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Due Process Is Vital to Freedom
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“No person shall … be deprived of life, liberty, or property, without due process of law…” — Fifth Amendment to the U.S. Constitution.

The clash in American history between liberty and safety is as old as the republic itself. As far back as 1798, notwithstanding the lofty goals and individualistic values of the Declaration of Independence and the Constitution, the same generation — in some cases the same human beings — that wrote in the First Amendment that “Congress shall make no law … abridging the freedom of speech” enacted the Alien and Sedition Acts, which punished speech critical of the government.

Similarly, the Fifth Amendment’s guarantee of due process has been ignored by those in government charged with enforcing it when they deal with a criminal defendant whom they perceive the public hates or fears. So it should come as no surprise that no sooner had the suspect in the recent New Jersey and New York City bombings been arrested than public calls came to strip him of his rights, send him to Gitmo and extract information from him. This is more Vladimir Putin than James Madison.

I have often argued that it is in times of fear — whether generated by outside forces or by the government itself — when we need to be most vigilant about protecting our liberties. I make this argument because when people are afraid, it is human nature for them to accept curtailment of their liberties — whether it be speech or travel or privacy or due process — if they become convinced that the curtailment will keep them safe. But these liberties are natural rights, integral to all rational people and not subject to the government’s whim.

I can sacrifice my liberties, and you can sacrifice yours, but I cannot sacrifice yours; neither can a majority in Congress sacrifice yours or mine.
The idea that sacrificing liberty actually enhances safety enjoys widespread acceptance but is erroneous. The Fort Hood massacre, the Boston Marathon killings, the slaughters in San Bernardino and Orlando, and now the bombings in New Jersey and New York all demonstrate that the loss of liberty does not bring about more safety.

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The loss of liberty gives folks the false impression that the government is doing something — anything — to keep us safe. That impression is a false one because in fact it is making us less safe, since a government intent on monitoring our every move and communication loses sight of the moves and communications of the bad guys. As well, liberty lost is rarely returned. The Patriot Act, which permits federal agents to bypass the courts and issue their own search warrants, has had three sunsets since 2001, only to be re-enacted just prior to the onset of each — and re-enacted in a more oppressive version, giving the government more power to interfere with liberty, and for a longer period of time each time.
We know from the Edward Snowden revelations and the National Security Agency’s own admissions that the NSA has the digital versions — in real time — of all telephone calls, text messages and emails made, sent or received in the U.S. So if the right person is under arrest for the bombings last weekend, why didn’t the feds catch this radicalized U.S. citizen and longtime New Jersey resident before he set off his homemade bombs? Because the government suffers from, among other ailments, information overload. It is spread too thin. It is more concerned with gathering everything it can about everyone — “collect it all,” one NSA email instructed agents — than it is with focusing on potential evildoers as the Fourth Amendment requires.

Why do we have constitutional guarantees of liberty?

The Constitution both establishes the federal government and confines it. It presents intentional obstacles in the path of the government. Without those obstacles, we might be safe from domestic harm, but who would keep us safe from the government? Who would want to live here if we had no meaningful, enforceable guarantees of personal liberties? When our liberties are subject to the needs of the police, we will end up in a police state. What does a police state look like? It looks like the Holocaust and communism.

Everyone who works in government has taken an oath to uphold the Constitution. Hence, it is distressing to hear lawmakers calling for the abolition of due process for certain hateful and hurtful defendants. Due process — fairness from the government, the right to silence, the right to counsel and the right to a jury trial with the full panoply of constitutional requirements and protections — is vital to our personal liberties and to our free society as we have known it.

If anyone who appears to have been motivated to attack Americans or American values based on some alleged or even proven foreign motivation could be denied the rights guaranteed to him under the Constitution by a government determination before trial, then no one’s rights are safe.

The whole purpose of the guarantee of due process is to insulate our liberties from subjective government interference by requiring it in all instances when the government wants life, liberty or property — hence the clear language of the Fifth Amendment. The star chamber suggested by those who misunderstand the concept of guaranteed rights is reminiscent of what King George III did to the colonists, which was expressly condemned in the Declaration of Independence and which sparked the American Revolution.

Supreme Court Justice Felix Frankfurter once wrote that the history of American freedom is, in no small measure, following fair procedures — which means enforcing the guarantee of due process. Without due process for those we hate and fear — even those whose guilt is obvious — we will all lose our freedoms.

Copyright 2016 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Civil Liberties, Constitutional Theory 
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  1. Extra-judicial assassination of foreigners seems to be commonplace wisdom in federal government circles.

    Then there was 9/11, a criminal event in which due process, rules for preservation of evidence, and a public trial of the evidence were thrown out the window by a neocon cabal led by George W Bush.

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  2. Referring to the suspect in the NY/NJ bombings, you mention ” public calls came to strip him of his rights, send him to Gitmo and extract information from him. You characterise this as ” more Vladimir Putin than James Madison. ”
    What absolute garbage. Vladimir Putin has never sent anyone to Guantanamo Bay or ordered American citizens stripped off their rights. The two culprits are George Bush II and Barrack Obama. These are the actual politicians who have permitted such policies. Yet you do not mention them and instead try to blame a Russian politician who has ABSOLUTELY NOTHING to do with it.
    This is all too typical of those who write for the American MSM. Blame Putin and the Russians for all and everything. Don’t mention the real culprits.
    You have lost my respect, Mr Napolitano, and I doubt I will read any more of your articles.

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    • Agree: CalDre
    • Replies: @MEexpert
    You probably should stop reading his articles since you don't comprehend them. He did not literally mean that Mr. Putin sent anyone to Guantanamo. That was an example of the Russian oppressive behavior instead of that of a free country. A little sarcasm perhaps.

    I find Judge Napolitano's article very informative and factual.
  3. I wrote a satire on China Daily Forum regarding West’s perception of “Freedom.” If you like it, you can have it:

    West: The Paragon, The Epitome, The Quentessence of Freedom

    [MORE]

    Infinitely boundless are the freedoms of the West, so much that I am inspired to qualify and quantify them, not just to bask in the knowledge of its existence, but to attempt to convince the rest of the world of how they too can become a free utopia by becoming acolytes of our ways.

    Let us first discuss food. Let’s say someone gets hungry and wants to get some food. Well, he will have so many choices! He can hop over to MacDonald’s and buy a Big Mac, fries, and soda. Don’t feel like MacDonald’s? Well, you can drive over to Burger King and get a Whopper with fries and soda! Not interested? Run over to Taco Bell, or Kentucky Fried Chicken, or Carl’s Jr., or Del Taco, or Wendy’s, or Popeye’s Chicken, or Pizza Hut, or Domino’s Pizza! We are so free that we have dozens of restaurant choices!

    Now, let’s consider television. Let’s say you want some entertainment; well, you can flip on the cable or satellite television and watch MTV! Not a fan? How about HBO! Not intrigued? Flip on Fox Network instead, or NBC, or Nickelodeon, or Lifetime, or PBS, or the Discovery Channel, or CBS, or ABC! The choices are endless!

    Now let’s consider liquors. Let’s say a Westerner wants some extra hard entertainment. Well, he can purchase a bottle of Jack Daniels. Not interested? How about Goldschlager, or Hennessey, or Crown Royal! You have around one hundred choices! True Western freedom!

    Tired of you wardrobe? Well, you will have a field-day picking your clothes! There is a plethora of brand choices: Levi’s, Dockers, Versace, Armani, Wal-Mart, K-Mart, Target, Lee, Calvin Klein, Hugo Boss, and many more!

    And this is just the tip of the iceberg. Just think of the dozens of candies one can choose from, the huge volume of movies to choose from, the large variety of cigarette brands to smoke, the variety of car brands and models to select, the variety of hairstyles to sport, the variety of nail polish colors to wear as well as other makeup options, the variety of sunglasses to buy, the variety of video games to play, the diversity of sodas to drink, the color options for your bed sheets, the dozens of hip-hop and rock & roll bands to select from, the plethora of Nike sneaker colors and styles to invest in, and so forth. The level of freedom in the West is mind-boggling!

    Of course, the most mind-boggling fact of all is not our freedom, but the fact that China too can possess our level of freedom! Quintessential freedom is not to be exclusively owned by the West, but is for the rest of the world too – you just have to be willing to embrace it.

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  4. MEexpert says:
    @Verymuchalive
    Referring to the suspect in the NY/NJ bombings, you mention " public calls came to strip him of his rights, send him to Gitmo and extract information from him. You characterise this as " more Vladimir Putin than James Madison. "
    What absolute garbage. Vladimir Putin has never sent anyone to Guantanamo Bay or ordered American citizens stripped off their rights. The two culprits are George Bush II and Barrack Obama. These are the actual politicians who have permitted such policies. Yet you do not mention them and instead try to blame a Russian politician who has ABSOLUTELY NOTHING to do with it.
    This is all too typical of those who write for the American MSM. Blame Putin and the Russians for all and everything. Don't mention the real culprits.
    You have lost my respect, Mr Napolitano, and I doubt I will read any more of your articles.

    You probably should stop reading his articles since you don’t comprehend them. He did not literally mean that Mr. Putin sent anyone to Guantanamo. That was an example of the Russian oppressive behavior instead of that of a free country. A little sarcasm perhaps.

    I find Judge Napolitano’s article very informative and factual.

    Read More
  5. I understand Mr Napolitano much better than you seem to understand him. He could have said that this is the America of George W Bush and Barrack Obama, not James Madison. This would have been truthful.
    However, he claimed it was ” more Vladimir Putin than James Madison.” No evidence is produced for this statement.
    The last 3 US Presidents, Clinton, Bush II and Obama, have waged aggressive war in the Balkans, the Middle East, Eastern Europe, Africa and elsewhere. Millions have died , directly and indirectly as a result. Legitimate governments have been overthrown, terrorist organisations have been supported to cause great loss of life.
    Yet you accuse Putin of oppressive behaviour.
    Crawl back under your stone, you ignorant Neocon.

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  6. Just an observation about Napolitano: With every article he writes, with every book he writes, Napolitano demonstrates his fidelity to the law, his fidelity to the Constitution–and his fidelity to freedom.

    Now, will the denizens of Washington, District of Corruption get with the program? No, of course they won’t. . . .

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    • Replies: @Jim Bob Lassiter
    As I recall, Judge Napolitano is from the New Jersey bench. New Jersey has some of the most draconian anti civilian ownership/bearing/transportation of firearms laws in the nation.

    So, I wonder how many rulings/opinions the good Judge has handed down in New Jersey that have rebuked some of these laws.
  7. @Orville H. Larson
    Just an observation about Napolitano: With every article he writes, with every book he writes, Napolitano demonstrates his fidelity to the law, his fidelity to the Constitution--and his fidelity to freedom.

    Now, will the denizens of Washington, District of Corruption get with the program? No, of course they won't. . . .

    As I recall, Judge Napolitano is from the New Jersey bench. New Jersey has some of the most draconian anti civilian ownership/bearing/transportation of firearms laws in the nation.

    So, I wonder how many rulings/opinions the good Judge has handed down in New Jersey that have rebuked some of these laws.

    Read More
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