Author: Jessica Victoria Hidalgo [1]

I. INTRODUCTION: Harry Potter and the Lack of Due Process

Mr. and Mrs. Dursley, of number four, Privet Drive, were proud to say that they were perfectly normal, thank you very much.[2]

Twenty years ago, those few, surprisingly un-magical, first words of the first Harry Potter novel sparked a global phenomenon as a generation of children and young adults fell in love with author J.K. Rowling’s magical world. The phenomenal success of the Harry Potter series is indisputable. Rowling’s seven-book series about a British boy-wizard has sold 400 million copies worldwide,[3] and the Harry Potter franchise includes dozens of short stories, eight Oscar-nominated movies, a sequel Broadway and West End play, four theme parks, toys and merchandise, video games, and, most recently, a prequel film series starting with Fantastic Beasts and Where to Find Them.[4]

The key to Rowling’s success is undoubtedly the intricacy of her story. Rowling peppered the original seven books with rich details describing Harry Potter’s world with Tolkienian portrayals of its government systems; race, class, and civil rights issues; international relations; and criminal legal processes.[5] These topics, some uncharacteristically heavy for what was categorized as a children’s book series, were sometimes played for humor or adventure.[6] Other times, they showed a darker side of Rowling’s wizarding world.[7] While the story never shied away from darker plotlines,[8] and Harry and friends purposefully matured with their audience,[9] few fans realized just how disturbing the wizarding world’s governmental and legal systems are. On its face, the wizard government and its leaders were unambiguously corrupt, the legal systems unabashedly unfair, and the government’s desire to fix the problems was always blasé at best throughout the series.[10] Beneath the trite veneer, the implications of these problems were even worse. Multiple characters were sentenced to prison, death, or death’s darker wizarding world-equivalent, the Dementor’s Kiss, when the reader, and many of the characters, knew they were innocent, or at the very least deserved a proper trial before sentencing.[11]

Two wizarding cultures are featured in the Harry Potter series: 1990s Great Britain and Roaring Twenties America. Both wizarding societies have governmental systems based, to some extent, off of their real-world counterparts.[12] If logic follows, their criminal court procedures and rights should be similar. This should especially be true for the right of a person, non-magical or wizard alike, to not be deprived of their life, liberty, or property without due process of law. However, Rowling consistently shows that this is not the case through the several criminal adversarial proceedings she describes in the Harry Potter series and in the Fantastic Beasts film. The magical accused must face corrupt, blasé governments and unjust legal systems without a guaranteed protection of their rights to a trial by jury, to seek the assistance of counsel, or to call favorable witnesses. The guaranteed right to procedural due process, and the supplemental rights designed to support it, do not exist in the wizarding world. Rowling’s vibrant and attractive wizarding world is truly a bleak and unsavory Kafkaesque, dystopian regime, and while she has alluded to some reforms to the wizarding governments’ corruption in her later work, the changes illustrated are not enough to solve her world’s drastic procedural due process problems.

Section II introduces the wizarding world of the Harry Potter series and its newest spinoff, Fantastic Beasts and Where to Find Them. It provides an explanation of the differences between the magical and non-magical worlds in the books and the implications of the rights and rules governing the wizarding citizens. Section III provides a background history into the procedural due process rights provided by the United States Constitution and Supreme Court jurisprudence. Section IV analyzes the application of these rights, or lack-thereof, in the trials and hearings seen in the wizarding world. Finally, Section V proposes the consequences of the lack of procedural due process rights and attempts to fix the dysfunction of the wizarding world—something that perhaps only Rowling and the “Chosen One” may be able to accomplish.

II. FANTASTIC BACKGROUND FACTS AND WHERE TO FIND THEM

“Narnia is literally a different world, whereas in the Harry books you go into a world within a world that you can see if you happen to belong.”[13]

– J.K. Rowling

The wizarding world is unlike Narnia, Middle-earth, Gotham, Oz, or a galaxy far, far away. It does not exist on its own island, in an alternate reality, or in its own magical dimension. Rather, Rowling designed the wizarding world as a society with its own culture, laws, and government based off of and fully existing within the culture, laws, and government of the real world. Wizards are, for all intents and purposes, citizens of their respective countries. However, wizards have a sort of dual citizenship in that they are also citizens of their respective wizarding societies subject to the wizarding rules of law and rights afforded to them. And more often than not, J.K. Rowling crafts the wizarding world as isolated from the non-magical in a deliberate attempt to justify the different laws that govern wizards and the differences in the rights they are afforded under the wizarding law and the rights that they should be afforded under legal doctrines like the U.S. Constitution.

An Unofficial Guide to Harry Potter

The basic plot of Harry Potter is relatively simple. The titular hero is an eleven-year-old orphan living in Surrey, England with his “perfectly normal” and perfectly awful aunt and uncle, the Dursleys.[14] He is also the famous “The Boy Who Lived” by defeating Lord Voldemort, an evil wizard who murdered Harry’s parents and tried to take over the world ten years before the events of the book.[15] Harry grows up oblivious to his fame and magical stature because, as pursuant to the International Statute of Secrecy, the existence of magic is concealed from non-magical persons, or “Muggles,” and anyone living in non-magical society. [16] However, Harry, with his magical lineage and ability, is soon accepted into Hogwarts School of Witchcraft and Wizardry.

As Harry grows older, his world becomes increasingly complicated. In Harry’s third school year, as seen in Harry Potter and the Prisoner of Azkaban, his godfather, Sirius Black, said to be the one who betrayed Harry’s parents to Voldemort, escapes from Azkaban, the wizarding maximum-security prison, and is sentenced to a fate worse than death, the Dementor’s Kiss.[17] In the fourth book in the series, Harry Potter and the Goblet of Fire, several of Voldemort’s former supporters face criminal trials,[18] and at the end of the novel, Harry is an eyewitnesses to Voldemort’s return, though his testimony is ridiculed by the self-serving magical government, the Ministry of Magic, and its leader, the Minister of Magic,[19] for suggesting that the evil wizard has risen again on their watch.[20] The fifth book, Harry Potter and the Order of the Phoenix, begins with Harry being subpoenaed to a criminal hearing after breaking an underage magic restriction to save himself, and his cousin Dudley, from monsters called Dementors.[21] The sixth book, and Harry’s sixth school year, ends with the traumatic murder of Harry’s father figure and the wizarding world’s greatest hope for defeating Voldemort, Professor Dumbledore.[22] Lastly, in Harry Potter and Deathly Hollows, a now seventeen-year-old Harry steps into his role as the prophesized “Chosen One”[23] and defeats Voldemort once and for all.[24]

Rowling also recently published an eighth story in the form of a play called Harry Potter and the Cursed Child, through which she explores Harry’s life twenty-two years after he defeated Voldemort.[25] Harry grows up to be a senior Ministry official, and his friend Hermione Granger becomes the Minister of Magic; the goal of her administration is to end the corruption in the government that she despised as a child.[26] The plot also revolves around the reveal of Voldemort’s young daughter, Delphini “Delphi” Riddle, and her murderous plan to recreate the past and devise a world where her father was never defeated.[27]

In November 2016, Rowling and Warner Bros. Studios released the first film of a new spinoff series, entitled Fantastic Beasts and Where to Find Them. [28] The film follows Newt Scamander, an academic who studies magical creatures.[29] He travels to New York for work in 1926, but along the way meets the Goldstein sisters, two witches working for the Magical Congress of the United States, or MACUSA, the American wizarding government,[30] and is involuntarily pulled into the government’s hunt for a magical creature wreaking havoc across New York.[31] Of course, the rare creature that is wreaking havoc is similar to one that Newt also happens to have in his traveling menagerie.[32] Newt and Tina Goldstein are framed for releasing the monster by the director of MACUSA’s magical law department, Percival Graves, and are sentenced to death for their crimes.[33] After their escape from execution, Newt and friends battle Graves and discover that he is actually Gellert Grindelwald, Voldemort’s parallel of the early twentieth-century.[34]

The Wizarding Society of Great Britain in the 1990s

The original Harry Potter series is set squarely within Great Britain, and the sheer number of books, short stories, and writings dedicated to the original story afford the reader the most complete view of a full wizarding society and its interactions with the non-magical world.

Because the wizarding world exists within British society, its infrastructure is co-mingled with daily Muggle life. The best, and first, example the reader sees of this is the scene in which Harry goes to Diagon Alley to shop for school supplies early in the first book.[35] Diagon Alley is the most popular shopping location in the entire British wizarding world, and it is located in a distinctly non-magical, trendy shopping district in London, just minutes from a London Underground station.[36] Rowling writes, “[Harry] passed book shops and music stores, hamburger restaurants and cinemas . . . This was just an ordinary street full of ordinary people.”[37] The entrance to Diagon Alley’s main-street is even located through a wall behind the a “grubby-looking pub” situated in between an ordinary “big book shop on one side [and a] record shop on the other.”[38] However, while the wizarding society’s shopping district is located just down the road from the Tube, it is hidden from Muggles and completely closed-off from the outside world.[39]

This is not the only instance of isolation from the rest of the non-magical world. In the fifth book of the series, it is revealed that St. Mungo’s Hospital for Magical Maladies and Injuries, the only known hospital servicing all of wizarding Great Britain, is located in an abandoned department store in London.[40] Throughout the series, Rowling places important symbols of British wizarding life close enough to the real world to emphasize that wizards are British citizens, but still out of reach of the non-magical; even Hogwarts is inconveniently located in the remote Scottish countryside.[41] Therefore, while wizards are British citizens, they are either required or feel the need to separate their world from non-magical society.

In addition to the separation of the wizarding world’s locations from the Muggle world, the British wizards are profoundly disconnected from Muggle culture. The running joke of the Harry Potter series is that wizards, especially those born to purely-wizard families, do not understand aspects of the Muggle world. British wizards’ confusion can range from a lack of cultural knowledge to a total misunderstanding of modern technology. For example, one character is both amazed and befuddled by the subway system, and several of Harry’s wizard classmates had no knowledge of soccer until one of the Muggle-born students tacked a picture of the West Ham team on his dormitory wall.[42]

This lack of understanding is attributable to the lack of connection the wizards have with the Muggle world. The International Statute of Secrecy hides the existence of magic from Muggles for the protection of both wizard and non-wizard kind.[43] The result is that many wizards live secluded from the Muggle world. Both the Weasley and Malfoy families live in rural communities, while others live in primarily-wizard communities like the Hogsmeade or Godric’s Hollow villages.[44] Even the Black family, the epitome of the wizarding upper class, lived in a London townhouse that was invisible to its neighbors.[45]

Muggle-born wizards are the rare exception to the overall isolation from the Muggle world. Because they lived in Muggle society before attending Hogwarts, they are more readily able to interact with the non-wizard world.[46] However, the isolation of the wizarding world still affects all wizards regardless because the government can justify its different rights, rules, and regulations by claiming a need to uphold the secrecy and protect the wizarding world.

The Ministry of Magic is the British wizarding government tasked with upholding secrecy and managing wizarding society.[47] It is led by the wizard-equivalent of a prime minister, the Minister of Magic. The Minister of Magic is, for the most part, democratically elected; however, he has no limit to his term of office.[48] Most of the good Ministers die in office, and most of the bad ones are forced, not voted, out.[49] Nearly all are career politicians.[50]

Both the Ministry of Magic and its Ministers of Magic are often seen as utterly corrupted.[51] Cornelius Fudge, the Minister in the first five books, constantly puts his reputation over his duty to his constituents and takes actions that ignore citizens’ rights just to get a good headline in the newspaper.[52] Many of the other Ministry officials are also corrupted in some way.[53] Even Arthur Weasley, the comical father of Harry’s best friend whose job is to destroy all enchanted objects, created a loophole in the law so he could make a flying, sentient car without breaking the law himself.[54]

Many of these corrupted officials oversee the bureaucratic departments that make up the Ministry of Magic. There are seven departments, the most relevant being the Department of Magical Law Enforcement that includes the Council of Magical Law and the Wizengamot, the wizarding equivalents to district and supreme courts, respectively.[55] The Council of Magical Law and the Wizengamot are made up of more than fifty members—predominantly Ministry officials.[56] Both oversee criminal cases, and all members are allowed to argue back and forth with each other, question the accused, and recommend sentencing like the judge, jury, and prosecutor.[57] Interrogators make up the lowest level of the wizarding court system. They are Department and court members who interrogate, investigate, and convict defendants for misdemeanor-like criminal violations as if their jobs are a cross between police detectives, prosecutors, and the district court.[58] While the accused who appear before these courts have the right to present witnesses,[59] they must represent themselves—there are no wizard lawyers.[60]

The Ministry’s primary purpose as the wizarding world’s separate government does not necessarily require complete disconnection from the Muggle world. Similar to Diagon Alley, the Ministry of Magic’s entrance is located near the British government buildings in London.[61] The Minister also enjoys a close working-relationship with the British Prime Minister. He is liable to his Muggle equivalent in certain issues, like the importation of dragons or warning the Muggle world about escaped criminals or Voldemort’s impending takeover.[62] He can also ask the British government for help capturing escaped criminals or finding missing children.[63] But while the Minister is assumed to be a sub-official under the British Prime Minister, a necessary structure if the wizarding people are truly citizens under the British government, Rowling has said that is not the case.[64] The Ministers of Magic as of late[65] purposefully keep the Prime Ministers as unaware of wizarding affairs as possible.[66] The less the British government knows about the magical world, the less it can govern wizarding citizen’s magical grievances or crimes. Thus, Rowling ensures that the wizarding world is entirely dependent on its own government and subject to its rules and regulations.

The Wizarding Society of America in 1926

The Fantastic Beasts film is the first true look at another wizarding world, and Rowling did not miss the opportunity to provide another nearly-complete look at the new American wizarding society. The information in the film, screenplay, and Rowling’s additional essays shows that, although American wizards are more involved in Muggle (or “No-Maj,” in American wizard slang[67]) everyday life than British wizards, they are even more isolated from the non-magical world and are afforded no protection under the U.S. Constitution.

The intertwining of wizarding life and American culture is best seen in the Goldstein sisters. Tina and Queenie Goldstein live in an apartment complex in the heart of New York City, and it is easy to assume that they share their brownstone building with No-Maj neighbors.[68] Their home is in the overwhelmingly No-Maj big city, they shop at No-Maj-owned businesses,[69] and they are even clearly up-to-date on No-Maj fashion and culture,[70] all areas where their British counterparts are hit-or-miss.

Tina and Queenie are not the exception to the rule. Unlike the British wizards who often live in rural or majority-wizard communities, most American wizards find ways to connect their lives with the No-Maj world. Rowling’s essay, “The Magical Congress of the United States of America,” states that the initial headquarters for the wizarding government was located in the Appalachian Mountains, purposefully isolated from No-Majs.[71] However, the location had to be abandoned “as wizards, like No-Majs, were increasingly congregating in cities.”[72] The greatest wizarding institution seen in the film was then moved into the famous Woolworth Building on Broadway in New York City, just steps from New York City courthouses.[73] While the Ministry of Magic is located in an abandoned department store to maintain its secrecy, the American wizard government can be found working alongside No-Maj Americans.

However, American wizards have a significantly harder obstacle to overcome than the British wizards to feel like true American citizens. Even though their lives and infrastructure are located much closer to American life, they are extremely limited in their interactions with No-Maj by a document called Rappaport’s Law. Rappaport’s Law of 1790 was created as an American addition to the International Statute of Secrecy after the Salem Witch Trials caused the American wizard government to force American wizards to cut all ties with No-Majs.[74] As such, Rappaport’s Law severely restricts wizard interactions with No-Majs.[75] It also separates wizards from American life, thus depriving them of the constitutional Amendments that should protect them as American citizens.

In response to Rappaport’s Law, and in furtherance of this isolation, MACUSA also has no connection with the American No-Maj government.[76] Nor is it even not based on the American structure of government. Rowling states that MACUSA was originally based on the British Ministry of Magic, with only a few changes made to reflect American politics, like having a President instead of a Minister of Magic.[77] There is also no mention of a magical version of the Constitution, although Rowling implies that the real Constitution exists for No-Maj Americans.[78]

Because of the limited amount of material on American wizards, we do not know much more about the American wizard legal system. However, MACUSA is stated to have a large Department of Magical Law Enforcement, and because the government is based primarily on the British version, it is easy to assume that the legal systems are identical.[79] In Fantastic Beasts, an Interrogator even holds an Interrogation Hearing, which is the lowest form of wizarding court.[80] In addition, the head of the Department in 1926, Percival Graves, works as an Auror (the wizard equivalent of an FBI agent), a pseudo-Vice President with Defense Secretary authority, and a magistrate judge-like Interrogator with the ability to capture, interrogate, try, convict, and sentence to death accused criminals like Tina Goldstein without any investigation or input from other officials.[81]

Rappaport’s Law achieves the same effect as the Ministers’ of Magic actions to keep the Prime Minister unaware of the magical world. The American government and the rights and regulations that come with being an American citizen cannot be applied to wizarding citizens because their existence is kept secret by their own government. This isolation in turn leaves the American wizards’ fates in the hands of the wizarding government and creates a justification for implementing rules and rights, especially for constitutional criminal procedure, inherently different from the rules and rights that should be the norm for them as American citizens.

Isolation Implications in Action

In Rowling’s short prequel Harry Potter story drafted in 2008, she describes a wizarding encounter with the Muggle police. The altercation involves Harry’s then-teenaged father, James Potter, and godfather, Sirius Black, who are caught speeding on an enchanted motorcycle by Muggle police officers.[82] While the story is short, it shows that wizards are susceptible to British law and can be arrested for breaking it. What it does not show is what would have happened after the altercation had it not been interrupted by Voldemort’s followers.[83] Rowling describes the process in bits and pieces throughout the series: regardless of the jurisdiction, and regardless of the crime, the Ministry of Magic would have stepped in almost immediately and handled the matter themselves while probably hexing the police so that they would forget the encounter ever occurred.[84] For breaking the Muggle law, James and Sirius would likely face no charges beyond a slap on the wrist and a “boys will be boys.” Worse crimes against Muggles have received little more punishment.[85] But more serious crimes against non-magical-kind, like murder, are completely contained by the magical government as they spirit the magical accused away from the scene, [86] even though the non-magical government has just as much of a jurisprudential right to penalize the crime as the magical government, and the accused, as a citizen breaking non-magical law and committing crimes against non-wizards, should be tried under the non-magical justice system. Instead, the accused are often sent to prison or worse without a trial, investigation, or interrogation.[87]

In contrast to these situations, Rowling also describes a typical criminal prosecution for Muggles in the Harry Potter universe. Elderly Muggle Frank Bryce was framed and accused of the murder of Voldemort’s father in a primarily Muggles village. [88] Whereas Frank, the family groundskeeper, was the only suspect in the area once Voldemort (the true murderer) disappeared, the local police force did a proper investigation and interrogation of the crime and ultimately released him due to a lack of evidence.[89] The magical accused who break non-magical law should face similar investigations. Yet, because of their isolation from the non-magical world, their rights are often overlooked in favor of swift justice and reputation in the Kafkaesque wizarding world.[90]

III. HARRY POTTER AND THE HISTORY OF THE LAW

“Words are, in my not-so-humble opinion, our most inexhaustible sources of magic.”

– Professor Albus Dumbledore[91]

The isolation of the wizarding societies undoubtedly affects the rights afforded to the British and American wizarding citizens and the enforcement or ignorance of those rights. While the rights under American constitutional criminal procedure are limited, wizarding citizens of both Great Britain and America lack even the most fundamental constitutional rights to due process.

To understand the due process rights missing in the Harry Potter world, it is important to first understand the rights protected by due process, the purpose of those rights, and how they are applied and limited in our own society.

Due Process: A History [92]

The Fifth Amendment, the Sixth Amendment, and Article III Section 2 of the U.S. Constitution of 1787 all guarantee certain inalienable rights to defendants in criminal trials.[93] Chief among these is the right to due process of law and its supporting rights, most notably the right to a trial by a jury of the accused’s peers, the right to call and confront witnesses, and the right to counsel.[94] The Constitution’s definition of “due process” was based on the British Magna Carta of 1215, which stated, nearly 600 years earlier, that no man could be deprived of his life, liberty, or property “except by the lawful judgment of his equals or by the law of the land.”[95] By 1364, King Edward III had simplified the phrase to address court proceedings: “No man of what estate or condition that he be, shall be put out of land or tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due process of law.”[96] And “‘due process of law’ meant that judgments could [be] issue[d] only when the defendant was personally given the opportunity to appear in court.”[97]

By the time the Framers began to consider the need for a Constitution, several state constitutions had already restrained the states’ governments from depriving a person of life, liberty, or property without authorization under the law of the land.[98] Some Framers, like James Madison and Alexander Hamilton, considered these rights so important to American citizens that they were initially skeptical of whether America needed a Bill of Rights.[99] Madison eventually changed his position, and repeated the sentiment of the states in his draft of the Fifth Amendment, adopting the phrase “due process,”[100] as well as including other criminal procedural rights in Article III Section 2 and in the Sixth Amendment.[101] The rest is history.

B. The Rights Enumerated in the Constitution

The text of the Fifth Amendment reads,

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.[102]

The Amendment guarantees several criminal procedural rights, including, most notably, the right to due process of law.[103] Madison extended the idea of due process protections in drafting the Sixth Amendment by adding several further rights for accused in criminal prosecutions. The Sixth Amendment states:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.[104]

The Amendment guarantees the accused the right to a Trial by a Jury of his impartial peers, the right to Confrontation of Witnesses, the right to Call Witnesses in his favor, and the Right to Counsel.[105]

A Note on the Rights Protected in a Criminal Hearing

In Harry Potter, many of the trials seen are actually “hearings” meant to be less than a full trial. Barty Crouch, Jr., is the only notable character to receive a full criminal trial.[106] The rest of the accused in the Harry Potter series face either no trial or attend hearings. [107]

The Supreme Court requires hearings to be considered as equivalent to a trial for the purpose of due process, and has stated “some kind of hearing is required at some time before a person is finally deprived of his property interests.”[108] A hearing is traditionally defined as “any oral proceeding before a tribunal”[109] with the word “tribunal” being broad enough to reasonably include the single Interrogators seen in Harry, Newt, and Tina’s hearings.[110]

While hearings are less than full trials, their necessary elements have a constitutional basis.[111] The most notable of these elements, proposed by Judge Henry J. Friendly, former judge for the United States Court of Appeals for the Second Circuit, are: an Unbiased Tribunal, The Rights to Call Witnesses, To Know the Evidence Against One[self], To Have Decision Based Only on the Evidence Presented, and the right to the presence of Counsel.[112]

These rights are almost identical to the rights protected under the Fifth and Sixth Amendments. Therefore, the four categories of rights addressed in this paper will combine the relevant rights from Judge Friendly’s requirements for a fair hearing and the relevant rights from the Constitution. Specifically, the following sections will discuss the right to due process of law and three of the rights that support it: the right to a trial by a jury of impartial peers, the right to call and confront witnesses, and the right to the assistance counsel.[113]

2. The Limitations on Constitutional Rights in America

The Fifth and Sixth Amendments were designed by the Framers to avoid situations where the accused may face a deprivation of life, liberty, or property without the due process of law. However, the Framers’ descriptions of the Fifth and Sixth Amendments have been elaborated and contorted throughout the 230-plus years the Constitution has been in force, and was especially shaped by Supreme Court jurisprudence from the early and mid-1900s. We now have the benefit of several decades’ worth of law dictating the edges of our constitutional rights and an understanding of how and why each right applies.

For example, the Sixth Amendment, with the many rights contained within it, has created a great deal of jurisprudence. The Sixth Amendment offers a right to counsel, but the circumstances where counsel’s presence is required are limited to situations where a suspect is in custody, being interrogated, and has explicitly declared a desire to have counsel present.[114] Gideon v. Wainwright famously extended the right to counsel into a state requirement to appoint counsel for defendants who cannot afford to hire one, but the right only comes into play post-adversarial proceedings.[115] The right to confront witnesses is equally limited by federal and state evidence rules. And the right to a trial does not necessarily protect a suspect from languishing in jail while awaiting their court date. However, even with all of these limitations on the rights under due process, American law affords a person more rights than that of the average wizard in the wizarding world.

C. Due Process at Work in the Real World

The differences between the rights Americans are guaranteed and the rights afforded to the wizarding world draw a stark contrast between criminal proceedings in the real world versus the magical one.

Imagine a scenario where a criminal defendant is suspected of committing mass murder. Now imagine another scenario, where instead of committing mass murder, a defendant is suspected of recklessly and deliberately endangering human life. Lastly, imagine an accused who is undeniably guilty of committing a very minor offense, but can justify the crime because he acted to save his own and another’s life. The consequences of these three scenarios involve possible takings of life, liberty, or property. The accused mass-murderer could receive the death penalty, the reckless defendant could receive life in prison without parole for endangering lives, and the minor offender could be facing a hefty fine. However, under the Fifth Amendment, none of these defendants can have their life, liberty, or property taken without due process of law. They are entitled to an investigation of the facts of their case before they can be charged, the right to a criminal trial where they can plead their case in front of a jury of their peers, the right to have the assistance of counsel if they choose to hire a lawyer or ask for the help of a public defender, and a right to confront witnesses and contest evidence. Under the Constitution, the accused mass-murderer and his lawyer could save his life by successfully proving to the jury that he was framed. The reckless defendant could save herself from a life in prison by providing evidence of her solid alibi. And the sympathetic defendant could see all charges dropped if he is able to prove that the circumstances of the situation and his heroic efforts warranted breaking the law.

The Sixth Amendment and Article III Section 2 clearly state that all criminal prosecutions must be addressed in trials and before a jury. Therefore, the Constitution guarantees all of the above defendants the right to a trial by jury. Consider further specific issues in the accused mass murderer’s case. Because he has the right to a trial, he can present evidence, call witnesses, or just testify himself, either acting pro se or with the assistance of a lawyer, before an impartial jury of his peers. He has a chance to prove his innocence; the right to a trial saves him from facing the death penalty without hope. The adversarial system that a trial provides should allow for the truth to be revealed, and allow the impartial jury to find him not guilty of the crime for which he has been accused.

Similarly, the reckless defendant’s constitutional right to call witnesses allows her the chance to prove that she was not the one responsible for the crime she has been charged with. She can find and present witnesses who can corroborate her alibi and prove that she was not on the scene, or even in the country, when the crime was being committed, making it essentially impossible for her to be the culprit. Like the accused mass-murderer, she can save herself from life in prison thanks to the rights afforded to her by the Constitution.

Lastly, consider the minor offender’s case and the right to present to an impartial jury. Suppose he should be acquitted based on the circumstances, but the judge or one of the jury pool members has a personal vendetta against him. Is the defendant out of luck, resigned to paying the hefty fine simply because he had the misfortune of presenting his case in front of that person? No. The Constitution requires that a defendant be able to present his case to an impartial jury; therefore, the judge and the jury in this case must remain impartial. The judge will have to recuse himself when there is an appearance of bias,[116] and the defendant’s lawyer will sort out the biased juror in Voir Dire.[117] Therefore, the three defendants would have a chance to save their life, liberty, or property thanks to their due process rights.

IV. DUE PROCESS IN HARRY POTTER

“We can’t choose our fate, but we can choose others. Be careful in knowing that.”

Professor Albus Dumbledore

Justice Benjamin Cardozo of the Supreme Court, and, theoretically, a judge in office in New York in 1926 during the events of Fantastic Beasts,[118] described the concepts of liberty, freedom, and due process as “a principle of justice so rooted in traditions and conscience of our people as to be ranked as fundamental.”[119] Embellishing on that categorization, he added, “Fundamental too in the concept of due process, and so in that of liberty, is the thought that condemnation shall be rendered only after trial . . . The hearing, moreover, must be a real one, not a sham or a pretense.”[120]

The wizarding world does not see due process as fundamental, and their hearings more often serve as shams and pretenses than not. Wizards have two explicitly-written rights according to Rowling: the right to call favorable witnesses in criminal proceedings and the right to counsel.[121] However, there are no actual lawyers in the wizarding world, and the right to call witnesses is kept secret from even the accused.[122]

Other rights that are explicitly named in the Constitution and considered fundamental factors of due process are applied arbitrarily in the wizarding world. The right to have fair, impartial fact finders deciding a case is absent. Rather, corrupt officials can try and convict defendants on a whim. The right to have an actual jury of peers as the decision makers in a case is similarly absent. Instead, the accused can find himself facing a selection of fifty council members yelling over each other while ignoring everything he says. And the rights of the accused to bring favorable witnesses and have the assistance of counsel if so desired are not fully realized. Instead, a defendant has to fight to get a word in amongst the feuding and biased council members, or argue against the sole judgment of an Interrogator.

There are four criminal proceedings of note in the Harry Potter series: the prosecutions of Sirius Black and Barty Crouch, Jr., Harry Potter’s disciplinary hearing, and Newt Scamander and Tina Goldstein’s interrogation and conviction.

Have You Seen This Wizard[123]: The Conspiracy Against Sirius Black

In Harry Potter and the Prisoner of Azkaban, Sirius Black’s crime and conviction is described in hushed tones by professors in a wizard pub as news of his escape from prison threatens Hogwarts’ students.[124] Sirius was said to have betrayed his best friends, Harry’s parents, by revealing their location to Voldemort.[125] He was said to be the only person who knew where they were hiding; even Dumbledore testified that he was sure Sirius had revealed the secret location to Voldemort.[126] After Voldemort killed Lily and James Potter, Sirius visited the crime scene, offered to adopt Harry, then gave a suspicious Hagrid his motorcycle to deliver him to the Durselys before finally meeting he and James’s old friend, Peter “Wormtail” Pettigrew, on a crowded street.[127] Wormtail, “maddened by grief, no doubt, and knowing that Black had been the Potters’ Secret-Keeper, [ ] went after Black himself.”[128] The Muggle eyewitnesses testified that Sirius and Wormtail fought for a moment before Wormtail announced to the world that Sirius had killed Lily and James.[129] Sirius then seemingly dealt the fatal blow as Wormtail suddenly exploded, killing him and twelve Muggles nearby.[130] Sirius was still on the scene when the Magical Law Enforcement arrived, and witnesses described him as “standing there laughing with what was left of Pettigrew in front of him.”[131] Sirius was “taken away by twenty members of the Magical Law Enforcement Squad…[and was] in Azkaban” up until the beginning of the third book, for a total of twelve years in solitary confinement.[132]

The evidence seems to make it an open and shut case: Sirius conspired with Voldemort to kill the Potters, attempted to take baby Harry after he survived, then murdered Wormtail and twelve innocent bystanders. However, Sirius had a counter-argument for every piece of evidence. He indeed was supposed to know where the Potters were hiding, but persuaded them to entrust Wormtail with their secret location instead as a ruse to distract Voldemort.[133] His job was to check up on the cowardly Wormtail and keep him safe; the only reason he arrived on the scene of the crime was because he suspected Wormtail had played a part in the murders when he disappeared shortly thereafter.[134] He offered to adopt Harry and gave Hagrid his motorcycle because he was a caring godfather.[135] He was the one who tracked down Wormtail seeking revenge, and Wormtail had faked his own death to frame Sirius.[136] Finally, Sirius was laughing when the magical S.W.A.T. team arrived because he was “maddened by grief” and had assumed karma had caught up to Wormtail and made his own spell backfire on him.[137]

All of these facts would have been revealed if Sirius Black had had the chance to plead his case in a Muggle court of law. Even with the evidence stacked against him, Sirius would be guaranteed the right to due process before he was thrown in Azkaban or subjected to the Dementor’s Kiss. He could have found a high-profile lawyer to present his side of the story,[138] and discovered evidence or witnesses to corroborate his tale and persuade an impartial jury that he was framed.

However, as Sirius was a wizard, his criminal process was quite different. He was not afforded a hearing, much less a trial by jury, before being deprived of his liberty and sent directly to Azkaban.[139] At the end of the third book, even after the truth was revealed, Sirius was quickly sentenced again, this time to the British wizard equivalent of the death penalty, the Dementor’s Kiss.[140] The Dementor’s Kiss is a horrific punishment, inflicted by monsters called Dementors, where the creature literally sucks the soul out of its victim. “[The victims] can exist without [their] soul . . . But [they will] have no sense of self anymore, no memory, no . . . anything. There’s no chance at all of recovery. [They will] just–exist. As an empty shell. And [their] soul [will be] gone forever.”[141] The Dementor’s Kiss essentially rips the personality, enthusiasm, and self-awareness from its victim; a deprivation of life and liberty if there ever was one. But although Sirius was at risk of losing both life and liberty, he was still not afforded a simple criminal trial or the right to present favorable witnesses, even though there were six competent persons ready to testify.[142] And for what the wizarding world lacks in other due process rights, they unfortunately make up for with their pseudo-right to speedy convictions. The Minster of Magic, who happened to be at Hogwarts at the opportune moment to immediately sentence Sirius, could not even wait a few hours for the most credible witness, Professor Remus Lupin, to transform back from a werewolf into a human.[143] Rather, he sentenced him to the Dementor’s Kiss on the spot.[144]

B. Throwing Conflicts of Interest to the Wind: The Trial of Barty Crouch, Jr.

If Sirius Black’s criminal procedure experiences seemed bad in the third book in the series, Barty Crouch, Jr.’s trial in the fourth book was far worse. Barty was the son of Bartemius Crouch, Sr., the former head prosecutorial-figure on the wizard courts and the man who had originally decided to send Sirius Black to prison without trial.[145] Barty was arrested during a witch hunt for the Voldemort supporters who had tortured two Aurors,[146] and was brought to stand trial before the Council of Magical Law along with three other accused co-conspirators. Barty was only a petrified-looking boy in his late teens,[147] but he was tried alongside the maniacal Lestranges.[148] The Lestranges were, unsurprisingly, revealed to be guilty of the crime, but there were doubts as to Barty’s guilt even years after the trial.[149] He had simply gotten mixed up with the wrong crowd, was in the wrong place at the wrong time, and was arrested and charged by the self-serving Ministry’s need to look competent to their constituents.[150]

Barty’s chance to appear in a trial, even if it was before a council of Ministry officials, should have solved all of the problems Sirius Black faced. He should have been able to bring in a friend to act as his lay counsel, and had the chance to present favorable witnesses to prove his alibi on the night the crimes were committed.

But instead, Barty was tried in a joint trial with the Lestranges, three of the most infamous Voldemort supporters.[151] Barty’s potential innocence was overshadowed by the council’s hatred and fear of the Lestranges; it was hardly an impartial jury. To add fuel to the fire, Bellatrix Lestrange purposefully turned the Ministry officials against them by declaring their undying support for Voldemort, thereby scaring the council and implying that Barty was connected to the Lestranges’ crimes in the same breath.[152] Any semblance of an impartial jury was lost the moment someone decided to try poor Barty alongside the Lestrange siblings.

That someone was likely Barty’s father. Rowling alludes to a dysfunctional father-son relationship between the two, and Bartemius Crouch, Sr. does not hide his disdain for his son, and his belief in his guilt, during the trial.[153] Bartemius Crouch, Sr.’s obvious bias, whether as a loving dad or distant father, should have immediately precluded him from presiding over his own son’s trial. But no one questioned it, leaving Barty with the right to a trial, but without any hope of an impartial jury.

The lack of impartiality, in turn, affected Barty’s rights to present witnesses and seek the assistance of counsel. Barty is neither offered the chance to find a friend to act as his representative, nor has the chance to fully present his case beyond begging his father to believe him while his father consistently ignored and interrupted him and his mother fainted in the corner.[154] Without a neutral third-party to mediate the emotional family situation, Barty’s weak pleas are trampled by his father’s authoritative commands, and he is sentenced to prison without the chance to assert his rights.[155] While wizards are allowed these two due process-supporting rights, they are not guaranteed. The Ministry of Magic can apply or ignore them at will;[156] it is as if the magical accused have no due process rights at all.

C. Undesirable No. 1[157]: Harry Potter’s Legal Woes

Harry Potter himself faces many legal predicaments throughout the series. In the second book, Harry Potter is visited by Dobby the house-elf, who tries to stop him from attending Hogwarts that year by using magic in the Dursleys’ house.[158] The action causes the Ministry of Magic to put Harry on probation for violating an underage magic restriction.[159] A year later, Harry himself uses magic again when he accidentally turns his awful Aunt Marge into a human balloon.[160] However, Harry does not receive another letter for violating probation, and is in fact told by the Minister of Magic, Cornelius Fudge, that he exempted Harry from punishment because Harry is famous and Fudge cannot damage his own reputation by punishing the savior of the wizarding world.[161]

The reprieve is short-lived. In the fifth book, Harry uses underage magic for the third time to save himself and his cousin from Dementors.[162] By doing so, Harry inadvertently violates “paragraph C of the Decree for the Reasonable Restriction of Underage Sorcery, 1875” and “section thirteen of the International Confederation of Wizards’ Statute of Secrecy.”[163] By this time, Harry has become the bane of the Minister’s existence as he tries to hide proof that Voldemort has returned under his watch.[164] He views Harry’s insistence on what he witnessed the summer before as Harry’s attempt to slander the Minister’s reputation.[165] Harry is immediately expelled from Hogwarts by letter, demanded to forever relinquish his wand, then, after Dumbledore intervenes, put on probationary-expulsion pending a disciplinary hearing.[166]

A few chapters later, Harry arrives at the Ministry for his hearing.[167] Several characters reassure Harry that his use of underage magic was justified and legal under an exception for necessary circumstances, saying that “clause seven of the Decree states that magic may be used before Muggles in exceptional circumstances, and [the] exceptional circumstances include situations that threaten the life of the wizard or witch himself, or witches, wizards, or Muggles present at the time.”[168] In addition, “under the Wizengamot Charter of Rights, [Harry] has the right to present witnesses” to testify to his innocence based on their personal knowledge of the event.[169] However, Harry was not made aware that he needed to prepare witness testimony, nor did he know that he could find someone to act as his representative. He is only saved by the deus ex machina appearance of Professor Dumbledore, or as Dumbledore stated, “due to a lucky mistake [he had] arrived at the Ministry three hours early,” just in time to step in as Harry’s civilian lawyer, or “witness for the defense,” totally prepared to present the facts of the case.[170]

But even after Dumbledore successfully introduces Harry’s neighbor, Ms. Figg, as a favorable witness, Minister Fudge, as judge, jury, and chief prosecutor, attempts to re-write or ignore the exception clause in the law so that he can expel Harry based on his penchant for getting detention at school.[171] As Dumbledore says, “in [Fudge’s] admirable haste to ensure that the law [was] upheld, [he] appear[ed], inadvertently [he] was sure, to have overlooked a few laws [himself].”[172] Finally, Harry is cleared of all charges, [173] but his narrow escape from the cold hands of injustice is not lost on the reader.

What Harry is escaping may seem like nothing compared to the Dementor’s Kiss and life in Azkaban as Sirius Black and Barty Crouch, Jr., face. However, being expelled from Hogwarts is equivalent to either punishment. The problem is not in the expulsion itself, but in the fact that expulsion requires his wand to be snapped, making him unable to perform magic for the rest of his life.[174] The Ministry would be depriving him of his physical property, his wand, and his life though his identity as a wizard, all without properly investigating his case and by purposefully ignoring laws that made his crime justified. Harry seems to meet three of the four due process rights discussed here: he has some level of counsel, he can present witnesses, and he was given the ability to present his case at a trial or hearing. However, none of this mattered because the decision makers were completely biased against him. He had no right to an impartial jury. In addition, he was not told that he had the right to counsel and the right to bring witnesses, and he even had the trial time and location moved on him for the sole purpose of creating another reason to sentence him. It is as if Harry did not have these rights at all, even though he was in danger of having his physical, mental, and emotional property taken away from him. In summary, even Harry Potter himself has no right to due process of law.

D. Wanded and Extremely Dangerous[175]: Newt and Tina’s Escape from Justice

Finally, in Fantastic Beasts, we see the interrogation of Newt Scamander and Tina Goldstein. Prior to Newt’s arrival in New York City, a magical parasitic creature known as an Obscurial had been attacking the city.[176] Upon Newt’s arrival, he meets Tina, who, as a former Auror, arrests him for smuggling magical creatures into the United States inside of his magical, TARDIS-like suitcase, and being haphazard enough to let some of the creatures escape.[177] When she turns him in to the MACUSA President, however, she inadvertently helps him become suspected for releasing the Obscurial into the city.[178] He and Tina are forced to attend an Interrogation with the head of the American Department of Magical Law, Percival Graves;[179] and in the course of a normal enough interrogation, Graves finds Newt’s Obscurus (the parasite part of an Obscurial) and lets a comment slip about the uselessness of the creature without its host.[180] The sinister comment reveals Graves’s true nature, and Graves immediately sentences Newt to execution for recklessly endangering the lives of humans and wizards for the treasonous supposed-purpose of provoking a war between the non-magical world and wizard kind, the hallmark of the evil wizard Gellert Grindelwald’s philosophy.[181] And because Tina, who was simply standing behind Newt as the officer who had turned him in, heard what Graves had said, he also sentences her to immediate execution for aiding and abetting a traitor to wizard kind.[182] Newt and Tina are escorted out by two executioners; however, neither woman is acting against their will or seems to be under Graves’s control. Rather, it is more or less business as usual, with no one questioning Graves’s ability to single-handedly sentence two people to death after a five-minute interrogation in which only he and the accused were present. They just happily follow his orders.[183]

Despite the dark topics explored in the original seven-book series, fans were shocked at how suddenly and easily Percival Graves was able to sentence both characters to immediate execution in order to hide his sinister ulterior motives.[184] Rowling wrote that the punishment itself was not meant to be unusual: “A significant difference between the wizarding governments of the United States and the UK of this time was the penalty for serious crime. Whereas British witches and wizards were sent to Azkaban, the worst criminals in America were executed.”[185] However, the manner of the sentencing is disturbing. Newt, as a foreign defendant accused of a federal crime, has questionable grounds for deserving the right of due process under the Constitution. However, Tina is an American citizen, and as such, she should have been afforded the rights listed in the Fifth and Sixth Amendment, as applicable to hearings under Judge Friendly’s dissertation. At the very least, someone should have questioned the correctness of her conviction; she was a MACUSA employee and former Auror who was demoted for caring too much about protecting No-Majs, even trying to stop non-magical threats like child abuse,[186] and her only answer to her sudden conviction is stunned, horrified silence,[187] hardly the personality of someone evilly conspiring to start a magic versus non-magic world war.

Tina is afforded even less of a hearing than Newt, as she is sentenced because she heard too much. She receives as much of a right to due process as Sirius Black: less than nothing. She does not have a lawyer to help her navigate the interrogation, she has no trial or hearing to speak of, the fact finder sentences her specifically because he needs to cover his tracks, making him a very biased fact finder, and she has no ability to bring in her sister as a witness or find someone to prove that Newt was still on a ship in the middle of the Atlantic when the first Obscurial attack took place. Furthermore, there are no checks and balances to protect her and no appeals process to question Graves’s sentencing decisions and authority to convict someone to death without any other authorization. Graves can autocratically sentence her to death without any concern for the laws of the country they live in because Tina, as well as every other American wizard, is not guaranteed the rights protected under the Fifth and Sixth Amendments of the Constitution.

Comparing the Real World to the Magical

Comparing the stories of Rowling’s characters with the hypothetical characters from Part III of this article makes the differences between the real and magical worlds even more apparent. In the real world, Sirius might still be at risk of losing his life and liberty, but, like the accused mass-murderer discussed before, he would still be protected by the due process rights in the Constitution and could ultimately be acquitted. In the other, he was still at risk of losing the same things, yet he had no opportunity to present his case and prove he was clearly framed.

Compare Newt and Tina’s hearing with the reckless defendant. In a No-Maj court, Newt and Tina would be able to present Graves with evidence that Newt’s Obscurus had not been released from the suitcase before the moment Graves found it, or that Newt and his suitcase were on a ship in the Atlantic when the first Obscurial attack occurred, clearly proving that they were not the ones who endangered human life by releasing the monster. Moreover, the requirement of an unbiased tribunal in a hearing would require someone other than a corrupted official like Graves to try their case or at least require him to seek additional authorization. But in the wizarding world, Graves easily sentenced them both without anyone questioning his motives or evidence.

Finally, compare Harry to the sympathetic offender. Under the Constitution and Judge Friendly’s requirements for a fair hearing, Harry would be able to discuss the law that supports a lenient sentence in a more structured environment and question his witnesses without having to worry about the judge or prosecution constantly interrupting him. Instead, in the wizarding world, Harry might have the law on his side, and the right to call favorable witnesses, but without knowing that he had such a right, and without a proper legal background, Harry would undoubtedly have lost his hearing had Dumbledore not appeared. Instead, he would have been expelled, had his wand broken so he would be unable to perform magic, and the series would have ended much differently.

IV. “ACCIO DUE PROCESS!

“When in doubt, go to the library.”

– Ron Weasley[188]

J.K. Rowling placed the fictional wizarding world squarely within the confines of real life’s government, laws, issues, and culture, and Harry Potter and his friends are, undoubtedly, citizens of their respective countries. And yet, even though they are citizens, they are not afforded the same legal rights as their fellow non-magical countrymen. The injustice is palpable, but beyond that unfairness is a system that is completely contrary to the American right of due process. Every time a character goes through some injustice in the legal process, they are experiencing situations that the Framers of the Constitution explicitly meant to protect against by creating the Fifth and Sixth Amendments. But the wizarding worlds’ due process issues can be fixed by guaranteeing wizard citizens the rights in the Constitution.

“All Was Not Well”[189]

The lack of protection of natural due process rights is inherently unfair. Sirius is not afforded the most basic right under due process in either of his criminal proceedings—the right to a trial. The lack of a trial in turn disallows him to receive his right to other constitutional protections like the right to counsel, the right to call and confront witnesses, and the right present to a jury of impartial peers. All of these things could have made a significant difference in his life. Instead, he ended up in jail for a crime he did not commit and became a wanted man for the rest of his life. Barty Crouch, Jr. was once just a wayward teenager who fell in with the wrong crowd and ended up in the wrong place at the wrong time. He was afforded a criminal trial but was forced to share it with notorious criminals who purposefully unnerve the court instead of defending. Barty ended up being unfairly tried by an influenced council and convicted by his biased and unforgiving father. Similarly, Harry’s lack of due process caused him to face his own biased judge, and nearly have his rights to life, liberty, and property taken away without the rights he would have been guaranteed under the Constitution. And while Tina is an American citizen, she is convicted, tried, and sentenced for a serious crime without trial, counsel, a right to bring witnesses, and the chance to object to the taking of her life without due process of law. The wizarding governments have no problem arbitrarily applying or ignoring the laws and rights their society affords to its criminal defendants, and playing with citizens’ lives, as long as it achieves some purpose for themselves.

Beyond the unfairness, wizards are experiencing situations that the Framers of the Constitution intended to prevent when they wrote the Fifth and Sixth Amendments. “The original meaning of the Due Process Clause was essentially that the federal government could not take the people’s lives, health, reputation, freedom of movement, or common law property without prior legal authorization and without following traditional judicial procedures.”[190] But all of the characters that face trials in Harry Potter do have their life, health,[191] reputation,[192] freedom of movement, or property taken or nearly taken away from them. The right to a trial by a jury representative of the accused’s peers was an essential part of English and colonial American law, with colonial juries priding themselves on being “the most democratic of the governmental institutions in the colonies.”[193] And “[i]n felony cases, nonjury trials were unknown and guilty pleas [were] infrequent.”[194] The Framers added the right to a jury in the Sixth Amendment to continue the colonies excellent interpretation of the “palladium of English liberty.”[195] In Harry Potter, though, every character finds themselves at the mercy of a biased group of fifty Ministry officials, not a jury of their equals upholding that English liberty.

The Right-to-Counsel Clause was designed to extend the British idea of allowing counsel for defendants convicted of treason to all cases where a defendant had been convicted of a felony.[196] The Framers valued the right to counsel; their “primary purpose lay in removing legal obstacles to representation by lawyers privately retained by defendants.”[197] The Supreme Court in Gideon v. Wainwright reiterated that criminal defendants unable to hire a lawyer must be provided one, [198] and even though the right is limited, it is still available, whereas in Harry Potter, its existence is moot because magic lawyers do not exist.[199] Therefore, no criminal defendant is able to hire counsel even if they can afford to do so, or ask the Ministry to connect them with a public defender that can take their case if they cannot. Even though wizards do have the ability to bring a friend into the courtroom to help represent them, the Ministry does not advertise the right. Otherwise, Harry could have written to Dumbledore, who had years of legal experience from sitting on the Wizengamot as the Chief Warlock,[200] and asked him for his help, instead of having Dumbledore miraculously show up seconds before Harry is sentenced. Nor is every wizard as lucky as Harry by having Dumbledore looking out for them because they are “the Chosen One.” Moreover, if Sirius Black, Barty Crouch, Jr., or Newt and Tina had been able to hire real lawyers to help them, they all would have had a better chance of presenting their cases and securing fairness in their criminal proceedings than they did without it in the books.

Finally, the Compulsory Process Clause, which includes the right to present favorable witnesses, was meant to “assure[ ] that the accused in a criminal case enjoy[ed] the right to call or subpoena witnesses, so that evidence available to the defense can be evaluated by a jury or, in a nonjury criminal case, by a judge.”[201] Like the right to counsel, the wizarding courts grant defendants the right to call witnesses, but they do not notify defendants that they have this right. Harry is completely surprised when he finds out he could have called in witnesses; he could have brought in his cousin, Dudley, whose life he had saved, and his Aunt Petunia, who knew enough about the wizarding world to recognize a Dementor attack to corroborate his story. Luckily, Dumbledore knew about the defendant’s right to Compulsory Process, since he was a former member of the court, and came prepared with a decent, but not necessarily credible, favorable witness.[202] But other characters were not so lucky, most notably Sirius Black. He had five to six favorable witnesses who could testify to both his story and his good character, but the Minister ignored his right to present evidence of his innocence. If Harry and Hermione had not helped him escape,[203] Sirius would have lost his life and liberty without due process of law. Every awful, unjust situation that Harry Potter characters find themselves in when they are accused of some crime is exactly what the Framers were intending to prevent with the Fifth and Sixth Amendments: a complete ignorance of the inalienable right to not be deprived of their life, liberty, or property without due process of law. Without the rights of due process as described in the Constitution, no wizard is safe from the government’s arbitrarily applied or ignored laws and sentencing guidelines. Everyone, even Harry Potter, is at risk.

B. “I solemnly swear they were up to some good”[204]

The power to fix the wizarding world rests solely in the hands of its creator, J.K. Rowling. Luckily, she has not left her world in the corrupted state we see throughout the books. The last chapter of the final book, Harry Potter and the Deathly Hollows, finds the three main characters nineteen years later living in a world where “all is well.”[205] Rowling also continued to explore the future of Harry Potter and friends in interviews, where she revealed that the well-respected character, Kingsley Shacklebolt, was voted into office as the next Minister of Magic and fought to end the corruption in the government system.[206] Rowling further extended the future into the eighth story, the play Harry Potter and the Cursed Child, where she reveals that Hermione succeeded Shacklebolt as the Minister of Magic and worked to keep the Ministry free from corruption like her predecessor.[207]

Throughout the series, Kingsley Shacklebolt is one of the best modern-day Ministry officials to take office. Over the course of his administration, Rowling proclaimed that he fired the Dementors guarding Azkaban, thus eliminating the Dementor’s Kiss as a viable punishment, ended the laws favoring pure-bloods, and restructured the Ministry system in order to eradicate corruption and modernize the overall government.[208]

Hermione Granger likely followed in Minister Shacklebolt’s footsteps. When asked by Minister Scrimgeour in the seventh book whether she would pursue a Ministry career in Magical Law, she retorted, “No, I’m not . . . I’m hoping to do some good in the world!”[209] In the Cursed Child, when the possibility of an uprising of Voldemort’s daughter, Delphi Riddle, threatens the wizarding world, Hermione, now Minister of Magic, exclaims “I will not be Cornelius Fudge on this one. I will not stick my head in the sand.”[210] Instead, the goal of her administration is to make the Ministry proactive and fair, and to basically “do some good in the world.” Rowling provides some examples of things she has achieved as a Ministry official on her Pottermore website, including her efforts to end pro-pureblooded laws and liberate house elves. [211] However, Rowling never mentions anything specific about an improvement in the wizarding legal systems. Readers know nothing about the future of the American wizarding world beyond the fact that Rappaport’s Law restricting wizard relationships with No-Majs was repealed in the 1960s.[212] It is impossible to say whether MACUSA finally adopted the Constitution their fellow American government follows, opened up relations with Congress, or even simply adopted a similar procedural system as America’s state and federal courts. It is more likely than not that the American wizarding world still functions like it does in Fantastic Beasts.

We do know that the wizarding legal system has not changed significantly. It is likely that Minister Shacklebolt could have added some structure to the trial systems by getting rid of the corrupted officials who purposefully judged cases where they intended to rule based on their bias against the defendant. However, it is unclear if Shacklebolt would have gone as far as to restructure the legal system altogether, or if he simply replaced the corrupted officials sitting on the courts. Unlike Harry, Hermione never had any direct involvement with the wizarding legal system. The closest she ever came was in the Deathly Hallows when she disguised herself as a court reporter in one of Dolores Umbridge’s Anti-Muggle-Born Wizards hearings,[213] and that experience would have made her work harder to end the pro-pureblood mentality of the Ministry, not the oppressive legal system in general. In fact, under Hermione, criminals are still sentenced to life in prison without a trial. At the end of the Cursed Child, Hermione, acting in her capacity as the Minister of Magic, sentences Voldemort’s lonely and somewhat sympathetic daughter to Azkaban the moment she catches her.[214] It is Sirius Black’s situation all over again, only this time Delphi Riddle was undeniably guilty.[215] Obviously, neither Minister Hermione nor Shacklebolt added a guaranteed right to a trial and other due process rights before the accused’s life, liberty or property is taken to wizarding law. Therefore, while Rowling has fixed some of the government’s issues, the wizarding world still does not have a guaranteed right to due process.

C. “Mischief Managed[216]

The first solution to the issues with the wizarding world’s legal systems would be to declare, preferably in writing, which rights defendants currently have in wizard court: the right to some type of lay counsel and the right to call witnesses. Awareness of rights is the simplest problem to fix, and the fact that wizards do not know what rights they have when they go into a trial or hearing is one of the biggest problems in the wizarding world. Beyond writing down the rights, all the Ministry and MACUSA would need to do is publish the declaration somewhere all wizards can read it, perhaps on the front pages of The Daily Prophet and The Daily Ghost, or a mass-mailing effort in the Owl Post.[217] This written guarantee would ensure that wizards receive at least two of the fundamental due process rights found in the U.S. Constitution.

The next problem is a bit harder to solve. There are no wizarding lawyers, so the right to counsel is ineffective unless Dumbledore shows up as defense counsel at every trial or hearing. Therefore, the wizarding world needs real wizard lawyers. Hogwarts has many elective class options; perhaps it could add a few new ones on Magical Law. To have truly effective lawyers, the wizarding world may need to open a Hogwarts School of Magical Law somewhere down the line, but for the present, a minor in Magical Law upon graduation can suffice.

The right of defendants to call witnesses and present their cases in a wizard hearing or trial would still be arbitrarily upheld, however. It is the nature of the wizard court system to allow the Chief Warlock, or any of the members of the council, to interrupt a defendant or completely ignore what they or their counsel are trying to say. Therefore, the trial’s structures must be cemented into a system more familiar to lawyers and law students, where each side has a set time to present their opening and closing statements, argue the merits of their cases, and a turn to examine witnesses. The implementation of order in the court will allow the new Hogwarts Law graduates to help their clients more efficiently and effectively, and it will give the defendants the structure they need to ensure that their due process rights are never violated.

Of course, having a well-structured trial is hardly useful if many criminal defendants can still be sentenced without the constitutional right to have one. Therefore, the Ministry and MACUSA must enact legislation that guarantees all criminal defendants the right to a trial by an impartial council. The adversarial system is the only way that the wizarding government can be sure it is not sending innocent wizards to Azkaban or sentenced innocent wizards to death or worse. If nothing else is fixed, the Ministry must address the arbitrariness of its legal system before any significant difference will be seen in the wizarding world.

Lastly, the Ministry of Magic needs a leader who is passionate about making these changes. Just as Hermione cares deeply about changing laws oppressing Muggle-born wizards and house-elves because of her personal experiences, the Minister who succeeds her needs to care about the injustice of the trial system because of the negative experiences both he and his loved one faced in their criminal proceedings. There is no one better, therefore, to change the wizarding world’s legal systems and protect the due process rights named in the Constitution than Harry Potter. In the Cursed Child, he is already the head of the Department of Magical Law.[218] Perhaps he has already changed some things regarding the wizard legal processes. Harry is “The Chosen One,” the savior of the wizarding world. Maybe while writing the Cursed Child, Rowling just forgot to mention how Harry Potter implemented all of the points listed above and saved the wizarding world from a corrupted legal system. Or maybe that will be the plot of the ninth book. Regardless, all of these things would be necessary to ensure that the wizards, though still isolated from their non-magical counterparts by the secret of magic’s existence, receive rights equal to the ones they should be afforded as citizens of their respective countries.

V. CONCLUSION: Harry Potter and the Constitution for Wizarding Kind

“And quite honestly, I’ve had enough trouble for a life time.”

– Harry Potter[219]

The wizarding worlds in Harry Potter are completely and purposefully intertwined with the real world we know. And yet, the legal systems are completely alien to the U.S. Constitution’s Due Process Clause and the rights that support it; innocent wizards are at risk of having their physical property taken so as to render them no longer magical, convicted and sent to prison without being able to fully present their case, and sentenced to death or worse without the right to a trial by a jury of their impartial peers. These injustices are unfair, not only because of their implications, but also because the wizards are citizens who should receive these rights without hesitation. Rowling has alluded to some change in the wizarding governments in general as new, uncorrupted officials take office in the later books, but she has not stated that the wizarding legal systems have changed for the better. There are several ways to fix the wizarding world’s legal systems, but the most important way is to elect a Minister of Magic who is committed to solving the legal problems the wizarding world faces. The only person capable of doing that is Harry Potter. Perhaps the ninth book will be called Harry Potter and the Constitution for All Wizarding Kind.

Author: Jessica Victoria Hidalgo

  1. “Accio” is the Summoning Spell in the Harry Potter series which makes the object named after the spell, here due process, magically fly into the being. See J.K. Rowling, Harry Potter and the Goblet of Fire 234, 345–47 (2000); Accio, Pottermore, https://www.pottermore.com/explore-the-story/summoning-charm (last visited Apr. 10, 2018).
  2. J.K. Rowling, Harry Potter and the Sorcerer’s Stone 1 (1997). The American version of the first book in the Harry Potter series is called Harry Potter and the Sorcerer’s Stone, whereas the original British title is Harry Potter and the Philosopher’s Stone. As I am more familiar with the American name, I will use it in this paper.
  3. Meet Author J.K. Rowling, Scholastic.com, http://harrypotter.scholastic.com/jk_rowling/ (last visited Apr. 10, 2018).
  4. Harry Potter, Wikipedia, https://en.wikipedia.org/wiki/Harry_Potter#Attraction (last visited Apr. 10, 2018).
  5. J.K. Rowling characteristically sticks to the rules she has laid out in her books. She rarely leaves plot holes or contradicts facts previously mentioned in the plot. In fact, she often re-introduces the same characters and objects throughout the series to re-enforce older storylines and facts. For example, trial or hearing scenes are seen in books three, four, five, seven, and in Fantastic Beasts, with each being substantially similar in their legal processes to the previous trials or hearings. Therefore, it is highly probable that the legal system’s failings are intentional on the part of Rowling and not simply overlooked plot contradictions. See, e.g., Tara Brady, Losing the Plot: Fascinating Collection of Notes, Diagrams and Tables Show How Famous Authors Including J.K. Rowling and Sylvia Plath Battled to Plan Out Their Novels Beforehand, DailyMail.com (May 19, 2013), http://www.dailymail.co.uk/news/article-2326630/Notes-diagrams-famous-authors-including-J-K-Rowling-Sylvia-Plath-planned-novels.html.
  6. For example, Hermione attempts to fight for the liberation of House Elves in the Goblet of Fire, but her organization suffered due to its unfortunate name, “S.P.E.W” or “spew” (Society for the Promotion of Elvish Welfare). Goblet of Fire, supra note 1, at 95. Harry and friends also attend both the Tri-Wizard Tournament and the Quidditch World Cup, and Rowling used the international events to explain foreign relations between different wizarding societies. Id. at 171.
  7. Some theorize that this is a sardonic reflection of Rowling’s mistrust in bureaucratic governments and irritation with legal process which stem from her own life experiences. Paul R. Joseph and Lynn E. Wolf, The Law in Harry Potter: A System Not Even a Muggle Could Love, 34 U. Tol. L. Rev. 193 (2000–03); see also, William P. MacNeil, “Kidlit” as “Law-And-Lit”: Harry Potter and the Scales of Justice, 14 L. & Lit. 545, 558–59 (2002) (describing Rowling’s defense against a plagiarism federal lawsuit involving a character named “Larry Potter” and the use of the word “Muggle”).
  8. The inciting incident of Harry’s story was when the evil Voldemort murdered his parents, and Harry’s own godfather was subsequently framed for their murder. Several beloved characters are tortured or murdered in later books, and in the series’ finale, the evil Voldemort overthrows the government and attempts to conquer the wizarding world.
  9. Rowling did not leave Harry and friends’ lives stagnant in relation to the more dramatic plots happening around them. The core of the series is a coming-of-age story; Harry, Ron, and Hermione are teenagers and rightly experience silly crushes, rebel like moody teens, and stress about homework, exams, and what to do after graduation. See J.K. Rowling, Harry Potter and the Order of the Phoenix (2004). See also, Lisa Damour, Harry the Teenager: Muggle Themes in a Magical Adolescence, in Reading Harry Potter Again: New Critical Essays 1 (Giselle Liza Anatole ed., 2009).
  10. There is even a song to portray the Ministry of Magic’s sinister undertone. Ministry of Magic, The Ministry of Magic (Indytronic Records 2008).
  11. These several characters include, but are not limited to: Harry Potter, Sirius Black, Barty Crouch, Jr., Tina Goldstein, Newt Scamander, Rubeus Hagrid, Percival Dumbledore, Stan Shunpike, and Delphini “Delphi” Riddle. See Azkaban, Harry Potter Wikia, http://harrypotter.wikia.com/wiki/Azkaban (last visited Apr. 10, 2018). A few of these characters’ stories will be discussed in further detail throughout this Article.
  12. The Differences We’ve Discovered Between British and North American Wizards, Pottermore.com, https://www. pottermore.com/features/differences-between-north-american-and-british-wizards (last visited Apr. 10, 2018).
  13. Jennie Renton, The Story Behind the Potter Legend: JK Rowling Talks About How She Created the Harry Potter Books and the Magic of Harry Potter’s World, Sydney Morning Herald (Oct. 28, 2001), http://www.accio-quote.org/articles/2001/1001-sydney-renton.htm.
  14. Sorcerer’s Stone, supra note 2, at Chapter One “The Boy Who Lived,” & Chapter Two “The Vanishing Glass.”
  15. Id. at Chapter Four “The Keeper of the Keys.”
  16. Sorcerer’s Stone, supra note 2, at Chapter One “The Boy Who Lived.” “‘A Muggle,’ said Hagrid. ‘Its what we call nonmagic folk like them.’” Id. at 65.
  17. J.K. Rowling, Harry Potter and the Prisoner of Azkaban (1999). Dementors are terrifying creatures that can suck the soul from their victims, leaving them alive, but as little more than a catatonic shadow of their former selves. The punishment, known as the Dementor’s Kiss, is often described as a fate worse than death for its lasting repercussions on the victim. Everything You Need to Know About the Dementor’s Kiss, Pottermore.com, https://www.pottermore. com/features/everything-you-need-to-know-about-the-dementors-kiss (last visited Jan. 30, 2017).
  18. Goblet of Fire, supra note 1, at 581–604.
  19. In the original British versions of the books, the title is the Minister for Magic. However, as I am more familiar with the American title, Minister of Magic, I use it here.
  20. Goblet of Fire, supra note 1, at Chapter Thirty-Two “Flesh, Blood, and Bone,” Chapter Thirty-Three “The Death Eaters,” Chapter Thirty-Four “Priori Incantatem,” Chapter Thirty-Five “Veritaserum,” & Chapter Thirty-Six “The Parting of Ways.”
  21. Order of Phoenix, supra note 9, at Chapter One “Dudley Demented,” Chapter Two “A Peck of Owls,” Chapter Seven “The Ministry of Magic,” & Chapter Eight “The Hearing.”
  22. J.K. Rowling, Harry Potter and the Half-Blood Prince 579–96 (2005).
  23. Id. at 39, 490; Order of Phoenix, supra note 9, at 841.
  24. J.K. Rowling, Harry Potter and the Deathly Hallows (2007).
  25. See J.K. Rowling et al., Harry Potter and the Cursed Child Parts One and Two: Special Rehearsal Edition Script (2016). The lukewarm-to-poor reviews of the play, inconsistencies with the book series, and mixed authorship of the screenplay has created a debate among fans of whether the Cursed Child is canonical with the rest of the Harry Potter series. See J.K. Rowling (@jk_rowling), Twitter (June 29, 2015, 5:34 A.M.), https://twitter.com/jk_rowling/status/615498601809211393 (“The story of #CursedChild should be considered canon.”); Kim Renfro, Some ‘Harry Potter’ Fans are so Disappointed with the New Story that They’re Refusing to Call it Canon, Bus. Insider (Aug. 1, 2016), http://www.businessinsider.com/harry-potter-cursed-child-reactions-2016-7 (describing fans’ reactions to the play); SuperCarlinBrothers, Is “Harry Potter and the Cursed Child” Canon?, YouTube (Mar. 20, 2018), https://www.youtube.com/watch?v=RRNXL-Nky8U (providing an overview of the major issues with the play and J.K. Rowling’s conflicting statements on its canonical status). For the purposes of this article, I consider Harry Potter and the Cursed Child a part of the Harry Potter series.
  26. Id. at 29–32, 67.
  27. Id.
  28. J.K. Rowling, Fantastic Beasts and Where to Find Them: The Original Screenplay (2016).
  29. Sorcerer’s Stone, supra note 2, at 83; J.K. Rowling & Newt Scamander, Fantastic Beasts and Where to Find Them: Hogwarts Library Books (2001); Magiozoologist, Harry Potter Wiki, http://harrypotter.wikia.com/wiki/Magizoologist (last visited April 9, 2018).
  30. J.K. Rowling, The Magical Congress of the United States of America (MACUSA), Pottermore.com, https://www. pottermore.com/writing-by-jk-rowling/macusa; Fantastic Beasts Screenplay, supra note 28, at 33.
  31. Fantastic Beasts Screenplay, supra note 28, at 142–49.
  32. Id. at 147–51.
  33. Id. at 176.
  34. Id. at 256–57; Sorcerer’s Stone, supra note 2, at 128; Deathly Hallows, supra note 24, at 148.
  35. Sorcerer’s Stone, supra note 2, at Chapter Five “Diagon Alley.”
  36. Id.
  37. Id. at 84.
  38. Sorcerer’s Stone, supra note 2, at 85.
  39. Id. at 84–85.
  40. Order of the Phoenix, supra note 9, at 483.
  41. See e.g., Sorcerer’s Stone, supra note 2, at 139; see also, SuperCarlinBrothers, The Hogwarts Express Explained, YouTube (Dec. 5, 2017), https://www.youtube.com/watch?v=rUPrY42nBPg.
  42. Sorcerer’s Stone, supra note 2, at 178.
  43. International Statute of Secrecy, Harry Potter Wiki, http://harrypotter.wikia.com/wiki/International_Statute_of_Wizarding_Secrecy (last visited Apr. 10, 2018) (noting that the statute was signed into legislation in 1692, making its premise antiquated, to say the least).
  44. The fact that both the poor Weasleys and wealthy Malfoys’ homes are in rural areas shows that both sides of the wizard class spectrum are isolated from the Muggle world. J.K. Rowling, Harry Potter and the Chamber of Secrets, Chapter Three “The Burrow” (1999); Deathly Hallows, supra note 24, at Chapter Twenty-Three “Malfoy Manor” & Chapter Sixteen “Godric’s Hollow.” Prisoner of Azkaban, supra note 17, at Chapter Ten “The Marauder’s Map”.
  45. Order of the Phoenix, supra note 9, at Chapter Four “Number Twelve, Grimmauld Place,” & Chapter Six “The Noble and Most Ancient House of Black.”
  46. Harry and Hermione are prime examples of this. They leave Hogwarts every summer and resume their non-magical lives for a few months, and it shows in their interacts with the Muggle world. Ron, a pure-blooded wizard, calls Harry while he is living with the Dursleys for the summer. Prisoner of Azkaban, supra note 17, at 3–4. He screams at Harry’s Uncle Vernon as if “speaking from opposite ends of a football field” because he does not know how to use a telephone. Id. Harry compares the situation to if Hermione would have called: “Hermione . . . had Muggle parents [and] knew perfectly well how to use a telephone.” Id. at 5. Hermione also goes on a holiday in France with her dentist parents, and realizes that it might not be the best idea to send a broomstick cleaning kit through Customs. Id. at 11.
  47. J.K. Rowling, Ministers for Magic, Pottermore.com, https://www.pottermore.com/writing-by-jk-rowling/ ministers-for-magic (last visited Jan. 30, 2017).
  48. Id.
  49. Id.
  50. Id.
  51. Many legal scholars argue over what initially caused the corruption, with most blaming Voldemort and the state of emergency he creates multiple times in the wizarding world, and it is indisputable that the Ministry of Magic is one dark lord away from a totally corrupted maelstrom. See e.g., Benjamin H. Barton, Harry Potter and the Half-Crazed Bureaucracy, 104 Mich. L. Rev. 1523 (2006); Susan Hall, Harry Potter and the Rule of Law: The Central Weakness of Legal Concepts in the Wizard World, in Reading Harry Potter: Critical Essays 147 (Giselle Liza Anatole ed., 2003); Mary Liston, The Rule of Law Through the Looking Glass, 21 Law & Lit. 42 (2009); MacNeil, supra note 7; Aaron Schwabach, Harry Potter and the Unforgivable Curses: Norm-formation, Inconsistency, and the Rule of Law in the Wizarding World, 11 Rogers Williams U. L. Rev. 309 (2006).
  52. See, e.g., Prisoner of Azkaban, supra note 17 at 416–17 (“‘The Kiss will be performed immediately?’ [Snape asked]. ‘As soon as [the executioner] returns with the dementors. This whole [Sirius] Black affair has been highly embarrassing. I can’t tell you how much I’ve looked forward to informing the Daily Prophet that we’ve got him at last,’ [replied Fudge].”); SuperCarlinBrothers, Why Cornelius Fudge is the Worst, Youtube (Aug. 22, 2017), https://www.youtube.com/watch?v=VdoJE4b636A.
  53. For example, Lucius Malfoy, the father of Harry’s sworn enemy in school, is able to bribe many Ministry officials on a number of occasions when he wants some action taken to further his own self-interest. See e.g., id. at 125, 328; Order of the Phoenix, supra note 9, at 155. The worst corrupted Ministry official by far, however, is Dolores Umbridge. She seizes the power to control Hogwarts and puts Muggle-born wizards on trial as if inheriting a dormant magic gene is a crime. See id. at Chapter Fifteen “The Hogwarts High Inquisitor”; see Deathly Hallows, supra note 24, at Chapter Twelve “Magic is Might” & Chapter Thirteen “The Muggle-born Registration Commission.”
  54. Chamber of Secrets, supra note 44, at 39.
  55. Wizengamot, Harry Potter Wiki, http://harrypotter.wikia.com/wiki/Wizengamot (last visited Jan. 30, 2017); Council of Magical Law, Harry Potter Wiki, http://harrypotter.wikia.com/wiki/Council_of_Magical_Law (last visited Jan 30. 2017); Order of Phoenix, supra note 9, at 95.
  56. Order of Phoenix, supra note 9, at Chapter Eight “The Hearing.”
  57. See id.; Goblet of Fire, supra note 1, at 594–97.
  58. Interrogators, Harry Potter Wiki, http://harrypotter.wikia.com/wiki/Interrogator (last visited Jan. 30, 2017).
  59. Order of the Phoenix, supra note 9, at 142.
  60. Wizengamot, supra note 55.
  61. See Order of Phoenix, supra note 9, at 124–27; British Ministry of Magic Headquarters, Harry Potter Wiki, http://harrypotter.wikia.com/wiki/British_Ministry_of_Magic_Headquarters (last visited Jan. 30, 2017). After Voldemort returns in the fifth book, the Ministry of Magic’s entrance is moved to the Men and Women bathrooms in Whitehall, a British government building. Deathly Hallows, supra note 24, at 240–42.
  62. Ministers for Magic, supra note 47; Half-Blood Prince, supra note 22, at 9.
  63. Cursed Child, supra note 25, at 72.
  64. Ministers for Magic, supra note 47.
  65. I say as of late because Rowling’s writings on the Minsters of Magic imply that the ministers before Cornelius Fudge were better at acting as an equal with the Prime Minister, especially Minister Leonard Spencer Moon, who “enjoyed a good working relationship with Winston Churchill.” Id.
  66. Half-Blood Prince, supra note 22 at 9; Ministers for Magic, supra note 47.
  67. Fantastic Beasts Screenplay, supra note 28, at 33.
  68. Id. at 76–77; 679 West 24th Street, Harry Potter Wiki, http://harrypotter.wikia.com/wiki/679_West_24th_Street (last visited Apr. 15, 2018).
  69. Fantastic Beasts Screenplay, supra note 28, at 280 (showing Queenie shopping at a No-Maj owned bakery).
  70. For example, Tina and Queenie easily change their appearances to disguise themselves as flappers when they go undercover in a wizard speakeasy, and Queenie even designs her own clothes based on the No-Maj fashion styles of the day. Id. at 79, 189. Even better, they know how to blend in to a crowd of No-Majs, like when Tina spies on an anti-magic protest without calling attention to herself, something many British wizards are completely unable to do. Id. at 7–79, 189; See Sorcerer’s Stone, supra note 2, at 3–9 (“As [Mr. Dursley] sat in the usual morning traffic jam, he couldn’t help noticing that there seemed to be a lot of strangely dressed people about. People in cloaks. . . . Mr. Dursley was enraged to see that a couple of them weren’t young at all; why, that man had to be older than he was, and wearing an emerald-green cloak!”).
  71. Magical Congress, supra note 30.
  72. Id.
  73. Fantastic Beasts Screenplay, supra note 28, at 38; Driving Directions from Woolworth Building to New York City Courthouses, Google Maps, http://maps.google.com (follow “Directions” hyperlink; then search starting point filed for “Woolworth Bldg, New York, NY 10007” and search destination field for “Tweed Courthouse, 52 Chambers St, New York, NY 10007”).
  74. J.K. Rowling, History of Magic in North America, Pottermore.com, https://www.pottermore.com/collection-episodic/history-of-magic-in-north-america-en (last visited Jan. 30, 217); J.K. Rowling, Rappaport’s Law, Pottermore.com, https://www.pottermore.com/writing-by-jk-rowling/rappaports-law-en (last visited Jan. 30, 2017).
  75. Rappaport’s Law, supra note 74.
  76. Magical Congress, supra note 30.
  77. Id.
  78. In her writing on the Magical Congress, Rowling tells a brief story about the Revolutionary War and the tensions wizards faced in deciding whether to break their ties with their British wizarding counterparts as the colonist broke their ties with the British crown. Id. Because there is acknowledgment of the Revolutionary War occurring in the Harry Potter universe, and the America seen in the Fantastic Beasts film is independent of Great Britain and modeled on America in the 1920s, it is therefore plausible that the Constitution must exist in the wizarding world of the Harry Potter books.
  79. Magical Congress, supra note 30.
  80. Fantastic Beasts Screenplay, supra note 28, at 156–61.
  81. Id.
  82. J.K. Rowling, Harry Potter Prequel (2008); See Harry Potter Prequel, Harry Potter Wiki, http://harrypotter. wikia.com/wiki/Harry_Potter_prequel (last visited Apr. 22, 2017).
  83. Harry Potter Prequel, supra note 82; Harry Potter Prequel, supra note 82.
  84. See e.g., Prisoner of Azkaban, supra note 17, at 205–08.
  85. Arthur Weasley tells Harry that wizards who are purposefully exploding Muggle plumbing systems as dangerous Anti-Muggle pranks will likely not face justice, as the Muggles do not know that the issues are magic-related and the Ministry is not terribly interested in solving the case. Id. at 133.
  86. See e.g., id. at 208.
  87. See e.g., id.
  88. Goblet of Fire, supra note 1, at 3–4.
  89. Id.
  90. Joe Fassler, What It Really Means to be ‘Kafkaesque’, The Atlantic (Jan. 15, 2014), https://www.theatlantic.com/ entertainment/ archive/2014/01/what-it-really-means-to-be-kafkaesque/283096/.
  91. Harry Potter and the Deathly Hallows (Warner Bros. Pictures 2011).
  92. This is a spoof of the in-universe book: Hogwarts: A History. Sorcerer’s Stone, supra note 2, at 145.
  93. U.S. Const. amend. V; U.S. Const. amend. IV; U.S. Const. art. III, § 2; The Declaration of Independence para. 2 (U.S. 1776).
  94. U.S. Const. amend. V; U.S. Const. amend. IV; U.S. Const. art. III, § 2.
  95. The Text of the Magna Carta, Fordham U. Internet Hist. Sourcebooks Project, http://sourcebooks. fordham.edu/source/magnacarta.asp (last visited Jan. 30, 2017); The Heritage Guide to the Constitution 439 (David S. Forte & Matthew Spalding, eds., 2nd ed. 2014).
  96. Leonard W. Klingen, Our Due Process Debt to Magna Carta, 90 Fla. B. J. 16 (2016).
  97. Heritage Guide, supra note 95, at 439–40.
  98. Id. at 440.
  99. Andrew Hamm, Colleen Sheehan Explores Madison’s Vision for the Bill of Rights to Commemorate 225th Anniversary of Ratification, SCOTUSblog (Dec. 8, 2016), http://www.scotusblog.com/2016/12/colleen-sheehan-explores-madisons-vision-for-the-bill-of-rights-to-commemorate-225th-anniversary-of-ratification/; The Federalist No. 84 (Alexander Hamilton).
  100. Heritage Guide, supra note 95, at 440; Bill of Rights: Document 11: House of Representatives, Amended Constitution, The U. of Chicago, http://press-pubs.uchicago.edu/founders/documents/ bill_of _rightss11.html (last visited Mar. 30, 2018).
  101. U.S. Const. art. III, § 2; U.S. Const. amend. VI.
  102. U.S. Const. amend. V (emphasis added).
  103. Heritage Guide, supra note 95, at 430–48. This phrase in the Fifth Amendment is referred to as the Due Process Clause. Id.
  104. U.S. Const. amend. VI.
  105. See generally, Heritage Guide, supra note 95, at 451–54, 457–63. Article III Section 2 also adds, “The Trial of all Crimes . . . shall be by Jury.” U.S. Const. art. III, § 2, cl. 3.
  106. Goblet of Fire, supra note 1, at Chapter Five “The Pensive.”
  107. Harry’s subpoena letter summons him to the Ministry for a criminal disciplinary hearing with an Interrogator; Harry’s upgraded hearing includes the entire Wizengamot as his judge instead of a single Interrogator, but it is still classified as a hearing; and Newt and Tina’s interview with Interrogator Graves is clearly the same process that Harry was meant to endure based on the description in his original letter. Order of Phoenix, supra note 9, at 26, 32, 137–38; Fantastic Beasts Screenplay, supra note 28, at 160.
  108. Judge Henry J. Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267 (1975) (quoting Wolff v. McDonnell, 418 U.S. 539, 557–58 (1974)).
  109. Id. at 1270 (quoting Kenneth Culp Davis, § 7.01, in 1 Administrative Law Treatise 407 (2nd ed. 1980)).
  110. Id. at 1270–71. “Broad as that definition is, it may not be broad enough. Although the term ‘hearing’ has an oral connotation, I see no reason why in some circumstances a ‘hearing’ may not be had on written materials only. In addition the term ‘tribunal’ is hardly apt to convey the notion that hearing requirements may be applied to bodies as diverse as an administrative law judge on the one hand or a city council on the other.” Id.
  111. Id. at 1279 n.71.
  112. Friendly, supra note 108, at 1280–91.
  113. The right, or lack of a right, to be protected against self-incrimination is also a major issue in Harry Potter’s world due to the existence of Veritaserum, a powerful and illegal truth serum, but because there is very little information about it in the books, I will not discuss it here.
  114. 1 Crim. Proc. Checklists, 5th Amend. § 4:4 (Nov. 2017).
  115. See Gideon v. Wainwright, 372 U.S. 335 (1963).
  116. 28 U.S.C. § 455(a–b) (2016).
  117. Fed. R. Civ. P. 47 (2018).
  118. Benjamin Nathan Cardozo, Encyclopædia Britannica, https://www.britannica.com/biography/Benjamin-Nathan-Cardozo (last visited May 9, 2018) (noting that Justice Cardozo was chief judge of the New York Court of Appeals in 1926).
  119. Palko v. Connecticut, 302 U.S. 319, 325 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)).
  120. Id.
  121. Order of the Phoenix, supra note 9, at 138.
  122. Id.
  123. This is the slogan used on wanted posters in British wizard society and is especially used when Sirius Black escapes from Azkaban in the beginning of the third book and film. See, e.g., Harry Potter and the Prisoner of Azkaban (Warner Bros. Pictures 2004).
  124. Prisoner of Azkaban, supra note 17, at Chapter Ten “The Marauder’s Map.”
  125. Id. at 205.
  126. Prisoner of Azkaban, supra note 17, at 205, 392.
  127. Id. at 205–08.
  128. Id. at 207.
  129. Id. at 208.
  130. Id.
  131. Prisoner of Azkaban, supra note 17, at 208.
  132. Id. at 66.
  133. Id. at 365.
  134. Id. at 365.
  135. Id. at 379.
  136. Prisoner of Azkaban, supra note 17, at 365.
  137. Id. at 363.
  138. Sirius Black was the sole heir of the vast Black family fortune, so he definitely would have had the money to hire the best lawyers to defend his case. Order of the Phoenix, supra note 9, at Chapter Six “The Noble and Most Ancient House of Black.”
  139. Goblet of Fire, supra note 1, at 526; Sirius Black, Harry Potter Wiki, http://harrypotter.wikia.com/wiki/Sirius_ Black (last visited Jan. 28, 2017).
  140. Prisoner of Azkaban, supra note 17, at 389.
  141. Id. at 247.
  142. The six witnesses were Harry, Ron, Hermione, Professor Lupin (who was “deep in the forest, unable to tell anyone anything [until] he was human again” because he had transformed into a werewolf), Professor Dumbledore (who was not present when Sirius explained his side of the story but felt that he could vouch for his innocence after he learned the details from Harry and Hermione), and Professor Snape (who was present as all of the events unfolded and was a “brave” enough man not to lie under oath despite his long-standing grudge with Sirius). Id. at 378–85.
  143. Id. at 392–93.
  144. Id. at 389.
  145. Wizengamot, supra note 55; Goblet of Fire, supra note 1, at 526.
  146. Goblet of Fire, supra note 1, at 603.
  147. Id. at 594.
  148. Id. The Lestranges were brothers Rastaban and Rodolphus Lestrange, and Rodolphus’ wife, Bellatrix. Id.
  149. Id. at 603.
  150. Id.
  151. Goblet of Fire, supra note 1, at 594.
  152. Id.
  153. Id.
  154. Id.
  155. Id. Years later, Barty returns as a hardened criminal, murderer, and prison escapee, and faces the same immediate sentencing to the Dementor’s Kiss as Sirius Black. Id. at 703.
  156. See Hall, supra note 51; Liston, supra note 51, at 147–48.
  157. Harry Potter and the Deathly Hallows Part I (Warner Brothers 2010). This is another slogan written on wanted posters in British wizarding society, specifically used to name Harry Potter as public enemy number one in the seventh book and seventh and eighth movies.
  158. Chamber of Secrets, supra note 44, at 19.
  159. Id. at 20–21. Notably, the Ministry does not investigate who used the magic at the address, or allow Harry to present evidence that he was not the culprit. See Joseph & Wolf, supra note 7, at 195.
  160. Prisoner of Azkaban, supra note 17, at 28–30.
  161. Id. at 45; Pro-Quidditch star Ludo Bagman received similar treatment in his criminal trial in the Goblet of Fire. He was acquitted of giving information to a Voldemort spy because he was famous. Goblet of Fire, supra note 1, at 593; See e.g., Schwabach, supra note 51, at 344–45.
  162. Order of the Phoenix, supra note 9, at Chapter One “Dudley Demented” & Chapter Thirty-Five “Fight and Flight.”
  163. Id. at 140.
  164. Id. Fudge is also paranoid that Harry and Dumbledore are conspiring to overthrow him. “‘You saw Cornelius Fudge after You-Know-Who came back, Harry. Well he hasn’t shifted his position at all. He’s absolutely refusing to believe it’s happened’ . . . ‘You see, Fudge thinks Dumbledore’s plotting to overthrow him. He thinks Dumbledore wants to be Minister of Magic.’” Id. at 93.
  165. See also Order of the Phoenix, supra note 9, at 73 (stating that newspaper writers “slip [Harry] in, like [he’s] a standing joke” as they try to discredit his claims).
  166. Order of the Phoenix, supra note 9, at 26, 32, 137–38.
  167. Id. at Chapter Eight “The Hearing.”
  168. Id. at 148.
  169. Id. at 142–43.
  170. Id. at 139.
  171. Order of the Phoenix, supra note 9, at 149.
  172. Id. In addition to Fudge, Dolores Umbridge, the person who sent the Dementors to attack Harry in order to discredit him and expel him from Hogwarts, is sitting on the court. She is perhaps more biased than Fudge in that she was the actual perpetrator of the crime, and did not care if anyone find out as long as Harry was expelled. She was the least qualified, un-impartial official to sit on the hearing council, and yet, she was judging Harry’s case. Id. at 134–39.
  173. Id. at 150–51.
  174. See id. at 26–27 (“[Fifteen-year old] Harry’s temporarily stupefied brain seemed to reawaken. [The letter read:] Ministry representatives will be calling at your place of residences shortly to destroy your wand. There was only one thing for it. He would have to run—now. Where he was going to go, Harry didn’t know, but he was certain of one thing: At Hogwarts or outside it, he needed his wand.”).
  175. This is a slogan used on wanted posters in American wizarding society and is used on screen to specifically refer to Newt and Tina after their escape from execution. Fantastic Beasts and Where to Find Them (Warner Bros. Pictures 2016).
  176. Fantastic Beasts Screenplay, supra note 28, at 1.
  177. Id. at 31–34.
  178. Id. at 147–49.
  179. Id. at 157–62.
  180. Id. at 159–60.
  181. Fantastic Beasts Screenplay, supra note 28, at 157–61.
  182. Id. at 161.
  183. Fantastic Beasts Screenplay, supra note 28, at 161. (“Graves (to the executioners): ‘Just do it immediately. I will inform President Piquery myself.’”).
  184. Id. at 161, 256–57. See, e.g., Sara Boboltz, Let’s Talk About That Messed-up Death Penalty in Fantastic Beasts for a Minute, Huffington Post (Nov. 19, 2016), http://www.huffingtonpost.com/entry/lets-talk-about-that-messed-up-death-penalty-in-fantastic-beasts-for-just-a-minute_us_582f07cde4b058ce7aaa9c28.
  185. Magical Congress, supra note 30.
  186. Fantastic Beasts Screenplay, supra note 28, at 193.
  187. Id. at 161.
  188. Harry Potter and the Chamber of Secrets (Warner Bros. Pictures 2002).
  189. The last line of the last book is “All was well.” Deathly Hallows, supra note 24, at 759.
  190. Heritage Guide, supra note 95, at 441.
  191. Prisoners’ mental health is detrimentally affected when convicted to the Dementor’s Kiss or otherwise sentenced to life in Azkaban. See, e.g., Prisoner of Azkaban, supra note 17, at 188 (“The fortress is set on a tiny island, way out to sea, but they don’t need walls and water to keep prisoners in, not when they’re all trapped inside their own heads, incapable of a single cheerful thought [because of the effect of the Dementors]. Most go mad within weeks.”).
  192. For example, Minister Fudge tries to expel Harry to delegitimize his credibility when he says Voldemort has returned. Order of the Phoenix, supra note 9, at 146–51.
  193. Heritage Guide, supra note 95, at 451.
  194. Id.
  195. Id.
  196. Id. at 462.
  197. Id.
  198. Gideon v. Wainwright, 372 U.S. 335, 339-40 (1963).
  199. Wizengamot, supra note 55.
  200. See, e.g., id; Order of Phoenix, supra note 9, at 95. The Chief Warlock is similar to the Chief Justice on the Supreme Court.
  201. Heritage Guide, supra note 95, at 460.
  202. Order of the Phoenix, supra note 9, at 143–44 (describing Dumbledore’s best witness’ testimony: “Harry wished [Ms. Figg] had thought to change out of her carpet slippers.” . . . “‘What did they look like?’ said Madam Bones, narrowing her eyes so that the monocle’s edges disappeared into her flesh. ‘Well, one was very large and the other one rather skinny – ’ ‘No, no,’ said Madam Bones impatiently, ‘the dementors . . . describe them.’”).
  203. Prisoner of Azkaban, supra note 17, at Chapter Twenty-One “Hermione’s Secret.”
  204. “I solemnly swear I am up to no good” is a phrase used as a secret password throughout the series. See, e.g., Prisoner of Azkaban, supra note 17, at 192.
  205. Deathly Hallows, supra note 24, at Epilogue “Nineteen Years Later.”
  206. Id. at 745; Bloomberg Live Chat with J.K. Rowling, Harry Potter Wiki, http://harrypotter.wikia.com/wiki/ Bloomsbury_Live_Chat (last visited Jan. 30, 2017); Ministers for Magic, supra note 47.
  207. Cursed Child, supra note at 25, at 31.
  208. Kingsley Shacklebolt, Harry Potter Wiki, http://harrypotter.wikia.com/wiki/Kingsley_Shacklebolt (last visited Jan. 30, 2017); Things You May Not Have Noticed About Hermione, Pottermore.com, https://www.pottermore.com/ features/things-you-may-not-have-noticed-about-hermione (last visited Apr. 10, 2018).
  209. Deathly Hallows, supra note 24, at 124–25.
  210. Cursed Child, supra note 25, at 67.
  211. Id. at 67; Hermione, supra note 208; Bloomberg Live Chat, supra note 206.
  212. Magical Congress, supra note 30.
  213. Deathly Hallows, supra note 24, at 256–65.
  214. Cursed Child, supra note 25, at 293.
  215. Id. at Part Two, Act Four, Scene Eleven. Most of the characters in the play, including Hermione, were personally aware of and wrapped up in Delphi Riddle’s Back-to-the-Future-esque scheme to go back in time and save Voldemort.
  216. “Mischief Managed” is another phrase used as a secret password throughout the series. See, e.g., Prisoner of Azkaban, supra note 17, at 193–94.
  217. The Daily Prophet is the largest wizarding newspaper in England, while the Owl Post is the wizard equivalent of the postal service. See Sorcerer’s Stone, supra note 2, at 77. The New York Ghost is an American newspaper. Fantastic Beasts Screenplay, supra note 28, at 41.
  218. Cursed Child, supra note 25, at 31.
  219. Deathly Hallows, supra note 24, at 746.