James Madison thought our constitution would protect us from tyranny. Others were not so sure, so Madison wrote Federalist #47 to try to allay their fears. He started out by acknowledging the legitimacy of his opponent’s concern.
No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system.
But, today I look at my New York Times and read:
The Defense Department said that a ruling against military tribunals did not prevent the government from holding suspects indefinitely and without charge.
And I begin to wonder whether James Madison was right or wrong. Alexander Hamilton noted the importance of habeas corpus in Federalist #84. Quoting Blackstone, he made the point.
“To bereave a man of life (says he) or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person by secretly hurrying him to gaol, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.” And as a remedy for this fatal evil, he is every where peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls “the BULWARK of the British constitution.”
Hamilton wrote the 84th to convince people the Constitution was good enough without a Bill of Rights attached. He lost that battle. And so I remind you, good citizens, of the plain text of the fifth amendment (emphasis mine):
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 offense 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.
It doesn’t say “no person who is a U.S. citizen”, it says “no person”. In this case, let’s go with original intent. Some of the people in Guantanamo Bay were caught on the battle field by our military forces. They deserve to be treated as prisoners of war, and be accorded all the protections of our laws and treaties. The rest need to be charged or released.
When Barry M. Goldwater said, “Extremism in the defense of liberty is no vice. And moderation in the pursuit of justice is no virtue”, people thought he was nuts. But these are different times. And any extremist that wants to defend my liberty and pursue justice is my ally. There is no higher pursuit than the defense of liberty. And, today, liberty’s defenders are all extremists.
