participation.

• Moral Decay: Governments set a societal example. Lawlessness at the top normalizes unethical behavior, weakening the rule of law broadly.

We do not demand due process for the accused because of some charitable sentiment or love for our fellow citizens but out of selfish regard for our own rights and an understanding if the government can deprive one individual of their rights it can deprive any individual of their rights.

Conclusion

Arguing that the Fifth and Fourteen Amendments can be ignored because otherwise “it would be too hard to deport people” is akin to arguing that the Second Amendments can be ignored because otherwise it would be too hard confiscate guns. The argument is weak and if it is allowed to win the day, it will undermine the rule of law and take America one step further down the road to an autocracy in which laws are unequally enforced by mandarins that owe their loyalty not to the people, but to the tyrant that appointed them.

A little over 250 years ago the American patriots fired the first shots at the Battles of Lexington and Concord beginning their battle against tyranny. They rightly believed that it was wrong to let tyranny shape the American landscape in the 18^th century. It would be even more wrong to let it shape the landscape of the 21^st century.