Can Congress Steal Your Constitutional Freedoms?
Andrew P. Napolitano
by Andrew P. Napolitano: What
if the Constitution No Longer Applied?
Can the president
use the military to arrest anyone he wants, keep that person away
from a judge and jury, and lock him up for as long as he wants?
In the Senate's dark and terrifying vision of the Constitution,
supposed to work in public. That requirement is in the Constitution.
It is there because the folks who wrote the Constitution had suffered
long and hard under the British Privy Council, a secret group that
advised the king and ran his government. We know from the now-defunct
supercommittee, and other times when Congress has locked its doors,
that government loves secrecy and hates transparency. Transparency
forces the government to answer to us. Secrecy lets it steal our
liberty and our property behind our backs.
while our minds were on family and turkey and football, the Senate
Armed Services Committee decided to meet in secret. So, behind closed
doors, it drafted an amendment to a bill appropriating money for
the Pentagon. The amendment would permit the president to use the
military for law enforcement purposes in the United States. This,
of course, would present a radical departure from any use to which
the military has been put in the memory of any Americans now living.
The last time
the federal government regularly used the military for domestic
law enforcement was at the end of Reconstruction in the South, in
1876. In fact, the deal to end Reconstruction resulted in the enactment
of federal laws forbidding the domestic use of American military
for law enforcement purposes. This has been our law, our custom
and our set of values to which every president has adhered for 135
It is not for
directing traffic that this legislation would authorize the president
to use the military. Essentially, this legislation would enable
the president to divert from the criminal justice system, and thus
to divert from the protections of the Constitution, any person he
pleases. And that person, under this terrifying bill, would have
no recourse to a judge to require the president either to file charges
against him or to set him free.
Can you imagine
an America in which you could lose all liberty – from the presumption
of innocence to the right to counsel to fairness from the government
to a jury trial – simply because the president says you are dangerous?
or animated the Founders more than that. The Founders, who wrote
the Constitution, had just won a war against a king who had less
power than this legislation will give to the president. But to protect
their freedoms, they wrote in the Constitution the now iconic guarantee
of due process. The Fifth Amendment to the Constitution says, "No
person shall be ... deprived of life, liberty, or property, without
due process of law." Note, the Founders used the word "person."
Thus, the requirement of due process must be accorded to all human
beings held by the government – not just Americans, not just nice
people, but all persons. When Lincoln tried to deny this during
the Civil War, the Supreme Court rejected him and held that the
Constitution guarantees its protections to everyone that the government
restrains, no matter the crime, no matter the charge, no matter
the evidence, no matter the danger.
If this legislation
becomes law, it will be dangerous for anyone to be right when the
government is wrong. It will be dangerous for all of us. Just consider
what any president could get away with. Who would he make disappear
first? Might it be his political opponents? Might it be you?
December 2, 2011
Andrew P. Napolitano
[send him mail],
a former judge of the Superior Court of New Jersey, is the senior
judicial analyst at the Fox News Channel, and the host of “FreedomWatch”
on the Fox Business Network. His latest book is It
is Dangerous to be Right When the Government is Wrong: The Case for
© 2011 Creators Syndicate
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