Neutrality in the court system

¶ … Neutrality in the Concept of Due Process

In principle, the concept of due process refers to the idea that established laws can be unfair in two specific ways: (1) they can promote unfairness substantively on their face, and (2) they can be unfairly procedurally in how they are administrated in society. An example of substantive violations of due process would be denial of the specific rights enjoyed by some people to others, such as the denial of the right to vote to people of color. An example of procedural violations of due process would be establishing courthouses only in certain parts of the state where only white people live. In American law, due process is guaranteed by two provisions of the United States Constitution: the Fifth Amendment (which applies only to the federal government) and the Fourteenth Constitutional Amendment. In order for those clauses to have any meaningful effect, there must be a fundamental element: neutrality.

The Concept of Neutrality in Law and Justice

Neutrality in substantive due process means that the actual requirements of law affect all persons the same. A law that treats people differently based on superficial characteristics such as color, creed, ethnicity, religion, or country of origin is, by definition not neutral because it favors some people while putting others at a disadvantage without justifiable reason. (By contrast, a law that distinguishes between people based on legitimate criteria, such as laws that establish a minimum driving age, can still be neutral because age is a legitimate basis for withholding driving privileges.) A law that requires, prohibits, or allows the same conduct of all people but is less likely to have any effect on different people is not neutral even if the actual content of the law is neutral because the law affects different people differently without justification.

Historical Example of Neutrality in Substantive and Procedural Due Process

During the infamous American civil rights era of the 1960s, Reverend Martin Luther King, Jr. And his group of followers were denied permits to hold peaceful marches through the towns of some southern states. The basis for the withholding of those permits was entirely "lawful" because the decision to do so fell within the guidelines of the city officials. The laws themselves were neutral. However, the decision as to how to apply those laws (and from whom their benefit was withheld) was made on the basis of race, making them violations of procedural due process. As Reverend King explained in his 1964 Letter from a Birmingham Jail, written after his arrest for demonstrating without a permit:

"Sometimes a law is just on its face and unjust in its application. For instance, I

have been arrested on a charge of parading without a permit. Now, there is nothing wrong in having an ordinance which requires a permit for a parade.

But such an ordinance becomes unjust when it is used to maintain segregation

and to deny citizens the First Amendment privilege of peaceful assembly and protest."