Due Process - revisited, reconsidered

By Peter d'Errico, Professor Emeritus, Legal Studies Department, University of Massachusetts, Amherst

[Written after a judge denied a prisoner's motion to hold the department of corrections in contempt for denying the terms of a court-ordered agreement to respect Native American Indian religious freedom in prison. Published in Indian Country Today "Native Currents," 16 February 2007]

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Many years ago, I wrote that due process is a sham. I believed it then, and had enough experience with lawyering for Navajos in white man's courts to know it was true: There's a lie at the core of law, that says the law is for everyone, rich or poor, great or small.

Blindfolded justice, they say, is a symbol of law's equality: She cannot see who is before her, and must make decisions based on what is in her mind's eye— looking at the law and listening to the facts. But that's not what the blindfold does. Instead of protecting her from her own potential bias, the blindfold on justice prevents her from seeing through the scheme of due process to the scam of judicial behavior.

For years after my Navajo lawyering, I put my faith in political process and popular uprising. I looked to the streets, the newspapers, and the schools to provide a sense of—a demand for—justice, equality, and righteousness. I looked to direct action in the "marketplace of ideas" in the press, in the classroom, and in the halls of people's institutions. I counted on a shared appreciation for democratic values and enlightened self-interest.

Years passed, again, and many political disasters transpired: evil presidents, corrupt legislators, bad governors— even universities became oblivious to injustice and equality, and chased after grants, greedy for social status. It became enough to make an honest person throw up hands in despair.

Long after abandoning my earlier understanding of law as fairness, I found myself once again embracing due process: in the face of fascism, where everything, and everyone, becomes fodder for grandiose delusions of forced utopian futures, where the future becomes an excuse for terror in the present, where every official becomes a czar— in this context, I revisited my view of due process, and revised my criticism of E. P. Thompson's assertion that the rule of law is an "unqualified good." The rule of law, I decided— the opportunity to make a stand, to have "a day in court"— certainly looks like "an unqualified good" when we see the alternatives.

For a few brief moments, I tried to put my faith again in judicial process. What else, I thought, have we got? In those brief moments, I filed briefs.

Now, I find, the latest evidence from courts, nearby and far, in cases where freedom and rights are at stake, shows me, again, that the law "has nothing to do with justice."

I rummage in the closets of my mind and on the backburners of my heart, finding meaning and purpose in things I had put aside to make a career: My own writing, whether or not published; my own music, whether or not proficient; taking care of things, and friends; walking, being myself. I put my faith, hope, and effort there, here, today.

As a people and a species, we may, some of us, give our best, and sometimes our all, to make law meaningful as a check on power; but the reality of law and society shows us, over and over, that the only real meaning in all this giving is the giving. There is no getting from law. To say, with Dickens, "the law is a ass," maligns the ass.

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