Justice Requires Fair Procedures
by Alan M. Dershowitz • August 23, 2023 at 5:00 am
"Justice, justice you shall pursue," the Bible commands (Deuteronomy 16:20); and that, in doing justice, one must not "recognize faces."
The late US Supreme Court Justice Felix Frankfurter once observed that the history of liberty is largely a history of procedural fairness. Our constitution embodies that history by reading "the due process of law."
Lately, however, many so-called progressives have been willing to ignore procedural safeguards and due process in their campaign to get former President Donald Trump — to misuse the law in an effort to prevent the leading Republican candidate from running against the incumbent candidate for president. In doing so, they are violating the second principle of justice: "Do not recognize faces." That commandment is the basis for the blindfolded statute of justice.
Some progressives who would ignore procedural safeguards to get Trump acknowledge that this is because they regard him as especially dangerous and therefore undeserving of due process. Special injustice for an unjust man!
Injustice, once practiced against an unjust person, will serve as precedent for deploying it against just persons.
Another weapon is scheduling. They are trying to get convictions in friendly locations before the 2024 elections, and willing to risk reversal on appeal, which would occur only after the election. Accordingly, they are seeking very early trial dates.... No decent defense lawyer would agree to try a case with so little time to prepare. Yet a group of prominent "get Trump" Republican lawyers has filed a brief supporting that unconstitutional rush to injustice.
These and other "get Trump" lawyers should read the Judeo-Christian commands to do procedural as well as substantive justice, and not to recognize faces. If they follow those wise commands, they will stop trying to "get Trump" or potentially any of us. Instead, they will pursue justice without regard to the face, name or party of the person being investigated and prosecuted.
"Justice, justice you shall pursue," the Bible commands (Deuteronomy 16:20); and that, in doing justice, one must not "recognize faces."
Commentators ask why the good book repeats the word justice, since every word is thought to have significance. The most relevant is that there are two kinds of justice: substantive and procedural.
The former relates to making the punishment fit the crime; the latter requires that correct procedures be employed to determine whether a crime has been committed.
The late US Supreme Court Justice Felix Frankfurter once observed that the history of liberty is largely a history of procedural fairness. Our constitution embodies that history by reading "the due process of law."
