Writing at the Originalism Blog, Michael Ramsey of the University of San Diego Law School examines the Obama administration’s drone policy in light of the original meaning of the Due Process Clause of the 5th Amendment, which forbids the government from depriving any person of “life, liberty, or property, without due process of law.” The whole post is worth reading, but here is a representative snippet:
[A]ssuming one accepts as a general matter that U.S. citizens have constitutional rights abroad, I don't see how, under the President's theory, the power of non-exigent, non-battlefield extrajudicial killing can be limited to overseas situations. If the President believes that someone within the U.S. is an enemy of the state, and he believes that capture is at the moment not feasible, what constitutional principle would prevent the President from using deadly force (apart from a principle that would also limit it overseas)? That prospect should be sufficient to cast great doubt on the whole argument. The most central concern of the due process limit in the eighteenth century and earlier was surely that the king not have power to kill domestic opponents by labeling them enemies of the regime.
In sum, the original meaning of the due process clause is that the President cannot unilaterally kill U.S. citizens he thinks are potentially dangerous. Perhaps there are examples of historical practice that suggest an exception applicable to the present case (as there are obvious historical exceptions on the battlefield and for prevention of imminent harm). But the burden should be on those who want an exception to the text, and that burden shouldn't be met merely by the claim that it would be more convenient to have such an exception.
Read the whole thing here. Click below to watch Ramsey discuss Obama’s use of executive power in Reason TV’s “All the President’s Wars: How Foreign Policy Became One Man’s Prerogative.”