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I Can't Fathom Being a Citizen of the US and not Know What Due Process is
By oldedude
December 23, 2023 12:07 pm
Category: Law

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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. Most of this article concerns that promise.

The clause also promises that before depriving a citizen of life, liberty or property, the government must follow fair procedures. Thus, it is not always enough for the government just to act in accordance with whatever law there may happen to be. Citizens may also be entitled to have the government observe or offer fair procedures, whether or not those procedures have been provided for in the law on the basis of which it is acting. Action denying the process that is “due” would be unconstitutional.

Suppose, for example, state law gives students a right to a public education but doesn't say anything about discipline. Before the state could take that right away from a student, by expelling her for misbehavior, it would have to provide fair procedures, i.e. “due process.”



In this case, we are talking about Procedural Due Process
Procedural due process

Procedural due process refers to the constitutional requirement that when the federal government acts in such a way that denies a citizen of a life, liberty, or property interest, the person must be given notice, the opportunity to be heard, and a decision by a neutral decision-maker.

Procedural due process is one of two of the components of due process, with the other being substantive due process.

Due Process Clause
In the U.S. Constitution, the phrase "due process" appears twice: in the Fifth Amendment and in the Fourteenth Amendment. Both Amendments guarantee due process when someone is denied "life, liberty, or property."

Possibly Guaranteed Procedures
Judge Henry Friendly, in this article titled "Some Kind of Hearing," created a list of required procedures that due process requires. While this list is not mandatory, it remains highly influential, both in its content and relative priority of each item.

An unbiased tribunal.
Notice of the proposed action and the grounds asserted for it.
Opportunity to present reasons why the proposed action should not be taken.
The right to present evidence, including the right to call witnesses.
The right to know opposing evidence.
The right to cross-examine adverse witnesses.
A decision based exclusively on the evidence presented.
Opportunity to be represented by counsel.
Requirement that the tribunal prepare a record of the evidence presented.
Requirement that the tribunal prepare written findings of fact and reasons for its decision.


Cited and related links:

  1. law.cornell.edu
  2. law.cornell.edu

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Comments on "I Can't Fathom Being a Citizen of the US and not Know What Due Process is":

  1. by Curt_Anderson on December 23, 2023 1:14 pm
    OD,
    I don't think you know what due process is.

    You complain that Joe Biden has not been charged, prosecuted, impeached, convicted and imprisoned. You insist that Joe Biden is corrupt even though after five years of Republican-led investigations they have not come up with any crimes committed by Joe Biden.

    You bemoan that Trump is being "treated unfairly" by the courts and prosecutors, when in reality, anybody else accused of any of Trump's crimes would have already faced justice. Nobody has skirted and abused the judicial system like Donald Trump.

    Due process is simply fair treatment through the normal judicial system.





  2. by HatetheSwamp on December 23, 2023 1:26 pm

    I don't think you know what due process is.

    You complain that Joe Biden has not been charged, prosecuted, impeached, convicted and imprisoned.


    Curt,

    No one here thinks any of those things about "that feckless dementia-ridden piece of crap."

    OD and pb have been consistent in noting that there's adequate evidence to justify the impeachment inquiry the GOPs are undertaking.

    And, certainly, neither of us would want his constitutional rights to be violated.

    You bemoan that Trump is being "treated unfairly" by the courts and prosecutors, when in reality, anybody else accused of any of Trump's crimes would have already faced justice.

    Bullfernerner.

    One key fact that pb's Legal Goobers have been making since the Supreme Court denied Jack Smith's motion is that the DOJ waited until forever to bring charges against Trump and now there's serious possibility that the trials won't happen before the election.

    That's not Trump's fault.


  3. by Curt_Anderson on December 23, 2023 1:57 pm
    "OD and pb have been consistent in noting that there's adequate evidence to justify the impeachment inquiry the GOPs are undertaking." ---HtS

    Really? What evidence is there that Joe Biden while president committed treason, bribery, or other high crimes and misdemeanors?

    Trump has one go-to legal strategy: delay. I doubt that there has been another recidivist who has obstructed and forestalled justice more often than Donald Trump.


  4. by oldedude on December 23, 2023 2:49 pm
    I don't think you know what due process is.

    You complain that Joe Biden has not been charged, prosecuted, impeached, convicted and imprisoned. You insist that Joe Biden is corrupt even though after five years of Republican-led investigations they have not come up with any crimes committed by Joe Biden.


    Oh, I do! Both statements are stupid and inane. Like I've said.

    But if YOU believe it is true for trumpster, then it MUST be true for pedojoe. Which I've also said. If ONE is false, the other MUST, by definition, also be false. But I guess that's only true for people that actually believe in supporting the Constitution of the US.

    If you don't believe it, chalk yourselves up to being part of those that wipe their butts with the constitution.


  5. by oldedude on December 23, 2023 3:03 pm
    Trump has one go-to legal strategy: delay. I doubt that there has been another recidivist who has obstructed and forestalled justice more often than Donald Trump.

    I agree that's a PITA, but show me where that's illegal. It all comes down to being legal or not.

    It isn't about how you "feel" or what your heart tells you, or how much of a little hitler you are.

    The sheep are no better than Putin who "refused" to accept an opposition party presidential candidate... Sound familiar?

    Pro-peace Russian presidential hopeful is blocked by the election commission
    Russian politician Yekaterina Duntsova hit a roadblock in her presidential campaign Saturday, when Russia’s Central Election Commission refused to accept her initial nomination by a group of supporters, citing errors in the documents submitted.

    MOSCOW -- A Russian politician calling for peace in Ukraine hit a roadblock in her campaign Saturday, when Russia’s Central Election Commission refused to accept her initial nomination by a group of supporters, citing errors in the documents submitted.

    Former legislator Yekaterina Duntsova is calling for peace in Ukraine and hopes to challenge President Vladimir Putin, promoting her vision of a “humane” Russia “that’s peaceful, friendly and ready to cooperate with everyone on the principle of respect.”

    abcnews.go.com


  6. by Curt_Anderson on December 23, 2023 5:00 pm
    OD,
    I never said it was "illegal" for Trump to use every delaying tactic ever conceived by shysters. I know you "feel" that I did.

    What I said about due process is that it should be fair treatment through the normal judicial system. Is it fair that millionaires and billionaires avoid prosecution and convictions while the rest of us if we had done the same would spend time in jail? That is not fair. There is nothing normal about the fact that the 1970s until he was elected president in 2016, Donald Trump and his businesses were involved in over 4,000 legal cases in U.S. federal and state courts, including battles with casino patrons, million-dollar real estate lawsuits, personal defamation lawsuits, and over 100 business tax disputes. Add to that 91 felony charges he's racked up since being president and the lawsuits that were put on hold for four years. That is NOT normal.

    Trump actually bragged about stiffing his suppliers and contractors in a presidential debate. It doesn't matter if these blue collar workers fulfilled their end of the bargain or not. They cannot afford the legal expenses to extract from Trump all the money he contractually owed them when he drags out those lawsuits. That is not fair.
    finance.yahoo.com


  7. by oldedude on December 24, 2023 7:08 am
    I find it funny that in your hatred for trumpster, you all of a sudden become the beacon of light for the working class. Normally you don't give a flying f* about them. I guess if I had that much dogma and hatred, I might be the same.


  8. by HatetheSwamp on December 24, 2023 7:13 am

    OD,

    As you know, neither you nor I support Trump, and I guess that you may be as amused as am I with the silly irrationality of TDS. I don't Trump to go away because I can't stop laughing at what TrumpHate does to some people. Baha haha!


  9. by Indy! on December 24, 2023 10:27 am


    OD's example actually works just as well the other way...

    Trump delaying and deferring justice based on technicalities and legal loopholes...

    ...is basically the same exact thing as...

    Putin rejecting a qualified candidate based on some (alleged) "errors" in her documents.

    If I were to go a step further and use OD's... ahem... "standard" for "proof" - I could now designate him a Putin supporter and by extension of his support for a brutal dictator - also a "terrorist" who is fine with murdering innocent Ukrainians.



  10. by HatetheSwamp on December 24, 2023 10:52 am

    Indy,

    As much as you hate may it, the Bill of Rights applies to all citizens. Don't shame yourself by going po on us.


  11. by Indy! on December 24, 2023 1:16 pm

    No idea where that applies to anything I said, peebs.



  12. by oldedude on December 24, 2023 2:02 pm
    I'm still wondering where the hell your comment came from?😕 Another deflect and joke is all ya got.🤣


  13. by Ponderer on December 24, 2023 6:39 pm

    Bravo, Curt. Perfect encapsulation.

    After all that has been known about his business practices for many decades now, broken contract after broken contract with average working people who he uses like toilet paper... For any American voter to actually believe for a second that he gives a flying rat's ass about them beyond their mark for him in the voting booth simply flabbergasts me.

    I believe that he is actually the most successful con man in the history of civilization. And his marks are actually the world's most gullible. As they would have to be for him to be so successful at it.




  14. by oldedude on December 24, 2023 10:33 pm
    po. I'm not disagreeing. And my personal opinion is not worth squat in a court. As I have said before, I want him out. I disagree with the method. If it's illegal, it's wrong. What he is doing is "legal" maybe not ethical, but legal. That's my question that has existed. The dims "knew" he would do this, so why didn't they prep for that? It seems stupid they didn't.


  15. by Ponderer on December 25, 2023 7:31 am

    The Democrats aren't controlling any of the trials, od. They don't control the Justice department. What is it that you think they could have started earlier? I'm not sure what you are talking about.



  16. by oldedude on December 25, 2023 10:10 am
    Every one of the "trials" are being prosecuted by far lefty DAs. trumpster haters. Had the dims been able to pull off the "investigation" in the house, they would have been able to hand these DAs all the information they needed. If these DAs actually had cases, they should have been started the minute he got out of the Whitehouse. Even Smith couldn't figure out what to charge him with since you must have a charge that can stand up in court. Everyone says here they "saw" or "heard" trumpster commit crimes. And yet, not one of those "crimes" have made it to court. That makes me think nothing that you, or isle, or curt, or the others that "say" they saw or heard a crime actually know what that is.


  17. by Curt_Anderson on December 25, 2023 10:24 am
    “ Everyone says here they "saw" or "heard" trumpster commit crimes. And yet, not one of those "crimes" have made it to court.” —-OD

    How do you figure? We all heard Donald Trump’s phone call to Secretary of State Raffensperger pressuring him to change the votes in Georgia. That is being used as evidence in two election interference cases: the federal case and the Georgia case. We saw the classified documents piled up at Mar-a-Lago in his bathroom and elsewhere. That’s being used as evidence in the classified documents case. We all heard and saw President Trump in his deposition, incriminate himself in the E. Jean Carroll defamation case.

    For a lot of Donald Trump‘s alleged crimes he isn’t denying them. He’s claiming that he either had the right to do it or has presidential immunity from prosecution.


  18. by Ponderer on December 25, 2023 12:21 pm

    "Every one of the "trials" are being prosecuted by far lefty DAs. trumpster haters." -olde dude

    Well that's asinine. But... If they were all far right authoritarian Republican Trump dick-suckers, they'd simply let him go scot-free with their apologies for having inconvenienced him in any way at all. You think that would be justice for the crimes he has committed?

    You should have some faith in Jack Smith. He's extremely experienced with these sort of corruption, Mafia-type crimes. He knows what he's doing.


  19. by oldedude on December 25, 2023 8:45 pm
    But... If they were all far right authoritarian Republican Trump dick-suckers, they'd simply let him go scot-free with their apologies for having inconvenienced him in any way at all. You think that would be justice for the crimes he has committed?
    If they were violating the Constitution of the US, I would rally (with you) against them. I don't have any qualms in looking at violations on all sides. I know you find that impossible, but it's true. The only thing I ask for is to follow the law as it's written.

    You should have some faith in Jack Smith. He's extremely experienced with these sort of corruption, Mafia-type crimes. He knows what he's doing.
    I don't really. He demanded SCOTUS to look at a case where he won the case. WTF? Why would you do that? It doesn't make any sense at all. You file an appeal because YOU LOST in a lower court. He didn't. That's a rookie (I mean a pre-law student) mistake. Maybe going back to high school.


  20. by Curt_Anderson on December 25, 2023 9:41 pm
    OD,
    I suppose you are talking about the federal election interference case against Trump. Jack Smith hasn't won anything yet. He had a favorable ruling. He didn't appeal anything. It was just a request to expedite the Supreme Court's ruling on Trump's appeal of Judge Chutkan's immunity ruling.

    It was one of those "nothing ventured, nothing gained" situations. He is no worse off by SCOTUS's refusal to hurry up. SCOTUS didn't rule in Trump's favor on immunity. It might even put pressure on the appeals court to render a quicker decision.


  21. by oldedude on December 26, 2023 5:38 am
    You realize you just double-talked yourself into agreeing with me.

    I suppose you are talking about the federal election interference case against Trump. Jack Smith hasn't won anything yet. He had a favorable ruling. He didn't appeal anything. It was just a request to expedite the Supreme Court's ruling on Trump's appeal of Judge Chutkan's immunity ruling.

    "He had a "favorable ruling."= He won in the appellate court.🙄
    No matter how you want to shift it and try to make it appear different, there's no legal necessity in SCOTUS expediting the ruling from his perspective. Maybe from trumpsters perspective, but they didn't ask.


  22. by Ponderer on December 26, 2023 6:20 am

    olde dude just doesn't get it, Curt. I'm afraid that you're pissing up a rope trying to get him to understand what Smith is doing and why.


  23. by oldedude on December 26, 2023 7:55 am
    I actually understand what he is doing. He's trying to push the case forward so trumpster can't run. That's why the dims should have started two years ago. Now they're under a time crunch and limited themselves.


  24. by HatetheSwamp on December 26, 2023 8:01 am

    po,

    With your background as a Supreme Court clerk and a current Ivy League law school professor, it's tragic, actually, that people don't take your posts as Holy Writ.

    Technically Curt's right but, in reality, OD's bang on. Smith prevailed in court but took the rare step of seeking an appealed ruling by the Supreme Court... in an attempt to get the DC trial under way in March... so he could have his most likely conviction in hand looooooooong before the November election.

    Clever more. Creative. Nuthin ventured, nuthin gained.

    And, as it turns out, nuthin gained.


  25. by Ponderer on December 26, 2023 9:27 am

    "I actually understand what he is doing. He's trying to push the case forward so trumpster can't run. That's why the dims should have started two years ago. Now they're under a time crunch and limited themselves." -olde dude

    Again, started what two years ago???

    The Democrats had huge detailed congressional hearings where they uncovered and piled up mountains of evidence of crimes he committed against him and it was all made available for any prosecutors who had a mind to take the case. Which they eventually did. What were the Democrats supposed to do? Camp outside the Justice Department and protest until they took up the case? They don't control the Justice system, od. They aren't authoritarian fuckwads like Donald Trump. The Justice Department is under no compulsion to work with political party schedules.

    But Smith totally recognizes the massive importance and significance of these cases. They are unprecedented because we have never had a career felon committing felonies as president in broad daylight like this before.

    He is trying to push this case forward to get a verdict before the election. Sure. There is absolutely nothing wrong with that whatsoever. If a political candidate is in the process of being tried for felonies, don't you think that it would be good for the voting public to know whether they are found guilty of them or not before they vote for them? I mean especially since if the eventually convicted candidate is elected and can essentially nullify any sentence of prison time?

    It's a definitive fact that Republicans don't give a flyingfuck about him being a convicted felon or not. You people will forgive him anything, overlook anything he does and even defend him for it. Many of your party members in Congress actually seem to think that him being such a scofflaw is hysterically funny and are even proud of him for it. The Republican party has become nothing a despicable bunch of pants-pissing coward enablers for his lawbreaking. Too terrified to speak the truth about him and losing their seats.

    But it might be somewhat important to other voters if they are voting to elect a felon to be president or not.


    So Kudos to Smith for giving it a go. At least he helped us see where the majority of the Supreme Court justices' duty lie. They've stepped in and made quick responses before for far less important issues. But something that might hurt The Donald??? It was certainly worth a shot. And they are going to hear it eventually at any rate.






  26. by Curt_Anderson on December 26, 2023 11:15 am
    "He had a "favorable ruling."= He won in the appellate court.🙄. —-OD

    Wrong. Trump appealed Judge Chutkan’s ruling. The appeals court has not yet ruled.

    Technically Curt's right but, in reality, OD's bang on.

    That’s another variation of Kellyanne Conway’s “alternate facts”. I am correct. OD is wrong. Period.


  27. by oldedude on December 26, 2023 3:27 pm
    So why does he want to skip all the appellate system?


  28. by Curt_Anderson on December 26, 2023 4:20 pm
    "So why does [Jack Smith] want to skip all the appellate system?" --OD

    Because he knows that Trump's appeals are nothing more than attempts to delay and possibly avoid justice. He also knows that the appeals court and the Supreme Court are unlikely to agree with Trump's contentions regarding presidential (and post-presidential) immunity. So he wanted the SCOTUS to make it official sooner rather than later.

    BTW, in the off-chance that SCOTUS did agree with Trump, they would be emasculating themselves. They would no longer be supreme. It would essentially be saying we are not worthy of hearing the case involving Donald Trump.


  29. by HatetheSwamp on December 27, 2023 4:44 am

    Because he knows that Trump's appeals are nothing more than attempts to delay and possibly avoid justice.

    Yikes. Curt, you're taking Good German-ism to new heights.

    So? A prosecutor thinks the accused's case is bogus!!!!!? Holy freakin cow! I don't think that's ever happened before! That the Supreme Court wouldn't agree, under those unusual circumstances. Stunning!

    Here's what pb's hearing from the Legal Goobers:

    Trump probably won't prevail on immunity, but there's a case to be made. Presidents are subject to being impeached for crimes... and, in fact, the House did impeach Trump twice. There's an argument that, to charge him criminally, amounts to a type of double jeopardy. There are weaker legal arguments. And, certainly, the Court is justified in requiring that the appellate process run its course.


  30. by Curt_Anderson on December 27, 2023 4:59 am
    Trump probably won't prevail on immunity, but there's a case to be made. —HtS
    Sure, Jeffrey Dahmer was able to present a case.

    Presidents are subject to being impeached for crimes... and, in fact, the House did impeach Trump twice. There's an argument that, to charge him criminally, amounts to a type of double jeopardy. There are weaker legal arguments. —HtS
    If there are we are weaker legal arguments, I can’t think of any. You have fed yourself that impeachment is a political trial not a criminal trial. For similar reasons, O.J. Simpson was found innocent in a criminal trial, but liable in a civil trial.

    And, certainly, the Court is justified in requiring that the appellate process run its course. —HtS
    There’s no disagreement there. But it was certainly within Jack Smith’s rights and even duty to at least ask. The Supreme Court politely declined. No harm no foul.


  31. by oldedude on December 27, 2023 5:03 am
    Because he knows that Trump's appeals are nothing more than attempts to delay and possibly avoid justice. He also knows that the appeals court and the Supreme Court are unlikely to agree with Trump's contentions regarding presidential (and post-presidential) immunity. So he wanted the SCOTUS to make it official sooner rather than later.
    I'll agree with the delay. I don't see trumpster getting immunity either. But the "right to a speedy trial" is the definition based on the defense, not prosecution.

    BTW, in the off-chance that SCOTUS did agree with Trump, they would be emasculating themselves. They would no longer be supreme. It would essentially be saying we are not worthy of hearing the case involving Donald Trump.
    And this is pure TDS, nothing more. Shoulda stopped while you were ahead.


  32. by HatetheSwamp on December 27, 2023 6:04 am

    Presidents are subject to being impeached for crimes... and, in fact, the House did impeach Trump twice. There's an argument that, to charge him criminally, amounts to a type of double jeopardy. There are weaker legal arguments. —HtS
    If there are we are weaker legal arguments, I can’t think of any. You have fed yourself that impeachment is a political trial not a criminal trial.


    Egads, Curt. So, are you, like po, a former Supreme Court clerk? I know, I know. Your law school professorship's at Stanford, not Harvard. Golly!

    I'm only noting what I'm hearing from pb's Legal Goobers. And, noting that they spect him not to prevail...

    ...but that it is an interesting Separation of Powers argument that the Court virtually has to allow, at the very least, go through all of the levels of appeal until it gets to the Court.

    That the intensity of your TrumpHate is increasing is obvious but the Bill of Rights applies to him, even if you think it should not.


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