Why Conservatives Defend Due Process Even for People They Dislike

On the night of March 5, 1770, a crowd gathered in front of the Custom House on King Street in Boston, and by the time the shooting stopped, five colonists lay dead.

It was the most inflammatory event in the run-up to the Revolution. British soldiers had fired into a crowd of civilians. The Sons of Liberty called it a massacre, and Samuel Adams and his allies made sure the whole colony, and then the whole continent, heard the word. The mood in Boston was savage. Every man in the street knew who was guilty, and the only question was how quickly they would hang.

Eight soldiers and their captain, Thomas Preston, were arrested. And then came the problem nobody wanted to touch: who would defend them? Who would stand up in a Boston courtroom and speak for the redcoats while the city howled? One lawyer said yes. He was thirty-four years old, a patriot, a cousin of the loudest agitator in town, and a man who knew exactly what the decision would cost him in popularity. His name was John Adams.

I begin there because it is the best story I know about what conservatives mean when we say due process. Adams was not defending the soldiers because he liked them. He was defending something larger: the idea that no man, however hated, can be punished except by rules that apply to everyone. He was, in a sense, defending his own future self.

What Adams did, and what happened

Adams, with Josiah Quincy Jr. as co-counsel, took the case. The trials were delayed until the autumn of 1770, when tempers had cooled. Captain Preston was tried first, in October, and was acquitted. The soldiers were tried separately in November and December. Six were acquitted. Two, Matthew Kilroy and Hugh Montgomery, were convicted of manslaughter, not murder, and were branded on the thumb, a penalty that spared them the gallows.

Adams argued that the jury had to decide on the evidence about what happened in a dark, chaotic scene, not on the passion of the town, and that the soldiers had a right to defend themselves if they were threatened. He told the jury, in words I will paraphrase, that it is better for many guilty persons to escape than for one innocent person to be convicted, echoing a principle English lawyers had been repeating since Blackstone. In later years, Adams looked back on the case and counted it among the finest services he ever rendered his country.

Notice what that service was. It was not a victory for the British. It was a victory for the rule that the verdict comes after the trial. If Boston could convict men by acclamation, then the next defendant could be a patriot, tried by a royal governor and a hostile judge. The patriots of 1770 knew that. They had been complaining for years that the Crown was denying them the trial rights of Englishmen. A town that forgot those rights when it was angry would have had no argument left.

The thesis: due process is the citizen's insurance policy

Here is the principle in plain words. The rights of the accused are not a gift to criminals. They are the insurance policy every citizen holds against the power of the state.

Think about how insurance works. You do not buy fire insurance because you plan to burn your house down. You buy it because you cannot know which house will burn, and the cost of being wrong is ruinous. Due process works the same way. You do not know whether, someday, you or your son or your church will be the one accused. You do not know who will hold power then. The only protection that does not depend on the goodwill of the people in charge is a set of rules they cannot change in the middle of the case.

That's why this is a conservative principle, and not just a civil-libertarian one. The conservative tradition begins with a distrust of concentrated power. The Founders had read their history. They knew what it meant when the Crown could seize a man, hold him without trial, search his house without a warrant and convict him before a judge who served at the king's pleasure. They wrote the answers into the Constitution.

The text: Fifth, Sixth and Fourteenth

Let me walk through what the Constitution actually says, because the rules are worth knowing in detail.

1. The Fifth Amendment (1791). No one can be held for a serious federal crime unless a grand jury has indicted him. No one can be tried twice for the same offence. No one can be forced to be a witness against himself. And no person can be deprived of "life, liberty, or property, without due process of law." The roots of that last phrase go back to Magna Carta in 1215, which promised that no free man would be seized or imprisoned except by the lawful judgment of his peers or the law of the land.
2. The Sixth Amendment (1791). In all criminal prosecutions the accused has the right to a speedy and public trial by an impartial jury, to be informed of the charges, to confront the witnesses against him, to compel favourable witnesses to appear, and to have the assistance of counsel.
3. The Fourteenth Amendment (1868). After the Civil War, the Republican Congress extended the principle to the states: no State may "deprive any person of life, liberty, or property, without due process of law." Before this, the Bill of Rights was understood to limit the national government. The Fourteenth Amendment, as the Supreme Court has gradually applied it, made most of those protections bind the states as well, which matters because nearly all criminal prosecutions are state prosecutions. Citizenship, Equal Protection and the Ballot in the 14th and 15th Amendments tells that story.

Notice the word person. The text does not say "citizen" in the due process clauses. The Fifth and Fourteenth both say "person." How far those protections reach in particular settings, including for those who are not citizens, is something courts argue about case by case, and you should read the opinions yourself and not rely on a slogan from either side. But the text is where the argument starts, and conservatives who care about the text should know what it says.

Why the rule protects the innocent

The most common mistake in this debate is the belief that procedure exists to help the guilty. It exists to find out who is guilty.

Take any rule and ask what it prevents.

• The right to confront your accuser means the person who says you did it has to say it to your face, and be cross-examined. Justice Antonin Scalia, no softie on crime, wrote the Court's opinion in Crawford v. Washington (2004), holding that the Confrontation Clause generally bars testimonial statements from a witness the defendant cannot question. His argument was grounded in the history of English trials, including the trial of Sir Walter Raleigh in 1603, who was convicted on the written statement of an accuser he was never allowed to face.
• The right to counsel exists because an ordinary person cannot sort out the rules of evidence alone. In Gideon v. Wainwright (1963), the Court held that a state must provide a lawyer to a defendant in a serious criminal case who cannot afford one. Clarence Gideon was a Florida man accused of breaking into a poolroom; he wrote his appeal in pencil from prison. When retried with a lawyer, he was acquitted.
• The requirement of proof beyond a reasonable doubt exists because of a simple fact: courts can make mistakes, and a mistaken conviction is a double injustice. The innocent man pays, and the guilty one walks free.
• The ban on unreasonable searches, which I discuss in From Writs of Assistance to Your Cell Phone, the Fourth Amendment's Long Fight, came out of the colonists' fury at general warrants that let officers rummage through any house.

Each of these rules takes time and costs money. Each of them makes the prosecutor's job harder. That is the point. The state has a badge, a budget and the power to take your freedom, and the rules are the price of its using them.

The objection: procedure frees the guilty

Now the strongest case against me, which I take seriously because it has victims on its side.

"Every one of these rules lets some guilty person walk. A technicality suppresses the evidence, a witness disappears, a juror holds out, and a dangerous man goes back on the street. The victim and her family are told that the process mattered more than the truth. Meanwhile ordinary people who obey the law pay the price in safety. You talk about insurance; the rest of us would like a little coverage too."

I am not going to wave this away, and neither should any conservative. Crime victims are real, their loss is real, and a justice system that leaves them out of the story has failed. Here is the honest answer in four parts.

One, yes, some guilty people go free. That is the cost, and the English lawyers and the American Founders accepted it knowingly. They judged it better that some guilty persons escape than that the innocent be convicted. Blackstone's ratio of ten to one is a moral estimate, not a calculation, and people argue about the exact number. But the tradeoff is real, and anyone who denies it is not telling you the whole truth.

Two, the rules can be adjusted without giving up the principle, and conservatives have done exactly that. The exclusionary rule, which keeps illegally obtained evidence out of court, was extended to the states in Mapp v. Ohio (1961). A generation later, in United States v. Leon (1984), the Court created a "good faith" exception: if officers rely in good faith on a warrant that turns out to be defective, the evidence need not be excluded. That ruling is a good example of what a reformer can do. It kept the rule and trimmed its worst consequence.

Three, victims have rights too, and conservatives have championed them. Many states have adopted victims' rights provisions, and California's voters passed a measure known as Marsy's Law in 2008. Congress passed the Crime Victims' Rights Act in 2004. The goal is to ensure that victims are informed, heard and treated with dignity, without taking away the defendant's protections. You can argue about the details, but the two aims are not opposed.

Four, the answer to slow justice is faster justice. Delay hurts everyone. A speedy trial helps the defendant and the victim alike. The better reform is to fund prosecutors, courts and crime labs, not to cut the corners that protect the innocent.

What happens when we forget

History supplies the warnings. In 1944, the Supreme Court in Korematsu v. United States upheld the removal of Japanese Americans from the West Coast during the war, on the basis of ancestry rather than any individual finding of danger. Decades later, in Trump v. Hawaii in 2018, Chief Justice Roberts wrote that Korematsu was gravely wrong the day it was decided. People of good faith made the original decision in a moment of fear, with the best reasons in the world. That is how it happens. It never happens because the leaders announce they are going to trample rights. It happens because the people are frightened and the target is unpopular.

And look at the other side of the ledger. When the rule of law holds, it holds against the powerful too, which is the point of Equal Under the Law Means the Rule Applies to the People in Charge. The same principle that protected the soldiers in Boston protected the patriots from a king. Today's unpopular defendant may be tomorrow's dissenter. red-flag laws are only as good as their due process protections applies the principle to a live policy debate: even a law with a worthy aim has to give the person at the other end a hearing.

If you want the larger frame, Where Rights Come From, and Why the Declaration Says So First explains why the Founders thought these rights came before government, and The Hardest Questions About Limited Government, Answered Straight takes on the tough cases.

A test for the next heated case

The next time a case fills the news and the public has already decided, try this. It takes thirty seconds.

1. Ask what you would want if it were your son. Not the version of the case where you are sure of the facts. The version where you are not.
2. Ask who decides. Would you rather the decision come from a jury under rules the whole country knows, or from whoever holds power next year?
3. Ask what the rule is protecting. A rule that looks like a technicality is usually standing in for a deeper protection.
4. Ask what a better version looks like. If the process is slow or unfair to victims, fix that, without giving up the safeguard.

Adams would have recognised that checklist. He didn't defend the soldiers because he thought the crowd was wrong about the danger of redcoats. He defended them because the crowd's certainty was precisely the thing a court exists to check.

The bottom line

• Due process is not a favour to criminals. It is the insurance every citizen holds against the day the state turns its attention to him.
• John Adams defended the British soldiers after the Boston Massacre in 1770, and the Founders wrote the lesson into the Fifth and Sixth Amendments. The Fourteenth Amendment carried it to the states.
• The rules protect the innocent by testing the evidence, and they cost something: some guilty people go free. That tradeoff is real, and it was accepted knowingly.
• Fix what is fixable, such as the good-faith exception and victims' rights provisions, and speed up trials, without giving up the protection itself.
• When a case has the whole country certain, remember that certainty is exactly when the rules matter most. Ask what you would want if it were your family in the dock.