Due Process: Legal Antidote to Tyranny
The hallmark of any tyrannical government is a legal system that does not include specific rights of and well-defined mechanisms for Due Process. By its very nature, the principle of Due Process is the legal antidote to tyranny, as it constrains government from abolishing the Natural Law Rights and restricting the freedom of its citizens.
The framers of our Constitution were well-aware of that fact. King George enjoyed total sovereign authority over all individuals residing on lands he owned, which included the thirteen colonies. The American colonists had no legal means to dispute the abuses of power imposed on them by the King. A monarchy, as a totalitarian regime, does not provide individual subjects the right to peacefully protest and seek redress of grievances.
Our victory in the War of Independence removed the yoke of tyranny from the shoulders of the colonists. Our nation’s founders wrote the Declaration of Independence, the US Constitution and the Bill of Rights to create and protect Due Process procedures for all citizens. The intent of these documents was to provide citizens with the tools to oppose any future government from resurrecting any of King George’s abuses of power.
The United States is a Constitutional Republic in which the Natural Law Rights of the minority, even a minority of one single person, are protected by the Constitution and the Bill of Rights no matter what the majority wants.
Our Constitution and Bill of Rights is a signed contract between thirteen sovereign states that created a federal government to perform a limited number of tasks best performed jointly on behalf of the states.
The Constitution, as the “operating manual” for the federal government, established the three co-equal branches of government, specified how each was to operate, and defined their relationship to each other. The Bill of Rights, however, is critically important for the individual, as it details in no uncertain terms the relationship between the federal government and the sovereign citizens of the sovereign states. More important, however, the Bill of Rights stipulates that the powers not granted to the federal government belong to the states and their citizens.
At its very heart, the principle of Due Process is based on individual property ownership rights, and the credo of Dr. Dan’s Freedom Forum, from the beginning, has always been:
The right to own private property that cannot be arbitrarily confiscated or regulated by the government is the moral and constitutional basis for individual freedom
To our founders, the totality of a person’s property was his land and home, his possessions, the work of his hands, the ideas of his mind, and his life itself. The basis for private property protection goes back to the Ten Commandments and prohibitions against coveting, theft, bearing false witness, and murder – each of which steal some portion of a person’s personal property.
There are specific portions of the Bill of Rights that deal with property rights and Due Process law that protects them.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . . . . (No person shall) be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. (This is the basis for “eminent domain”.)
In all criminal prosecutions, the accused shall enjoy the right 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 defense.
As a textualist, I believe that the words of our Constitution mean exactly what was written and agreed to 230 years ago. Neither the Fifth Amendment’s words, “(No person shall) be deprived of life, liberty, or property, without due process of law” nor the “rights of the accused” specifically spelled out in the Sixth Amendment can be considered vague or ambiguous. The meaning of these words and phrases are as clear and precise today as they were when written.
In a dictatorship, none of those protections exist. The government has no obligation to uphold the Natural Law Rights of any individual and will engage in any behavior, moral or immoral, to retain power. Tyrannical regimes rely on information of any kind provided by informants who might be your neighbor or even a former friend, relative, or colleague.
Once you become suspected of crimes against the government, there is no “Bill of Rights” to protect you. When the police show up at your door at 2:00 AM, you will not be told the nature of your crime, your home will be searched, destroyed, and anything of value confiscated. You will be taken to a secret prison, interrogated, probably tortured, and, most likely, imprisoned under harsh conditions or killed.
Two “extremes” exist – total legal protection versus absolutely no protection.
Given the strong protection of our rights in the Constitution, one would believe that our United States would have an exemplary record of protecting our citizens against abuse of Due Process. Unfortunately, that is not the case.
The ink on the Constitution was barely dry before the Federalist Party (proponents of big government) like John Jay, Alexander Hamilton, and President John Adams enacted the Alien and Sedition Acts in 1798. These four bills prolonged the waiting period for foreigners to become US citizens from five to fourteen years and gave the president the authority to imprison or deport persons deemed dangerous or who were from hostile nations. The Sedition Act made it illegal to make false statements critical of the federal government, considered by many to violate the First Amendment right of free speech. Some prominent individuals, mostly authors and newspapermen, were fined and imprisoned as a result of this legislation before it expired in 1800 and 1801.
One of these acts, however, the “Alien Enemies Act” remained in effect and was used to imprison enemy aliens from Germany, Italy, and Japan during World War II. In a separate unrelated action, President Roosevelt’s Executive Order 9066 in February, 1942, forcibly removed 112,000 US citizens of Japanese descent from their homes in California and relocated them to internment camps without any form of Due Process.
During the Civil War, President Lincoln suspended habeas corpus for a private citizen arrested as a result of an ex parte hearing and held him in military prison. Lincoln refused to release the prisoner even after a court order to do so. A defiant Lincoln said he had the right to suspend any rule necessary to put down the rebellion in the South. Furthermore, in 1862, Lincoln suspended habeas corpus in the entire nation as part of this proclamation:
Now, therefore, be it ordered, first, that during the existing insurrection and as a necessary measure for suppressing the same, all Rebels and Insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to Rebels against the authority of United States, shall be subject to martial law and liable to trial and punishment by Courts Martial or Military Commission:
That the writ of habeas corpus is suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fort, camp, arsenal, military prison, or other place of confinement by any military authority of by the sentence of any Court Martial or Military Commission.
The Espionage and Sedition Acts of 1917 and 1918 made it illegal for individuals to criticize American’s involvement in the war or to write or say anything publicly that might obstruct or hinder the war effort. Numerous citizens were prosecuted under these laws, many spending years in prison and having to pay thousands of dollars in fines.
In America today, the constitutional protections of our Natural Law Rights of Due Process and Habeas Corpus have been violated and restricted beyond the imagination of our founders. The RICO Act enacted to fight organized crime and drug cartels allows for search and seizure practices that disregard every constitutional guarantee of privacy and property rights. The Patriot Act, signed into law after the terrorist attacks on September 11, 2001, gave rise to a variety of national security laws that allow the federal government and its enforcement agencies virtually unlimited authority to abuse the civil liberties of ordinary citizens. Under the pretext of protecting the nation from any conceivable threat, the government can violate all aspects of an individual’s privacy.
Now that we have entered the digital age, the government’s power is unlimited. We are on the verge of achieving the tyranny conceived by George Orwell in his novel “1984” that so accurately predicted the course of our society now and into the future.
When our government and judicial system is allowed to unilaterally suspend the Habeas Corpus and Due Process requirements in the Constitution and Bill of Rights to achieve a political agenda, we are no longer a “Nation of Laws”. We are, in fact, no better than the dictatorships, past and present, whose violations of human rights we now decry.
The ends do not justify the means.
The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. ~ Marbury, 5 U.S. at 162.
Dr. Dan’s guest on Freedom Forum Radio this weekend is Darryl R. Brown, Attorney at Law. Brown is a courtroom attorney having been involved in over 1,000 trials before judges and juries, including capital murder, and he has analyzed and evaluated tens of thousands of cases.
In addition to his law practice, Brown is Guardian ad Litem Attorney Advocate since 2005 and Cherokee County Attorney since April 2018.
Most importantly, Brown is well-versed on the US Constitution, Bill of Rights, and Due Process. He knows how the system should and does work.
Episode one of this six-part interview begins this weekend, Saturday and Sunday, October 12-13, on WJRB 95.1 FM and streamed live over the Internet.
All programs are available by podcast following airtime here.