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Power Always Demands More

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Here’s a letter to the Washington Times:

Bravo for Judge Andrew Napolitano’s forceful defense of due process of law (“Can the President kill you? [2]” March 12).  Attorney General Eric Holder would smash, in the name of the ‘war on terror,’ this bulwark against tyranny by excusing the President from obeying its centuries-old specific requirements whenever the President judges such requirements to be inconvenient.

A very similar attempt by England’s Charles I to claim for himself such arbitrary power led directly to the unanimous approval, by both houses of Parliament in 1628, of the Petition of Right [3] – a document forming much of the intellectual soil in which the U.S. Constitution is rooted.  That Petition provides, in part, “That no man, of what estate or condition that he be, should be put out of his land or tenements, nor taken nor imprisoned, nor disinherited, nor put to death without being brought to answer by due process of law.”  It goes on to state that due process is violated if criminal charges are unspecified or if citizens are punished for alleged crimes without trial by jury.  And the Petition makes clear that “no offender of what kind soever is exempted from the proceedings to be used” – which proceedings, it should be noted, were assumed to include also the bringing of writs of habeas corpus.*

Charles agreed to the Petition and then arrogantly ignored it.  That he believed that his royal concern for his subjects justified his ignoring it did not reduce the danger that such arbitrary power posed to ordinary people.  Quite the contrary, as history attests.

Donald J. Boudreaux
Professor of Economics
George Mason University
Fairfax, VA  22030

Sir Edward Coke and other courageous Englishmen who stood up to the Stuart monarchs explicitly denied that invocations of “reasons of state” act as a magic formula to dissolve the binds that ought always keep even heads of state – I might say, especially heads of state – under the law.