On the due process

On the happenings in the United States:

There is an common argument that due process belongs only to citizens

Citizens deserve it, non citizens don’t

And, therefore, can be dealt with extrajudicially

That is a perfectly logical, internally consistent position

Now let’s think through its implications

IF citizens have the due process, and non-citizens don’t

THEN we have two parallel systems of justice

One slow, cumbersome, subject to open discussion and to appeal (due process)

Another swift, expedient, not really subject to discussion and effectively non-appealable (extrajudicial)

And the second one already encompasses tens of millions of non citizens living in the United States, legal and illegal, residents or not.

Now the question would be:

Which system is more convenient for those in power?

Well, the answer is obvious

The second one: and by a very, very wide margin

Quite naturally, the state and the authorities will absolutely love extrajudicial processes, that allow them to deal with their political opponents and to suppress dissidence fast and with very little fuzz.

So, again, you will have two systems simultaneously.

One those in power hate (due process), and another they love (extrajudicial).

What does that mean in practice:

It means that at the every possible occasion, and under every possible pretext the space of due process will shrink, and the space of the extrajudicial process will be expanded

Bit by a bit

There will be new pretexts, new reasons, new “emergencies”, and new procedural (not necessarily even legal) loopholes, to expand the space of the extrajudicial¹.

So, in a few iterations you will be having an ocean of extrajudicial process with - may be - some islands of due process scattered in between

That is totally normal and happens all the time

In fact, extrajudicial processes are typically being limited at first - to the lowly, undesirable and dissident groups - and only then, gradually, being extended up the social ladder, up to the very elites.

So, the existence of extrajudicial proceedings against those below presents a mortal danger for the due process high above - if not immediately - than within just a few iterations.

Which is the main - or perhaps the only reason - why some countries have due process in the first place.

It is not that social elites just decide to extend it on everyone out of grace

It is that those in power want to extend it on themselves, so that they could not be killed, jailed or exiled extrajudicially, just out of political expediency

And once they do, it turns out that keeping two systems of justice at once is becoming impossible

One of them will eventually devour the second².

1. With citizens, you have to engage into the long, tiresome litigations, that may easily last for years, and can actually outlast your administration.

With non-citizens, you can just ship them off into a Salvadoran supermax and nobody will be able to get them out from there.

Not necessarily legal. But a great procedural invention.

2. Consider two neighbouring countries: France and England

Both of them used to rely on some mix of due process and extrajudicial procedures

(The latter being extremely useful to deal with political opponents)

Yet, through the 17-18th c. their trajectories diverged

In England, the due process won, and old extrajudicial procedures died for everyone

(from the commoners, and up to the social elites)

In France, the extrajudicial process won, and won for everyone

(from the commoners, and up to the social elites)

Like yes, the pockets and the islands of due process remained even in France, but they could not do much except protesting