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By Root 758 0

those procedural requirements which are most essential for the protection of individual liberties and their origins in the Natural Law. We can think of due process as those procedures which government must follow before life, liberty, or property can be taken away by law. Although we typically think of these as juries, neutral judges, and warrant requirements, there are other procedures which government must follow as well. For example, no one can be deprived of liberty by an ex post facto law, that is, a law that was passed after the commission of the act which it condemns. In such a case, the law itself, rather than just its application to a particular case, violates due process.

There are two components to due process: Requirements which ensure that the essence of a law is just, and can therefore be called legitimate (called substantive due process), and procedures which ensure that the application of a law is just (called procedural due process). As we shall see, it is the Natural Law which is the source of these substantive and procedural constraints on government. Moreover, in no other area of law has the Natural Law played a more important role; the Due Process Clauses of the Fifth and Fourteenth Amendments have been, as noted by the late UCLA professor, Charles Grove Haines, “the main provision[s] through which natural law theories were made a part of current constitutional law.” Although due process may at times seem abstract and removed from the realities of our modern world, such as terrorism and immigration, as we shall see, its subversion is the single biggest threat to our natural rights today.

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“Laws Must Be Fair to Be Just and Enforceable”

It should be clear from the hypothetical above that certain fundamental principles are necessary in order to protect all of those substantive rights discussed elsewhere in this book. However, before we discuss what those protections are, it is necessary to examine how they are derived from the Natural Law. The need for due process arises out of the fact that there are circumstances where the government can, and should, lawfully deprive the people of their liberty. After all, if one does harm to another, that is, “an intentional physical invasion or aggression of another person’s body or rights or property,” then, under those limited circumstances, the government is right in prosecuting that individual.

This is known as the concept of “waiver” of rights: The thief or invader, by his theft or aggression, waives the permanency and inalienability of his natural rights by violating the natural rights of another. As stated elsewhere, my right to swing my arms ends several inches from your nose. Beyond these “contours” (i.e., on your side of your nose), I voluntarily surrender possession of those rights. In this sense, the government can never deprive one of his rights to life, liberty, and property; when the government prosecutes a genuinely guilty individual, these rights were already waived by him, and him alone. Although this may sound abstract, it is simply an application of the principle of personal responsibility. Only you can waive your rights.

The specific problem highlighted by the hypothetical at the beginning of this chapter is that the government can use this power to prosecute improperly, punishing the wrong individuals and thereby eviscerating any meaningful protection of substantive rights. In short, there must also be some scheme of procedural constraints which ensures that our natural rights are actually enforced, and liberty is only deprived when its possessor has given it up.

There are several ways in which due process is based in the Natural Law. First, due process is comprised of those principles of justice prescribed by the Natural Law itself. Could anyone doubt that there is a fundamental human yearning to be treated fairly and justly under the law? Why else is it that we are outraged at the punishment of the obviously innocent, or government theft of property, or any government classifications based on an immutable characteristic inherited at