Due process is not a courtesy — it is the law

National Review reports that in a rape allegation case at Cornell University, due process was subordinated to what the publication calls 'inflammatory accusations.' I have not reviewed the case file — I am told only its shape — but the shape itself is the thing worth examining. A nation that abandons its procedural commitments whenever the accusation is grave enough has not strengthened justice. It has simply made justice contingent on the popularity of the accused.

This was among the oldest fears of those who framed the Republic's legal architecture. The crowd is not a court. Passion is not evidence. Speed is not rigor. When we built the protections of the accused into the fabric of this Republic — the right to confront accusers, the presumption of innocence, the requirement of deliberate adjudication — we did so precisely because we understood that these protections are most necessary when they are least popular. Any government, any institution, can offer due process to a defendant the public already regards as innocent. The test is whether it extends the same discipline when the crowd has already rendered its verdict.

I want to be plain: nothing in this counsel minimizes the gravity of sexual violence, nor the courage it requires to bring such an allegation forward. The victim of a genuine wrong deserves a process serious enough to find the truth and deliver accountable justice. That process is the same one I am defending. A proceeding corrupted by public pressure does not serve the accuser either — it produces outcomes that cannot bear scrutiny, that are overturned on appeal, or that, if they stand, stand on a foundation of sand. Passion builds nothing durable.

The danger National Review describes — inference, I should note, since I have only the lead — is not a new one. It is the recurring temptation of every age to believe that the intensity of a feeling confirms the truth of a claim. Institutions exist precisely to resist that temptation. A university, a court, an employer conducting an internal review — each of these bodies has a compact with the people it adjudicates: to move carefully, to hear all sides, to demand evidence, and to decide by reason rather than by the temperature of public opinion. When those institutions capitulate to the mob, they do not prove their virtue. They prove their weakness.

I would counsel this: hold the allegation seriously and the procedure seriously in equal measure. Demand of every institution — campus, court, or commission — that it conduct itself as though its legitimacy depends on the quality of its process, because it does. The Republic's strength has never been that its people were incapable of passion. It has always been that its institutions were designed to outlast that passion. Protect the procedure, and in protecting it, you protect everyone — the accused, the accuser, and the citizenry that must trust the result.