How Obama’s Drone Strike Policy Violates the Original Meaning of the Constitution

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.”

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  • Enough About Palin||

    We are the war.
    We are its children.

  • ||

    We are the ones who make a brighter day, so let's start killin.

  • Pro Libertate||

    There's a choice we're making,
    We're taking all their lives'
    It's true we'll make a better day.
    Just you and me.

  • Pro Libertate||

    Oops, weird superfluous apostrophe. Must be the censors.

  • WTF||

    How Obama’s Drone Strike Policy Violates the Original Meaning of the Constitution,

    Is this seriously even in question?

  • Pro Libertate||

    I think it would be easier to list those things still in keeping with the original meaning of the Constitution.

  • From the Tundra||

    I'm drawing a blank...

  • Juice||

    Let's see. The 5th amendment says "No person shall...be deprived of life, liberty, or property, without due process of law" but then right after that says "nor shall private property be taken for public use, without just compensation."

    So what was the "due process of law" that the person experienced before being deprived of property when the private property was taken for public use?

  • theconcerto@yahoo.com||

    Eminent domain and a fairly big check. Yes, to my knowledge, the power has been abused once.

    The huge difference is that lives are not at stake.

  • wareagle||

    all this deep thinking as though it means something, like this adminstration could give a shit about teh Constitution.

  • Bam!||

    The administration? Try all politicians. Government hasn't been bound by the constitution in a long time.

  • ||

    Yes, I'm pretty sure that killing US citizens without a trial violates the original intent of the constitution.

    Understatement of the fucking millenium.

  • Bam!||

    The fact that killing American citizens without due process isn't debated demonstrates how unchained the modern government is.

  • Bam!||

    Actually, what I wanted to say was, "is even debated".

  • Cyto||

    Nothing is debated these days. When you can be called an unhinged right-wing reactionary for proposing an "austerity" budget having trillions of dollars in deficits over a decade (Ryan), there is no possibility of debate.

    We debate marginal gun control issues and gays in the military. Not fiscal policy or war or anything of real importance.

  • Hugh Akston||

    You guys are all wrong. I'm sure it says something about the President having plenary authority to deliver death from remote-controlled aircraft somewhere in the Constitution.

  • ||

    Dude, the Constitution is, like, over 100 years old. It's like totally outdated and stupid and stuff. Who cares what it says?

  • Doctor Whom||

    That, and it's not a suicide pact.

  • John||

    It is a suicide pact written in Sanskrit.

  • ||

    Bro, do you even constitution?

  • ||

    That thing's like, a hundred years old, and who can even read it nowadays? The president is our dad, and if my dad wants someone dead, I go kill the fuck out of him without thinking about it.

  • WTF||

    So your mom's a Wookiee?

  • ||

    He's certainly hairy enough.

  • Archduke Pantsfan||

    The constitution

    That musty document?

  • Cyto||

    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?

    You haven't read your Balko, have you? Forget the president, Barney Fife makes that decision on a daily basis across America. Guy in bunker with kid too tough to capture? Boom! Dead. (no argument here, sick bastage) Iraq war veteran sleeping while you are trying to search his house? Boom, Dead!! (Ok, well.. they coulda just retreated around the corner, but he did have a gun on him... how were they to know the safety was on?) Drug dealer's roommate awakened by your raid comes to the hallway with a golf club? Too dangerous to apprehend! Boom, Dead! (ok, wait a sec...) Little girl asleep in her bed as you search in vain for a drug dealer? Boom! (literally - stun grenade). Granny minding her own business in her own home in Atlanta? Boom! Dead! (hey, she was a tough old broad in that nightgown. It woulda been really hard to bring her in alive). Teen mom cowering on the floor holding her baby while being held at (assault rifle) gunpoint? Boom! (Woulda been too dangerous to apprehend her. Oh, and that baby's hand was a potential threat. Gotta lose that too..)

  • Enough About Palin||

    And yet some here still acknowledge Dunphy when he posts. I just don't get it.

  • In Time Of War||

    I believe it's only due to lack of equipment that they haven't sent a drone after Dorner. Give it time.

  • In Time Of War||

    Of course, the innocent hiker or hunter that accidentally gets Hellfire'd will be collateral damage. If they didn't want to die, they shouldn't have been out in the same wilderness as a wanted criminal, right?

  • some guy||

    Perp laying on his stomach, hands cuffed behind his back with a cop sitting on his back... Bam! Dead. (I got nothing.)

  • Number 2||

    An American citizen committing an act of war against America is treason. And the Constitution prescribes precisely how treason is to be handled. Article III, Section 3.1:

    "Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court."

    Article III, Section 3.2: "The Congress shall have the power to declare the punishment for treason..."

    Please note that Article III is the Judiciary article, not the executive.

    Seems pretty clear how American "terrorist" are to be handled even if one accepts that the War on Terror is an actual war.

  • theconcerto@yahoo.com||

    I am new here as of a few minutes ago. It had been suggested that I would find superior intellect on this blog as opposed to the great unwashed and uneducated partisan swill found at most other wastes of pixels on the web.

    I think I've been mislead from what I read here. Memories very short on all of these policies. Policies that were created in response to the war on terror also created for two very profitable and imperialist wars and deliberately to eviscerate the constitution.

    Presidents are puppets and do what they need to do...to stay alive. It is as simple as that. Americans are easy would be Nazis, otherwise fish living in water and don't know it.

  • Josua||

    Answer al-Awlaki was not killed as punishment. He was killed so as to remove a key figure in the al-Qaida terrorist organization. Awlaki was involved in a defacto war against the United States, was identified and located, and was killed. That he happened to be American is of no consequence. If you engage in war against the United States, then you are a legitimate target. Neither the constitution nor international law prohibits the killing of an enemy in war.

    The original meaning of the constitution with regard to war, was that the president is the commander in chief and the congress is the procurement authority for the military.

    At the time of the constitution's writing, standing armies were small to nonexistent and navies were typically augmented by privateering. The process of ramping up forces for a big war called for congress to provide funds to raise a large (but mostly unskilled) army and to "outsource" aspects of naval warfare (such as commerce raiding) to privateers. This is the basis for the declaration of war. It has nothing whatsoever to do with commanding standing forces. A declaration of war, in the original view, has absolutely nothing to do with the command of standing forces.

    The president commands the forces already procured through defense spending. Congress is not the "co-commander in chief." The president does not require congressional "authorizations for the use of force" or declarations of war.

  • Number 2||

    That's a very curious interpretation of the Constitution and the war powers clauses. Care to offer a supporting citation or two?

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