By Ray Brescia
As the United States edges up to the 250th anniversary of the Declaration of Independence in 2026, one of the core principles the founders sought to advance – that the government must act with accountability and in accordance with the rule of law – is being strongly tested.
In their deliberations leading up to the declaration, the founders would not just raise deep concerns that the government of King George III was violating the Colonists’ rights, which they described in the declaration. They would also enshrine these principles in the U.S. Constitution over a decade later through the concept of “due process.”
What did the framers likely mean when they did so? That’s no longer simply an academic question for legal scholars like me. The meaning and application of due process has become a crucial issue in the U.S., most often with respect to the Trump administration’s migrant deportation efforts.
Over the past several months, the U.S. Supreme Court has made several rulings in deportation-related cases with respect to what’s called the due process clause of the Constitution.
In April 2025, in the case Trump v. J.G.G., the court seemed to state quite clearly that deportations could not take place without due process. More recently, however, in D.H.S. v. D.V.D., the Supreme Court prevented a lower court from providing due process protections to a group of men the administration wanted to deport to South Sudan, where they are at risk of facing torture and even death.
These seemingly contradictory rulings not only make it unclear when due process applies but probably leave many asking what the term “due process of law” even means and how it works.
Mike Kline, Moment/Getty Images
The origins of due process
The American concept of due process can be traced from medieval England to its modern formulation by the U.S. Supreme Court. Doing so allows the meaning of due process to come into focus. It also calls into question the court’s most recent ruling on this issue.
The concepts of due process and the rule of law largely emerged in the 13th century in the Magna Carta, a formal, written agreement between King John of England and the rebel aristocracy that effectively established legal constraints on government.
One key passage from the Magna Carta provided that “No Freeman shall be taken, or any otherwise imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or destroyed; nor we will not pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the Law of the Land.”
This accord established formal constraints on a previously unrestrained regent, setting English law on the course that would prioritize rule of law over the whims of the monarch.
Over a century later, Parliament would pass the English statute of 1354 that said “That no Man of what Estate or Condition that he be, shall he put out of Land or Tenement, nor taken nor imprisoned, nor disinherited, nor put to death, without being brought in Answer by due Process of the Law.”
These principlesd evolve over time in British law and then informed the emerging revolutionary spirit in the American Colonies.
Released in January 1776, Thomas Paine’s pamphlet Common Sense would help galvanize and steel many Colonists for the revolutionary conflict to come. The work shifted the focus of Colonists’ anger from trying to force the king to treat them better to more radical change: independence and a country governed by the rule of law.
Library of Congress Rare Book and Special Collections Division
What the Colonists wanted, Paine wrote, was not a monarch: “So far as we approve of monarchy, that in America THE LAW IS KING. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.”
Defining due process
After independence, many of the original 13 states adopted their own constitutions that would enshrine principles akin to due process to protect their constituents from government overreach, such as that government was to be bound, as it was in Virginia’s Declaration of Rights in 1776, by “the law of the land.”
But it was not until the nation adopted the Bill of Rights – the first 10 amendments to the Constitution – in 1791 that the federal government could not act in a way that deprived the populace of life, liberty or property without due process of law. After the Civil War, the 14th Amendment would apply these same protections to all government action, state and federal.
The contemporary and most comprehensive formulation of what due process requires can be found in the Supreme Court’s ruling in the 1970 case Goldberg v. Kelly, brought by welfare recipients challenging their loss of such benefits without a hearing.
In that case, the court determined that when governments attempt to deprive someone of their life, liberty or property, the target of those attempts must receive fair notice of the charges or claims against them that would justify that loss; be given an opportunity to defend against those claims; and possess the right to have such defenses considered by an impartial adjudicator.
The Supreme Court in 1976 would accept that due process protections in different settings will vary based on a number of variables. Those include what is at stake in the case, the likelihood that government might make a mistake in a particular setting, and the benefits and burdens of providing certain forms of process in a given situation.
When someone’s life is literally on the line, for example, more exacting procedures are required. At the same time, regardless of how important the interest that is subject to due process – whether it is one’s life, one’s home, one’s liberty, or something else – the components of fair notice, an opportunity to be heard, and to have one’s case decided by an impartial adjudicator must be meaningful.
Ray Brescia is Associate Dean for Research and Intellectual Life at Albany Law School.
Brian Chrestoff says
I would like to point out this Org never said a thing while Clinton and Obama over 16 years in office sent the FBI, ICE and Local enforcement after these same illegals and in total sent 7,500,000 packing and back to the place of their birth. Is it your contention that each and every one of those 7,500,000 received what you call or consider ” due process”. All 7.5M? That would be 1284 illegal aliens every single day f/ 16 years was given what you consider “due process” sent packing. They were assigned a lawyer and not a single civil or human right was violated during those 16 years? Of course it is because we are talking about Clinton and Obama. I would agree w/ you that most if not all did receive due process. But when Trump even tries to go after the Worst First he is attacked relentlessly. The reason today that an illegal finds their name on a list is because they have had their day in court and now has their name on the ICE list. My cousin is an Immigration Lawyer in Columbus, Ohio. I should say was. He could no longer stand the abuse and intentional sand-bagging of cases by the Illegal Aliens and their corrupt lawyers who would drag out the so-called due process f/ profit. The Illegals knew that they could run and not show up for their day in court and would be released into a Sanctuary City where the city admin helped then avoid detection. They knew that there were not enough court rooms or lawyers to make even a small dent in the millions and millions who broke our law and now demanded due process. We own these people nothing. They broke our laws to get in and it is time to send them home.
Andy Montgomery says
Immigrants are not Humans or Animal or slaves to the whims of the elete hidden running the world. The solution is simple.
Continue the annihilation of dumb sheep to entertain the egos of narcissistic Poumpiety gold plated purveyors of hopelessness disguised as hope.
The few goats are the source of all evil.
God bless America
We need it.
🧚🏻♀️😎🌈
Pogo says
@Ray Brescia (and FlaglerLive, for putting this forward)
Ably stated; fundamentally important — there is no substitute.
C says
Where was this article when Obama deported thousands of illegal aliens without due process?
Pierre Tristam says
Obama’s horrors on that score, and they were inexcusable, don’t lessen his successor’s amped up horrors.
Skibum says
In our system of government as well as the U.S. Constitution, one of the most important individual safeguards that we have is the promise of Due Process. That is our protection from government overreach, our guarantee that before an individual has any liberty taken away there will be some formal process where that person has the ability to defend themself, and where a court or other formal hearing receives the pertinent information from the individual before coming to an informed decision that may negatively affect that person’s self or property.
Due process rights are NOT guaranteed to individuals in this country based on the color of one’s skin or the language they prefer to speak. Yet we are seeing this corrupt, criminal led administration making up their own rules as if a person elected to serve as president has the power to suspend or subvert our constitutional rights and jab his middle finger at any federal court judge who dares to hold him accountable after violating constitutional safeguards put in place for those on American soil whether they are citizens or not.
Nobody, not me, not you, and certainly not the president or his army of jackbooted thugs, is able to look at anyone and say that individual is an undocumented alien based on their looks or speech. Federal authorities should never be allowed to yank anyone off of a street, out of a school classroom, or from inside a Home Depot while they are shopping, and somehow think they are able to lock them up, prevent them from being represented by an attorney or even attending a hearing because those unconstitutional acts are a direct violation of Due Process rights, and we should not even have to have a discussion about loading such individuals on planes, in secret, without even telling courts the names and other identifying information of those being removed and flown to foreign countries to be locked up with no ability to defend themselves from eviction from America without any chance to stand before a judge and state why they should not be legally deported.
Due Process is something we have taken for granted, but nobody can take it for granted any longer because if a president can order his thugs to do what is happening, and get away with it without any repercussions from the federal courts, then NOBODY in this country can say they are safe from such atrocities… not me, not you, and most definitely not anyone who doesn’t appear to be of Caucasian ethnicity.
If we allow this to become the norm, and people of a certain ethnicity are routinely disappeared, never to be seen here again, isn’t that the textbook definition of genocide that we have seen in some of the worst 3rd world countries?
Sherry says
@brian, c and all the other Fox addicted who keep posting the Fox BS “talking point” regarding the President Obama/Biden deportations ad nauseum . . . please get educated:
Comparison of the Obama, Trump, and Biden Administration Immigration
Enforcement Priorities
The Obama administration created immigration enforcement priorities to channel limited resources towards individuals it deemed to be high priorities, including threats to national security, threats to public safety, and recent illegal entrants.
The Biden administration returned to an Obama-like framework, in similarly utilizing limited resources to prioritize threats to national security, threats to public safety, and recent illegal entrants.
Departing from this approach, the Trump administration considers all undocumented immigrants high priorities for removal, expanding the categories so broadly as to render the priorities meaningless. Therefore, thousands of persons having established meaningful and productive lives and families in the US for well over 10 years are now being hunted down by masked ICE agents at their places of employment and worship. They are being arrested, hidden locked away from their attorneys and families, without warrants, by agents who refuse to show any kind of official identification. Sometimes they are even deported to and falsely imprisoned in foreign countries where they do not even speak the language, much less understand the laws or their rights.
Laurel says
It is interesting that some folks can read a whole article, and not adsorb any of it.
Sherry says
Nazism on the Rise in trump’s Maga world. . . this from Reuters:
HOCHATOWN, Oklahoma – Wearing cargo shorts, flip-flops and a baseball cap shading his eyes from the sun, Dalton Henry Stout blends in easily in rural America.
Except for the insignia on his hat. It bears the skull and crossbones of the infamous “Death’s Head” SS units that oversaw Nazi Germany’s concentration camps – and the initials “AFN,” short for Aryan Freedom Network, the neo-Nazi group Stout leads with his partner.
From a modest ranch house in Texas, the couple oversee a network they say has been turbocharged by President Donald Trump’s return to the White House. They point to Trump’s rhetoric – his attacks on diversity initiatives, his hardline stance on immigration and his invocation of “Western values” – as driving a surge in interest and recruitment.
Trump “awakened a lot of people to the issues we’ve been raising for years,” Stout told Reuters. “He’s the best thing that’s happened to us.”
While the Aryan Freedom Network and other neo-Nazi groups remain on the outermost edges of American politics, broadly regarded as toxic by conservatives and mainstream America, they are increasingly at the center of far-right public demonstrations and acts of violence, according to interviews with a dozen members of extremist groups, nine experts on political extremism and a review of data on far-right violence.
Several trends have converged since Trump’s re-election, Reuters found. Trump’s rhetoric has galvanized a new wave of far-right activists, fueling growth in white supremacist ranks. Trump’s pardons of January 6 rioters and a shift in federal law enforcement’s focus toward immigration have also led many on the far right to believe that federal investigations into white nationalists are no longer a priority.
Big Mike says
Great point Brian! What RIGHTS did our LEGAL citizens have from the illegal immigrants, such as , Laken Riley, a 22-year-old nursing student at the University of Georgia, was brutally murdered while jogging on campus in February 2024 The suspect, Jose Antonio Ibarra, a Venezuelan national who entered the U.S. illegally in 2022! More locally, more locally, what RIGHTS did a Daytona Beach have in 2022, when Jean Macean, an illegal immigrant who entered the U.S. posing as an unaccompanied minor, was charged with two counts of first-degree murder in March 2022 for killing a Daytona Beach couple. Macean allegedly stabbed the couple to death in a random act of violence. He had prior arrests for drug-related charges, which were dropped, reportedly due to lenient prosecutorial policies. My grandparent immigrated legally from Poland, worked hard, got their citizenship, legally, as our system provides. There is a zero argument that can be made for the conservative figures, suggesting 4–6 million unique illegal immigrants may have entered the U.S. from 2020 to 2025,
Tired of it says
Yes, illegal immigrants were sent back to their countries during the Clinton and Obama administrations…that is what Amuricans wanted . However, they were not arrested by masked men claiming to be law officers, they weren’t denied due process and they were not sent to third world countries, not their own, to be tortured and terrorized. They were not held in alligator infested Florida backwaters. Their children were not taken from them and adopted out without their knowledge, s the first trump administration did.
The things that are being done today are not humane nor worthy of what this country has stood for until trump.
Land of no turn signals says says
Here we go again with two tiers of accountability.What’s “great job,thumbs up”with one president who is dictator scum of the earth with another.Cry me a river then ship them out.
Skibum says
Some people are so blind to what is happening to our system of justice that they are going along with unconstitutional insanity and thinking nothing of it. Being okay with violating sacred rights outlined in the U.S. Constitution just because those violating it are not targeting YOU doesn’t make it right, and only emboldens more dangerous and widespread violations that could make any of us targets in the future.
For those undocumented migrants who are toiling out in the fields, employed by wealthy owners of the agricultural companies who we depend on for our locally grown food, why is it necessary for ICE to raid those work places and bother those workers if they are being productive and not getting into trouble?
For those undocumented immigrants who are working hard every single day in housekeeping, laundry and other related jobs in the hotel industry, or the many immigrants who work in the local restaurant industry taking care of the influx of visitors to our communities, why is it necessary for ICE to raid those work places and bother them if they are being productive and not getting into trouble?
For those undocumented immigrant students who are enrolled in schools getting an education so they can learn and become productive members of our society, why is it necessary for ICE to target children who are doing nothing more than attending school to learn if they are not getting into trouble?
It is one thing to detain and seek legal deportation of any undocumented immigrant who is committing other crimes and not doing what they are supposed to be doing while in this country. When this purge began, all we heard was that they would be targeting the “worst of the worst”, but the facts show that the vast majority of those who have been rounded up and placed in detention facilities have no criminal records at all. That is completely contrary to the original stated mission, revealing it’s true scope put forth by the WH and his white supremacy agency headhunters who are in charge of this unreasonable and unwarranted purge.
Whatever you think about what is going on, whether you approve of it or not, nobody in America should be clapping, smiling, or giving tacit approval when federal agents are directed to lock people up and then deny them the Due Process that the law requires! If you agree with doing that, you might as well just admit to the rest of us that you have no respect for the laws of this country or the U.S. Constitution that our laws are based on.
Due Process either has meaning for those in power, or America will just become another 3rd world banana republic with no respect from the many other countries who still do adhere to their own laws that ensure individual protections and guarantees of a legal process when someone is arrested.
Laurel says
It’s all about pecking orders. The weak and frightened have to be superior to someone. Confident people don’t rage against color or gender. Go ahead, pick your target.
Sherry says
Thank you Skibum. . . as usual an excellent comment based on reasonable analysis of credible facts. Thank You!