A terrific piece by Jill Lepore about the Magna Carta that appears in the latest issue of The New Yorker traces that charter’s contribution – both real and imagined – to the advent of the rule of law and leaves me reflecting on the idea of due process in the wake of shootings of unarmed black men by police in North Charleston, Ferguson and elsewhere.
Due process underpins constitutional law and, as Lepore notes, has factored heavily into U.S. Supreme Court decisions ranging from Roe v. Wade, the 1973 ruling that affirmed a woman’s right to terminate her pregnancy by abortion, and Lawrence v. Texas, a 2003 ruling that struck down state laws against sodomy.
But the idea of due process has been on display more recently in connection with the fatal shooting of Walter Scott by a police officer in North Charleston, South Carolina and the killing of Michael Brown by a police officer in Ferguson, Missouri last August.
As Lepore, a professor of American History at Harvard, recounts, the Magna Carta was sealed by King John in Runnymede, a meadow along the Thames about 23 miles southwest of London, 800 years ago this May. The King was there to meet with barons who had rebelled against his despotic rule, which included levying taxes higher than any monarch had before and holding hostage the sons of noblemen who fell into debt.
The barons presented the King with a series of demands, including one that read, in relevant part, “No free man is to be arrested or imprisoned…save by the lawful judgment of his peers or by the law of the land.”
Over the centuries, the Magna Carta has come to be viewed by as a bedrock of liberties, even if, as Lepore explains, the reality is that the charter “is on occasion, taken out of the closet, dusted off, and put on display to answer a need.”
Still, Lepore notes, “Such needs are generally political. They are very often profound.”
One of those needs has been the development of due process, or the idea that before taking a citizen’s life, liberty or property the state must follow fair procedures.
Dispossession factors heavily into land and property, of course. With his powers unchecked, the King could seize someone’s estate for any reason. But dispossession also factors into life and liberty, as in, the state has dispossessed you of your liberty, or your life, without due process. The Fifth Amendment of the U.S. Constitution provides, in relevant part:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a grand jury…nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself nor be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
The Fifth Amendment, together with the 14th Amendment, which applies the Bill of Rights to the states, reflects, as Lepore explains, “a revision of the twenty-ninth Article of the Barons,” which had been adopted by a series of states both before and after 1868, when the 14th Amendment became law.
Fast forward to North Charleston, where Scott, a 50-year-old black man, was shot and killed by Patrolman Michael Slager, a 33-year-old white police officer, following a traffic stop on April 5. Slager was charged with murder after a cellphone video showed him shooting Scott eight times in the back as Scott ran away.
During the week that ensued, supporters of Scott and his family rallied against racial injustice although they praised the rapid response by law enforcement in the matter. In a statement, Reverenced Jesse Jackson, addressed due process:
The punishment for traffic violation is not death. Police officers are sworn to serve and protect…not to act as judge and jury in the street…We should also release internal affairs records of proven police misconduct and reform tort laws to make it easier to obtain civil judgments against cities that retain officers known to violate citizens’ right to due process and equal protection under the law.
Similarly, The St. Louis Post-Dispatch, two days after the fatal shooting of Michael Brown in Ferguson last August, editorialized:
“Michael Brown didn’t get due process. The still unnamed police officer who shot the 18-year-old black teenager dead in Ferguson will get plenty of it. This is the root of the frustration that is driving the African-American community to the streets in north St. Louis County over yet another senseless killing of a young black man.”
As it turned out, a lack of due process factored heavily into the fatal shooting of Michael Brown but in ways that may be less apparent than the encounter between Brown and Officer Darren Wilson that ended in Brown’s death suggests. According to the Department of Justice, the City of Ferguson’s focus on generating revenue via its courts led to a pattern of unconstitutional policing and procedures that disproportionately harm African-Americans and undermine public safety.
“The large number of municipal court requirements being issued, many of which lead to arrest, raises significant due process and equal protection concerns,” DOJ found in a report published in March, quoting from decisions by the U.S. Supreme Court in several cases. “In particular, Ferguson’s practice of automatically treating a missed payment as a failure to appear – thus triggering an arrest warrant and possible incarceration – is directly at odds with well-established law that prohibits ‘punishing a person for his poverty.’”
Of course, the use of force by police officers in the absence of behavior that doesn’t pose a threat also contravenes due process. “Officers often use force in response to behavior that may be annoying or distasteful but does not pose a threat,” DOJ writes, quoting from a 2002 ruling by the U.S. Court of Appeals for the 9th Circuit. (“The Due Process clause protects pretrial detainees from the use of excessive force that amounts to punishment.”)
What’s more, the idea of due process extends to protestors. Writing in Slate, Dalia Lithwick and Daria Roithmayr noted that mass arrests of protestors who assembled last summer in Ferguson violated more than their rights to freedom of speech and assembly guaranteed by the First Amendment.
“We’ve seen very little coverage of the use of tear gas and rubber bullets as constitutional violations,” wrote Lithwick and Roithmayr (emphasis in original). “But the due process clause bans the police from using excessive force even when they are within their rights to control a crowd or arrest a suspect.”
As Lepore observes and as the protests in North Charleston, Ferguson, New York City and elsewhere remind us, the conception of due process may have a foundation in the Magna Carta but that doesn’t mean it was cemented there. Lepore notes the contradiction between the Supreme Court’s citing the Magna Carta in a 2008 ruling finding that detainees at Guantanamo Bay had been imprisoned unlawfully and the reality today in the U.S., where one in every hundred and ten people is behind bars.
“Due process is a bulwark against injustice but it wasn’t put in place in 1215,” concludes Lepore. “It is a wall built stone by stone, defended, and attacked, year after year.” The deaths of Scott, Brown and others demonstrate as much.
