Due process, as discussed across these episodes, refers to the procedural protections owed to an individual before the government deprives them of life, liberty or property — and, repeatedly, to the charge that government evades those protections by placing the burden of proof on the person whose property or liberty is at stake rather than on the state. The topic appears in episodes on civil asset forfeiture, campus sexual assault proceedings, impeachment, the conservative Constitution, abortion, and municipal fines and fees. Guests include the reporter Mike Riggs, the columnist Cathy Young, the political commentator Gene Healy, the law professor Ilan Wurman, the law professor Evan Bernick, and the litigator Bill Maurer.
Due process and the burden of proof
Bob Zadek opened his 2011 episode on civil forfeiture by stating that the police are authorized by statute to take property without due process of law, imposing on the owner the burden of proving entitlement to it, and that this power is embodied in statutes in about 47 of the 50 states and in the federal government Cops Are No Better Than Criminals (2011). The laws are called civil forfeiture statutes; Riggs agreed that the description was not hyperbole, saying that people have lost houses, cars, investments, savings and heirlooms under a law placing the burden of proof on the person whose property is taken rather than on the taker.
Bob contrasted these with criminal forfeiture statutes, which he said nobody would oppose: there, criminal law due process applies, and the fruits or tools of a crime can be confiscated only after conviction with the safeguards of the prosecutorial process. The distinction between process owed before deprivation and process that convicts first runs through the article’s later episodes.
Campus tribunals
In a 2014 episode, Bob framed American college campuses as the most unconstitutional environments in America, where students are deprived of constitutional protections the rest of us are afforded, including the right to be confronted by one’s accuser and the right to a criminal trial by jury of one’s peers. He introduced Cathy Young, author of the article “Guilty Until Proven Innocent,” and the episode’s summary describes Title IX and federal mandates from the Department of Education pressuring universities into quasi-judicial systems lacking the presumption of innocence and the right to legal counsel Aren’t Men Entitled to Due Process on Campus? (2014). The episode’s discussion of a specific case, that of Peter Yu, begins only where the excerpt’s section heading appears.
Impeachment as a different kind of proceeding
A 2019 episode put due process in the context of impeachment. Bob argued that impeachment is not primarily punitive to the officeholder but an act to protect the country, and that he dislikes the analogy to criminal law because the focus is what is good for the country rather than punishment of a bad actor Which Impeachment Movie Are You Watching? (2019). Gene Healy agreed, noting that every element of a statutory offense must be meticulously proved in a criminal trial because the trial can end in loss of liberty and possibly life — so criminal defendants get a lot of due process and should. Impeachment, by contrast, results in loss of a job; Healy said the Republican arguments about constitutional due process, particularly at the House inquiry stage, are plainly wrong, since even treating the House stage as analogous to a grand jury, grand jury defendants do not get the right to call witnesses or confront their accuser — that comes at trial.
Substantive due process and the Fourteenth Amendment
In a 2021 episode, Ilan Wurman described the Supreme Court’s nationalization of unwritten fundamental rights under the doctrine of substantive due process The Conservative Constitution (2021). The Due Process Clause of the 14th Amendment, he said, sounds as though it permits government to take life, liberty or property so long as it supplies due process of law; substantive due process instead treats the clause as a substantive limitation on legislation itself, such that some unwritten rights are so fundamental the state cannot interfere with them absent exceptional justification. On that doctrine, he said, the Court has enforced rights to use contraception in marriage, to abortion, and to same-sex marriage and same-sex sodomy. Wurman argued in his book The Second Founding: An Introduction to the 14th Amendment that the original meaning of the 14th Amendment precludes substantive due process, which he said was made up in the 1870s and ’80s, and that incorporation of the Bill of Rights against the states was wrong; in the conservative Constitution he helped draft, the Due Process Clause is not to be construed to empower the national judiciary to impose unwritten rights on the nation, though the Bill of Rights is explicitly incorporated.
Evan Bernick, in a 2022 episode on the Dobbs draft, traced the same lineage from the other direction: long before Roe, the Court had recognized that the guarantee of liberty in the 14th Amendment’s Due Process Clause includes rights not specifically listed in the Constitution, such as the right to raise and guide the upbringing of one’s own children Evan Bernick on the Dobbs Draft (2022). From there, a series of cases recognized the right to choose whether to have children and to contracept or not — first for married couples, then unmarried couples — and Roe took the next step of concluding that the right extends to whether to bear children once conceived. Bernick said one question raised in the wake of the upcoming decision is what happens to these other due process precedents recognizing unenumerated rights; the opinion says the other ones are safe, but applying the analysis the Court actually applies to abortion might call that promise into question. Bob supplied the background: the Bill of Rights was enacted in 1791, Madison opposed a bill of rights on the ground that countless rights exist and cannot all be listed, and the Ninth Amendment was the catch-all ensuring that an unlisted right is not thereby denied.
Fines, fees and tainted process
Bill Maurer described two constitutional tools used against abusive municipal fines in a 2022 episode The Hidden Cause of BLM Riots (2022). The Excessive Fines Clause, he said, rests on a restriction in English law and the idea that government is not supposed to use fines to drive somebody absolutely into the ground; the problem in England was the king using fines to strip people of everything they owned, and the restriction entered Magna Carta, the English Bill of Rights, and American state and federal constitutions. The Due Process Clause supplies a second tool: where the police, the prosecutor and the judge all have a financial interest in the outcome of a case, the system is tainted, and whether you are guilty or not you have not received due process — you have received something that looks like process but is not real process, because the outcome is foreordained. Maurer also described using the media, since no city council member wants to see their name in the New York Times or the Washington Post, litigating cases both in court and in the court of public opinion.
Across episodes: the through-line and what changed
The same question — whether the individual or the state bears the burden — is argued in the 2011 forfeiture episode and the 2022 fines-and-fees episode, with Mike Riggs and Bill Maurer respectively supplying the concrete particulars, and the accusation of process that only looks real appears in both. Between them, the 2014 campus episode moves the setting from property to liberty, and the 2019 impeachment episode marks the boundary of the concept: Gene Healy distinguishes criminal due process from the House inquiry stage, where grand-jury-like proceedings do not carry the right to call witnesses or confront accusers. The 2021 and 2022 episodes shift from practice to doctrine, with Ilan Wurman attacking substantive due process as invented and Evan Bernick describing the unenumerated-rights cases built on the same clause.
What the sources do not cover
The excerpts do not supply the text or holding of Timbs v. Indiana, the outcome of the Peter Yu matter, the name or content of any bill, or the state in which any city lies. Several excerpts break off mid-sentence or at a section heading, and nothing after the break is treated here. The excerpts offer no definition of procedural due process beyond the uses the speakers make of the term.