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By Root 694 0

birth? Take public school segregation. Just because separate treatment might be technically equal, we nonetheless recognize the manifest injustice in a scheme of forced segregation. After all, it is a central precept of the Natural Law that all humans are to be treated the same, since no temporal being could be treated as “higher” than another; the Natural Law commands that the government and its laws be applied fairly and justly to all, and devoid of any racial classifications whatsoever. Thus, we can say that there is a procedural requirement, dictated by the Natural Law, that politicians and judges draft and apply the law to individuals in a fair manner. In this sense, a procedural right to be treated fairly under the law is not only a protection of other natural rights, but also is its own fundamental right implicit in the natural order of things.

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To cite an example of the natural right to be treated fairly, why is it that the government is prohibited from passing an ex post facto law? This is clearly not an outgrowth of another substantive right, such as a right to property. By contrast, it should be clear that as a matter of principle and without more, it is manifestly unfair to punish someone for behavior that wasn’t a crime when he engaged in that behavior. In other words, an ex post facto law does not need actually to deprive you of property or liberty before it can be considered unfair, and thus in violation of fundamental human yearnings; it is a per se transgression of the Natural Law. Stated differently, its wrongness is self-evident.

This notion that the Due Process Clause of the Constitution imposes unenumerated principles of fairness and justice on all branches of government has been adopted by the Supreme Court; specifically, the federal government via the Fifth Amendment and the state governments via the Fourteenth Amendment. For example, when deciding if a state court can hear a dispute involving a particular defendant, it must be shown that he has personal dealings with that State, such that requiring him to defend himself there “does not offend traditional notions of fair play and substantial justice.” Otherwise, a plaintiff could sue you in a faraway State, and force you to settle simply because the cost of defending yourself there could be greater than what the plaintiff is seeking. Thus, the Supreme Court itself has recognized that the Due Process Clause imposes a requirement of fairness and justice in how laws are applied.

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Second, due process comprises those implied procedures which are necessary to protect our immutable natural rights (and other political rights guaranteed by the Constitution) from unwarranted encroachments. In this sense, when we enter into the social contract with government for the protection of our natural rights, there are certain procedures implied in the contract which ensure that the government will execute that duty with good faith. As an example, juries and burdens of proof ensure that if someone is found guilty, then it is an accurate finding and therefore genuinely just to deprive him of his freedoms by imprisoning him. By contrast, without these procedures we could have no assurance that deprivations of liberty are in fact just, and there would be no such thing as a government which respects natural rights; judges could determine guilt by flipping a coin, or worse, on the basis of the defendant’s race or political ideology.

In thinking about how rules of procedure can be implied by the need to protect our natural rights, it is helpful to think of a rule deemed so fundamental that we often forget its existence: The accused is innocent until proven guilty. As a purely practical matter, our natural rights would be meaningless if we could only avoid their deprivation by “proving otherwise.” First, in many, if not most, cases there will be a lack of clear and convincing evidence that we did not in fact commit a crime. Thus if we could not prove via security camera footage that we were at home on Friday at 11:00 p.m. instead of at the scene of the crime, then