‘Due process’ has its moment in the spotlight

Image via Pixabay.

There he goes again.

Let’s skip over the weird punctuation and capitalization (again) and the irony of a president who invokes “due process” for someone close to him, but ignores it in the case of enemies or perceived enemies, and instead start by looking at the two words that make up “due process.”

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“Due” is a chameleon word, capable of being playing different roles. As we wrote in 2011, the prepositional phrase “due to” has become all-but-standard English in a cause-and-effect relationship like “she died due to a heart attack.” (Strict grammarians say that “due to” needs to be an adjective modifying a noun like “death” instead of a verb like “died.”) “Due” is also a noun meaning a debt; an archaic transitive verb meaning invest or endow; an even more archaic transitive verb meaning to be appropriate for; and an adverb or adjective, meaning owed, entitled to, or proper.

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“Process” can be a noun meaning a continuous action; an intransitive verb meaning to move in a specified group or order; and a transitive verb meaning to perform an action on someone or something to move it from one condition to another. (We “process” criminals through the justice system, food through a blender, and data through a computer, for example.)

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Put them together, and you have not just a way of moving things from one condition to another, but a requirement that it be done properly, deliberately, and appropriately.

The concept of “due process” derives from the Magna Carta and appears in two amendments to the Constitution, Cornell Law notes:

The Constitution states only one command twice. The Fifth Amendment says to the federal government that no one shall be “deprived of life, liberty or property without due process of law.” The Fourteenth Amendment, ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe a legal obligation of all states. These words have as their central promise an assurance that all levels of American government must operate within the law (“legality”) and provide fair procedures.

As Elizabeth Price Foley, a constitutional law professor at Florida International University, said on NPR in December, “due process” has something akin to three pillars: “One is having some sort of notice of the charges that are being levied against you. The second one is having an opportunity to rebut those charges. And then the third one is having some sort of neutral decision maker to hear the charges and make whatever ruling is appropriate.”

The #MeToo movement and Trump’s tweet have turned a spotlight on “due process.” Powerful men have lost their jobs and the public’s respect over accusations of sexual misconduct. While Foley noted that, strictly speaking, “due process” applies only when government is involved, over the years courts have expanded the concept of “due process” to include certain nongovernmental actions, as between an employer and employee. How the media—and social media—deals with these accusations does not fall in this legal realm; though how Trump deals with his own staff certainly does.

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Merrill Perlman managed copy desks across the newsroom at The New York Times, where she worked for 25 years. Follow her on Twitter at @meperl.