Due Process Is Vital to Freedom

“No person shall … be deprived of life, liberty, or property, without
due process of law…”
– Fifth Amendment to the U.S. Constitution

The clash in American history between liberty and safety is as old as the republic
itself. As far back as 1798, notwithstanding the lofty goals and individualistic
values of the Declaration of Independence and the Constitution, the same generation
– in some cases the same human beings – that wrote in the First Amendment
that “Congress shall make no law … abridging the freedom of speech”
enacted the Alien and Sedition Acts, which punished speech critical of the government.

Similarly, the Fifth Amendment’s guarantee of due process has been ignored
by those in government charged with enforcing it when they deal with a criminal
defendant whom they perceive the public hates or fears. So it should come as
no surprise that no sooner had the suspect in the recent New Jersey and New
York City bombings been arrested than public calls came to strip him of his
rights, send him to Gitmo and extract information from him. This is more Vladimir
Putin than James Madison.

I have often argued that it is in times of fear – whether generated by outside
forces or by the government itself – when we need to be most vigilant about
protecting our liberties. I make this argument because when people are afraid,
it is human nature for them to accept curtailment of their liberties – whether
it be speech or travel or privacy or due process – if they become convinced
that the curtailment will keep them safe. But these liberties are natural rights,
integral to all rational people and not subject to the government’s whim.

I can sacrifice my liberties, and you can sacrifice yours, but I cannot sacrifice
yours; neither can a majority in Congress sacrifice yours or mine.

The idea that sacrificing liberty actually enhances safety enjoys widespread
acceptance but is erroneous. The Fort Hood massacre, the Boston Marathon killings,
the slaughters in San Bernardino and Orlando, and now the bombings in New Jersey
and New York all demonstrate that the loss of liberty does not bring about more
safety.

The loss of liberty gives folks the false impression that the government is
doing something – anything – to keep us safe. That impression is a false one
because in fact it is making us less safe, since a government intent on monitoring
our every move and communication loses sight of the moves and communications
of the bad guys. As well, liberty lost is rarely returned. The Patriot Act,
which permits federal agents to bypass the courts and issue their own search
warrants, has had three sunsets since 2001, only to be re-enacted just prior
to the onset of each – and re-enacted in a more oppressive version, giving
the government more power to interfere with…

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