The Founders Believed In Due Process Even for People Who Killed Americans

The Trump Administration's latest arguments about due process betray an ignorance about American history and law.

The Boston Massacre. Photo by The New York Public Library on Unsplash.

Trump’s Deputy Chief for Policy and Homeland Security Advisor Stephen Miller wants us to know that there’s absolutely nothing wrong with the administration deporting people from the country, in some cases breaking up families and dropping people into a grimy dungeon in El Salvador, without even giving them a proper trial where they can defend themselves against government charges.

“Friendly reminder,” he wrote on X yesterday. “If you illegally invaded our country the only ‘process’ you are entitled to is deportation.”

It made me wonder how Miller plans to prove that someone “illegally” entered our country — it’s not an invasion no matter how many times he says it, that’s a whole different thing — if he doesn’t believe in due process. What if a bizarro future Democratic president claimed he’s illegal? He does spend an awful lot of time yelling on television in a way that reminds me of this Austrian guy. Are we sure he’s American by birth?

Wait, stop, he’s not allowed to dispute it or prove otherwise. That would be due process and application of the rule of law. Miller seems to want the government to be judge, jury, and executioner without the need for the public process that has defined our country for the past 250 years.

When I say 250 years, I’m not exaggerating. Due process — the principle that allows people to defend themselves against accusations by the government and have their day in court — has to some extent defined America’s values since before the Founding.

While we haven’t always perfectly lived up to the ideal of guaranteeing that everybody is innocent until proven guilty — think slavery, Jim Crow, Japanese interment, or the Red Scare — it’s always been one of the lodestars of the American ethos.

When a Founding Father Defended the Redcoats

John Adams, our second president. Photo by Library of Congress on Unsplash

It even once motivated one of our Founding Fathers to provide legal representation to people who had killed American colonists.

In March 1770, growing tensions between American colonists and the British administrators boiled over in the streets of Boston. One day, a group of rowdy colonists confronted a group of redcoats and a series of unfortunate events — a club struck a soldier and this led him to discharge his weapon, leading all the other soldiers to believe they were told to open fire — prompted the soldiers to shoot into the crowd.

This event came to be known as the Boston Massacre. It helped turn American colonists against King George III and spur support for the revolt. Patriots were incensed at the idea that protesters would be killed by the King’s soldiers, and only Independence would win them freedom from living under such a dictatorship.

But one of the Founding Fathers, John Adams, insisted that the British soldiers receive a fair trial. His insistence was so sincere that he decided to represent them himself in court.

His court argument can be found here. Basically, he argued that the soldiers acted in self-defense:

We talk of liberty and property, but, if we cut up the law of self-defence, we cut up the foundation of both, and if we give up this, the rest is of very little value, and therefore, this principle must be strictly attended to, for whatsoever the law pronounces in the case of these eight soldiers will be the law, to other persons and after ages, all the persons that have slain mankind in this country, from the beginning to this day, had better have been acquitted, than that a wrong rule and precedent should be established.

The results from the trial were mixed. Six soldiers were acquitted and two were convicted of manslaughter.

If Adams, who went on to serve as the Second President of the United States, ever regretted representing those British soldiers, he never told anyone.

He viewed his defense of the rule of law — and the idea that everyone deserves due process, even the soldiers who were tasked with upholding the regime that was oppressing American colonists — as a service to the United States and its ideals.

“It was one of the most gallant, generous, manly and disinterested actions of my whole life, and one of the best pieces of service I ever rendered to my country,” he would later say.