@ b98139a6:eb269255

I’m exhausted from the endless OP_RETURN vs. Core infighting… so I figured I’d relax with the nice, calm, debate about Due Process. 😉

Okay, sure—this topic is every bit as heated in legal circles as block sizes and fork wars are in Bitcoin. But for a Bitcoin-savvy, intellectually curious audience, the current political battle over Due Process is worth diving into. Let’s explore how the U.S. Constitution phrases different rights (who exactly gets them), and why “due process” isn’t a one-size-fits-all procedure.

(This is partly an explainer, and partly a discussion prompt. I am sure that I will have some pushback, especially from other attorneys. That's cool! Reasonable people can disagree on even contentious topics like ultimate grant of rights to noncitizens. Maybe even OP_RETURN!)

“The People” vs. “No Person” – Who Gets What Rights?

One of the first points of confusion in constitutional law is that not all rights are phrased the same way. Some rights are granted to “the people,” while others protect “persons” or “the accused.” These aren’t just linguistic quirks – they signal which groups are protected (citizens or everyone). Let’s break it down:

• Rights of “the People”: Several amendments (like the 1st, 2nd, and 4th) explicitly mention “the people.” For example, the Second Amendment says “the right of the people to keep and bear arms” and the Fourth Amendment protects “the right of the people to be secure… against unreasonable searches and seizures.” The Supreme Court has noted that “the people” refers to those within the national community of the United States. In plain terms, this implies these rights are geared toward citizens and others with a strong connection to the U.S. (In a 1990 case, Chief Justice Rehnquist suggested that “the people” who enjoy 1st, 2nd, and 4th Amendment rights are those “who are part of a national community or who have otherwise developed sufficient connection with this country”. See United States v. Verdugo-Urquidez, 494 U.S. 259 (1990).) In other words, if you’re not part of “We the People” (say, a foreigner with no ties), those particular rights may not fully extend to you.

• Rights of “Persons”: Other rights use broad language like “no person shall…” – notably, the Fifth Amendment’s due process clause. It doesn’t say “no citizen” – it says “no person shall be deprived of life, liberty, or property without due process of law.” This wording was very intentional. It means any person under U.S. jurisdiction is owed due process, regardless of citizenship status. The same goes for the Fifth Amendment’s protection against self-incrimination and double jeopardy – it protects “persons.” So even if someone isn’t a U.S. citizen, if the U.S. government is trying to lock them up or take something from them, the Constitution demands some form of fair procedure. (As one legal expert dryly noted in response to a political slogan, the Constitution “does not make any distinction between citizens and noncitizens” when it comes to due process.)

• Rights of “the Accused”: The Sixth Amendment speaks of “the accused” – “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury,” and so on. This applies to anyone who finds themselves prosecuted under U.S. criminal law. Citizen or not, if you’re charged with a crime in a U.S. court, you are “the accused” and you get those Sixth Amendment rights. There’s no citizenship test for the right to a lawyer, a jury, etc.

• The 14th Amendment – Citizens and Persons: After the Civil War, the 14th Amendment was adopted, and it cleverly uses both terms. First it says “All persons born or naturalized in the U.S. … are citizens.” That defines citizenship. But then it says “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.” Here we see “any person” again. This was a big statement: the 14th Amendment explicitly is not limited to citizens in its protections of due process and equal protection. The Supreme Court recognized way back in 1886 that these provisions are “universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, color, or nationality.” In practical terms, this means a foreign student, an undocumented immigrant, or a tourist on U.S. soil is a “person” under the 14th Amendment and thus is owed due process and equal protection by any state or local government. (However, the 14th’s “privileges or immunities” clause does specifically protect “citizens” – things like the right to travel between states, etc. – highlighting that some rights were meant for citizens only, while core concepts of due process apply to everyone.)

In summary, the Constitution carefully differentiates who it’s talking about. “The people” usually means the American people (members of the national community), whereas “no person” means literally any person (citizen or not) under U.S. authority. So, next time someone claims “Hey, non-citizens aren’t protected by the Constitution!”, you can politely point out that the text says otherwise in many places. The Founders and those who amended the Constitution knew exactly what they were doing with those words.

Due Process ≠ One-Size-Fits-All (Article III Courts vs. Article II Courts)

Now let’s tackle the second big point: Due Process. We often hear the term thrown around (sometimes in heated Twitter debates as much as in courtrooms). But due process isn’t a monolith – the kind of “process” someone is “due” can vary a lot depending on the situation. Think of it as a sliding scale: the more serious the deprivation of your rights, the more robust the process the government must give you.

In the U.S., this plays out by having different types of courts and procedures for different matters. Let’s contrast two extremes:

• Criminal Prosecutions (Article III courts): These are the trials for serious offenses. They take place in Article III courts, meaning the normal judiciary with independent judges (appointed for life under Article III of the Constitution). Here, due process is at its most robust. If the government wants to put someone in jail (or even take their life in capital cases), it must jump through many hoops: a formal indictment, the right to an attorney, a public jury trial, proof beyond a reasonable doubt, etc. The Constitution spells out many of these protections in the 5th and 6th Amendments (grand jury indictment, no double jeopardy, speedy trial, impartial jury, right to counsel, etc.). These safeguards apply to “the accused” in criminal cases – which, as we noted, means anyone accused, citizen or not. The idea is that when the stakes are highest (your liberty or life on the line), the procedural protections are strongest. It’s the legal equivalent of Bitcoin’s full nodes rigorously verifying every block – no shortcuts allowed when something so valuable is at stake.

• Immigration/Deportation Proceedings (Article II courts): On the other end, consider the process for deporting someone for violating immigration laws. Surprisingly to many, removal/deportation cases don’t happen in the regular courts at all – they happen in administrative tribunals under the Executive Branch. Since 1983, immigration courts have been housed in the Department of Justice (under the Attorney General), making them what are called “Article II courts,” operating under the authority of the President. The officials who preside are immigration judges, but they are not Article III judges – they’re essentially DOJ employees. And because deportation is classified as a civil matter, not a criminal one, the due process requirements are different (and more limited).

Why are they more limited? By law, deportation is not considered a “punishment” for a crime – it’s civil and administrative. See Wong Wing v. United States 163 U.S. 228 (1896). The Supreme Court has said for over a century that removing an undocumented or removable alien is just the government enforcing immigration policy, “not a punishment for crime.” It’s akin to revoking someone’s permission to remain in the country, rather than convicting them of a criminal offense. Because it’s not punishment, many of the constitutional protections that apply in criminal cases don’t apply in deportation proceedings. There’s no jury trial in immigration court, no requirement of proof beyond a reasonable doubt (the government usually just needs “clear and convincing” evidence of removability), and the government doesn’t have to provide a free lawyer if you can’t afford one. In fact, the Supreme Court explicitly noted that things like the right to a jury and the ban on “cruel and unusual punishments” “have no application” in deportation cases.

This doesn’t mean immigrants have zero rights – due process still applies, just in a more basic form. Typically, due process in deportation means the right to notice of the charges and a fair hearing before a neutral adjudicator. You get to appear before an immigration judge, present evidence, and argue your case (for example, that you have legal status, or that you qualify for asylum, etc.). The government can’t just pick you up and secretly put you on a plane without any procedure at all (except in certain very narrow scenarios like expedited removal at the border, which still involves at least an interview). But the level of process is much less elaborate than in a criminal court. It’s the difference between a quick SPV node verification and a full node verification – the former is “lighter” and leaves more room for error.

And errors do happen, which is why this debate is fierce. Immigration judges handle hundreds of thousands of cases and sometimes people with rights do slip through the cracks. There have been cases of U.S. citizens mistakenly detained or nearly deported because the system is under strain and shortcuts get taken. That’s why critics argue that even if deportation isn’t “punitive,” it sure feels like punishment to the people on the receiving end. The Supreme Court itself has acknowledged that being deported can be devastating – in one case, the Court noted deportation may result in “the loss of all that makes life worth living.” Bridges v. Wixon, 326 U.S. 135 (1945), see also Ng Fung Ho v. White, 259 U.S. 276 (1922). Despite this harsh reality, the legal doctrine remains that it’s not punishment in the criminal sense. Wong Wing v. United States (163 U.S. 228, 1896).

To sum up, “Due Process” comes in levels: at minimum, it means fundamental fairness – the government can’t just do stuff to you arbitrarily without some procedure. But what procedure is due depends on context. If you’re a citizen facing a criminal charge, due process is maximal – you get the full panoply of rights in an Article III court. If you’re a non-citizen facing deportation, due process still applies, but in a limited, civil proceeding way – an Article II tribunal where the process is streamlined. The law draws this line because of the formal distinction that deportation = civil remedy, not criminal punishment. Or as one official recently put it (to much controversy): “the judicial process is for Americans. Immediate deportation is for illegal aliens.” (Many lawyers and judges vehemently disagree with that phrasing, citing the Fifth Amendment’s “no person” language, but it captures the attitude that immigration proceedings are a separate track.)

originally posted at https://stacker.news/items/972420