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.
“Moderation in all things, including moderation.’ Aristotle would have been proud 🙂
(and I mean that in a good way)
Good post! It went into my clippings folder…..
The analysis required is not complicated.
The separation of powers that kept tyranny at bay in the United States for so long has been consciously broken down by the far right wing (fascists) in this country.
They seized control of the Republican Party, then engineered a majority of rabid fascists and their enablers in the Congress.
Once that was done, the rest was easy: install a rubber stamp President in the White House (Bush has NEVER used his veto power in six years!) and pack the Supreme Court and federal judiciary with fascist sympathizers or people who are too weak to stand up to them.
The Founders envisioned that a President like Bush would not have been approved by the Electoral College, or would have been impeached by now by a Congress watchful of the people’s liberty and protective of its own power.
What the Founders did not envision was a right-wing mass media that would stir up a group of well-organized fanatics and the near-total collapse of the opposition party.
This is the Perfect Storm, and it has been coming for a long time, because it was engineered. The fascists made sure they had plenty of voices in the media.
Which is how they took control of the Congress, and maintain control of it, and the White House.
Their victory is not yet cemented. Yet. There is still time to stop them.
But time is running out.
And no, I don’t think it overstates the case to claim that our Republic, our system of government, is in mortal danger.
There is no democracy in history that has not committed suicide. Republics are almost always destroyed from within, not from without.
Fifth amendment. Absolutely clear.
…nor be deprived of life, liberty, or property without due process…
Thanks for the words of the Founders. Nice diary.
Man without a country has it right.
The battle is not over. These sorts of internal fights take a long time to resolve under our system. That is by the Founding Fathers design.
We, the citizenry, must resolve to do everything in our power to demand that the fascist takeover be:
Stopped.
Reversed.
Those responsible punished.
It’s up to us.
It always is.
the shadow that fell across the land when the Nixon administration was in power. I was in fourth grade when he resigned so I still felt supremely protected by the adults in my family and everything that I experienced about how violated they all felt I experienced through witnessing their worry and their emotions. This administration does seem to caste longer darker shadows over the land though.
I was in high school when Nixon resigned, so perhaps someone older than me can comment, but my impression comparing then to now is that the current situation is more dangerous because of the surface appearance of normalcy. When Nixon was in office there was no doubt to anyone with access to a TV, radio, or newspaper that this was a nation sorely divided. There were protests in the streets, protests on college campuses, and protest music all over the radio. The press (not everyone everywhere, but when and where it counted) had a spine then, and stood up for the nation. The coverage of the war was much less sanitized.
The situation in the US today is more like the USSR before the collapse of communism. Word was kinda sorta getting out that there was plenty wrong and things going on, but the official news media was all smiles and roses for the leaders. Clandestine printing presses and radio broadcasts served the role the internet does today.
memories of that time. I thought about you while driving through Knoxville. My next trip we must meet for coffee at least. I hate how spineless the majority seems to be right now……I hate that Great Britain seems to be going through something very similar. I hope we all triumph over what my heart knows so firmly to be a darkness and potentially a devastating harm to all mankind!
Please do let me know if you’re ever passing though Knoxville again! I’m not nearly the stuffy old fart in person that I am in cyberspace. Mrs. K.P., however, is every bit as ornery as I describe her, LOL! (Don’t tell her I said that!)
That invitation goes for the rest of you eavesdroppers, too – except you guys from the NSA with the bug in the flowerpot, and the trolls behind the sofa.
Mrs. Indianadem is quite the outspoken one and has absolutely no fear. Would love to get together someday so she and Mrs. KP could share ornery tips;-)
We’re very near Indiana University at Bloomington. If you’re ever in the neighborhood we could have a fairly sizable meetup with all the BTers nearby.
Two things were very different during the Nixon era than today. We can learn a lot from these differences if the democratic roots of this country can be saved somehow!
There was magic in the air we breathed then. We were younger and full of the energy. We were the cresting wave that would wipe away the woes of the world and usher in a new age of peace and harmony.
Thoughts that slipped through our fingers somehow and were gone.
I am sad for our country and my fellow human beings tonight – just tired, I suppose. I will take up the fight again tomorrow.
Peace
Ever since Bush declared, with the court’s approval, that he could declare an AMERICAN CITIZEN an enemy combatant and deprive that citizen of his/her habeas corpus rights and could hold that citizen without charge, attorneys, trials, or even a hearing before a neutral magistrate we lost the essence of America and the key elements of our democracy.
Then Bush, backed by his accomplices in the Republican Guard, declared himself above the law and not subject to constitutional checks and balances. That sealed the deal and Bush became our self-proclaimed King.
The battle coming in November is not just to SAVE and KEEP our democracy, it is to RECOVER and REINSTITUTE the democracy we have had TAKEN FROM US ILLEGALLY.
When one man can jail you, hold you forever, make you disappear, order you killed or tortured, send you secretly around the world to be tortured by others, kidnap you off any street in any city in the world, and pick and choose which laws he will or won’t follow HE IS A KING AND ANYONE ELSE IS MERELY HIS SUBJECT OR SLAVE.
So I would tell all Redstaters and Bush voters that they either need to help depose the King this November or they need to kneel in obedience, subservience, and fealty and be prepared to kiss the King’s ring and swear loyalty to the false King.
Then they can kiss my ass because I am an AMERICAN who will NEVER kneel to a King in this country in my lifetime; I will die first defending my country from this perfidy if necessary.