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Judge Napolitano
Judge Andrew P. Napolitano
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Can Congress Steal Your Constitutional Freedoms?


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, he can.

Congress is 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.

Last week, 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 years.

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?

Nothing terrified 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?

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the Senior Judicial Analyst at Fox News Channel and anchor of "FreedomWatch" on Fox Business Network. His most recent book, "It Is Dangerous To Be Right When the Government Is Wrong," was released in October 2011. To find out more about Andrew P. Napolitano and to read features by other Creators Syndicate writers and cartoonists, visit




1 Comments | Post Comment
The Congress in 1947 decided it could override the consititution by passing the Marijuana Tax Act, since that time it has become the norm for Congress to thnk it's job is restricting things. This unjust act allows the war on terrorism to have such a hold on our freedoms now under the disquise of protecting freedom and spreading liberty. The first admendment states congress shall make no laws about religion, yet the unjust cannabis laws seek to restrict and mislabel a plant with seeds, which on page one of the BIble we are instructed to use since all plants are good and from GOD. No other plant that we have found can be used for so many things, over 25,000 so far, and less then one percent of those uses just happens to be smoking it, and it is non toxic and non addictive.
In order to change the current problems about uncheck military spending, the war on non violent tax paying pot smokers needs to end. It is the real underlaying issue which seems to get sidetracked and labeled as comments by stupid stoner Hippies. Yet U.S.Patent 663-0507 is a legal binding patent which goes unenforced and no one gets arrested for its non enforcement.
A single 12 oz can of beer is the same weight in pot one person smokes in a year, maybe two cans worth if they are heavy, heavy smokers. The overreach of unconsititutional acts stem from trying to make criminals out of otherwise upright citizens by drafting laws based on greed for profit and outright fraud, while allowing the government itself to perform the same actions which makes its own people criminals, which is no less then treason against Americans since the real use of Cannabis is to power our cars with a green renewable energy source which also cleans air pollution while it grows, this in turn will free America from foreign fossil fuel, and from using corn for ethanol.
Comment: #1
Posted by: Rick
Thu Dec 1, 2011 9:54 AM
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