“Due Process" is Constitutionally Guaranteed to Every "Person" Within the U.S.
- Donald V. Watkins
- 4 hours ago
- 4 min read
By: Donald V. Watkins
Copyrighted and Published on April 20, 2025
An Editorial Opinion
Under the Fifth Amendment to the U.S. Constitution, every person in America, whether a citizen or not, is entitled to due process of law before the government takes any action that deprives him/her of life, liberty, or property. At a minimum, due process consists of a formal notice of charges against the affected person and a meaning opportunity for this person to be heard in front of a neutral hearing officer.
Absent a knowing, voluntary, and intelligent waiver, this due process requirement is mandatory for every person located within the territorial boundaries of the U.S., no matter how the person arrived in the country and what misconduct he/she is accused of doing. There is no carveout in the Fifth Amendment's due process protections for non-citizens.
President Donald Trump seeks to ditch the due process requirement in connection with his mass round up of migrants and controversial deportation program. Trump is the first U.S. president since due process became law on December 15, 1791, who has aggressively fought a litany of court battles in his quest to ditch the Fifth Amendment’s due process protections for accused persons he disfavors.
Trump says the individuals he seeks to deport -- without due process hearings -- are dangerous criminals. According to Trump, they are gang members, rapists, human traffickers, murderers, drug dealers, and very violent people.
What Happened in America When Due Process was Ignored?
Between 1882 and 1968, 4,743 people were lynched in America because they were accused by politicians, community leaders, newspapers, and vigilantes of being murders and rapists, whether the accusations were true or not. These lynchings were viewed by the executioners as justifiable "street justice."
The stereotypical lynching in the American psyche is a hanging. Victims of lynchings were killed in a variety of other ways. Many were shot repeatedly; others were burned alive; some were forced to jump off bridges; some were dragged behind horse drawn buggies and cars, some were castrated and/or ripped apart by horses or cars pulling in opposite directions. Many times, the lynching victims were tortured before they were killed. Their body parts were often removed and sold as souvenirs.
The lynching victims were taken from their homes, or from local jail cells, or off the street and simply lynched.
We had a family member on the Varnado side of the Watkins family who was lynched on a false accusation that he said something improper to a white woman in Mississippi. His "due process" consisted of a severe beating, castration of his genitals, a public hanging, and having his body shot up while he was choking to death -- all under the watchful eye of the local sheriff.
The perpetrators of lynchings in America were nearly always angry white vigilantes.
The last known lynching in America occurred in Mobile, Alabama on March 21, 1981. The victim was 19-year-old Michael McDonald.
Ditching Due Process Does Not Make America Great Again; It Resurrects an Ugly Past that Trump Seeks to Ignore
Donald Trump wants America to return to the dark days when there was no due process of law for members of disfavored groups who were constantly demeaned, disparaged, and mistreated, and who were accused of murder, rape, and other violent crimes against white citizens. The truth or falsity of the allegations against the accused person did not matter. Inflamed public passion drove the deadly outcomes.
What is more, there were times in America's history when no criminal allegations whatsoever were needed for a mass roundup and deportation of a disfavored group. In 1954, for example, American citizens of Hispanic descent and migrants from Mexico experienced these dark days during “Operation Wetback” when the federal government rounded up 1.3 million of them and deported these individuals to Mexico -- without the mandatory due process hearings. Those deportees who were American citizens lost everything they owned. Of course, white Mexicans living in America illegally were exempted from "Operation Wetback."
If President Trump wants to get rid of the Fifth Amendment's due process clause, which he has used for his own benefit in six business bankruptcies, one sexual assault civil case, four criminal cases, and one civil business fraud case, he should lead an effort to repeal the Fifth Amendment and not just ignore it.
Trump’s dismissive attitude toward the due process clause is much like Hamilton County, Tennessee Sheriff Joseph Shipp’s cavalier attitude in the lynching of Ed Johnson, who was falsely accused of raping a young white woman in 1906. The gruesome facts regarding Ed Johnson's lynching were memorialized in detail for all time in the U.S. Supreme Court case of United States v. Shipp, 214 U.S. 386 (1909).
Considering this ugly historical background, nothing justifies the Trump administration’s repudiation of the Fifth Amendment due process protections for those persons who have been/are caught up in his ongoing migrant roundup and mass deportation program.