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?




Judge Andrew Napolitano


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 is It Is Dangerous To Be Right When the Government Is Wrong.

  • CM

    The measures to enhance our national security that President Bush took during his administration were widely criticized by the left and the mainstream media. Those measures seem mild compared to what is being put forward now. Why is the media not warning us this time? (Rhetorical question)

  • This is an outrage. Where is the media? We are moving toward a police state. The powers that be are using fear to enslave us.

  • Cathy

    With this in place we are no longer citizens, merely renters voting in landlords. If the landlord is against you, you’re out. There is no reason that any man willing to work for a living shouldn’t be working – regulations stole his right to work. There is no reason that the owners of property have the right to property usurped by squatters in front of their property – occupy whatever and the police whose duty is defense of liberty and life and who is paid by property taxes does nothing. We have become exactly the same tyranny which the founder of this country joined to defeat. We are now somehow committed to bail out this, that or the other because its too big too fail, and despite the effort too big is still failing. Isn’t it about time we throw all the bums out! Elect all new leaders, demand that civics returns to our classrooms and turn the UN building into office space?

  • WhereTo

    Given the government’s overt hostility and declaration of war against Catholicism, is it time to remove the stars and stripes from Catholic buildings and only display the flag of the Vatican?

  • trad_cat

    Catholics: Exercise your Catholic and Natural right to self defense and arm up and get the proper training. Universal pacifism is contrary to Catholic doctrine.