Due Process

Yes, the Constitution Means Your Political Opponents Get Due Process Too

Americans are so locked into their political sides that many of them seem willing to cast aside some of the nation's long-established constitutional protections.

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America's current political discourse is far from uplifting these days, with our increasingly tribal politics leading to a series of seemingly endless high-decibel battles. The funniest description I've read comes from a Canadian meme, which compared the situation to listening to a neighbor's car alarm blaring all night long.

The most troubling aspect of America's polarized society isn't the constant anger and upset that is so prevalent that it's making even our friendly northern neighbors a bit nervous. It's that Americans are so locked into their political sides that many of them seem willing to cast aside—or severely erode—some of the nation's long-established constitutional protections.

The Constitution is not a guarantor of positive rights (free health care or college tuition), but the ultimate defense of negative rights—the right to be left alone from government intrusion. Many of Facebook's newfound constitutional scholars seem to miss that basic point and employ the document selectively, mainly as a cudgel to bludgeon foes.

The latest and most disturbing hit has come against due process. The Fifth Amendment forbids the government from prosecuting crimes against individuals unless they have been indicted by a grand jury. No person shall be "deprived of life, liberty, or property, without due process of law," nor shall their "private property be taken for public use, without just compensation."

In other words, the government cannot just arrest people and jail them without allowing them a chance to adjudicate their case before an impartial court. The government cannot simply take our private property either, except under limited circumstances and after it pays us for it. The justice system doesn't always work as promised, of course.

With property takings, for instance, the courts traditionally required that property only be taken for a public use (a government-owned road, etc.). Now, the courts allow eminent domain for "public benefit," which means almost anything that a government may claim to benefit that nebulous "public good."

Those erosions—and others like them—largely are driven by politicians who rightly see the Constitution as an impediment to their end goals. In the wake of the MeToo allegations involving sexual assault, for instance, some activists have found due-process to impose too high a burden on their desire to punish alleged miscreants.

In a recent article in the Atlantic, Megan Garber expressed frustration when film producer Harvey Weinstein's defense attorney complained about the way the system of accusations "strips your right to due process." I agree with Garber when she argues that the use of due process in a rhetorical way can be inaccurate. Due process says nothing about the court of public opinion, but only about one's right to trial before a real court.

My problem, though, is when Garber seems to take aim at the notion of due process itself: "Due process suggests the comforts of idealized thinking, summoning notions of equality and fairness and the sanctity of facts. It may be rooted in reason; in practice, though, it can look like what it has during Weinstein's trial: a perpetuation of harm."

When it comes to dealing with allegations of sexual harassment, the left has shown a troubling willingness to erode protections for the accused. Progressives were aghast, for instance, when U.S. Secretary of Education Betsy DeVos proposed new rules for colleges and universities that receive federal funds that would require that they provide more fulsome due-process protections for students accused of harassment.

The right has pushed the boundaries, too. In 2018, the president called for stripping illegal immigrants of any right to due process. He famously said after the Parkland, Fla., shooting that the government should, "Take the guns first, go through due process second." This was more talk than action, but it's troubling nonetheless.

The debate brings to mind H.L. Mencken's quotation: "The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all."

We're used to the usual assaults on the gun rights, of course. But those tiresome battles center on the meaning of the Constitution's words—does well-regulated militia mean I can own an AK-47?—but even gun-controllers pay lip service to the Second Amendment.  I'm troubled by the prevalence of people who know say that, you know, due-process shouldn't even matter.

Some progressives want to rewrite the Constitution. "The Constitution is a political blueprint for a time when white people owned black people, the average life span was 35 years old, and news was spread through people yelling on the street," wrote one contributor on Huffington Post.

That's true, but without its protections I'm guessing America—if it were still around and democratic—would have far bigger problems than angry political debates that are keeping our Canadian neighbors awake.

This column was first published in the Orange County Register.

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  1. “Due process suggests the comforts of idealized thinking, summoning notions of equality and fairness and the sanctity of facts. It may be rooted in reason; in practice, though, it can look like what it has during Weinstein’s trial: a perpetuation of harm.”

    WTF? Sanctity of facts, mentioned in a snarky way of course?

    1. They’re not criticizing the importance of facts. They’re saying that the high-minded concepts people generally associate with Due Process actually have very little to do with the everyday application of it. It’s not a bunch of wizened sages sitting around impartially doling out justice; it’s a no-holds-barred brawl where the only thing that matters is winning the case.

  2. “—largely are driven by politicians who rightly see the Constitution as an impediment to their end goals.”

    I believe that is the gist of it.

    1. I believe the point of the article was that it’s not just the politicians anymore. It seems lately like more of the rhetoric is coming from the “useful idiots” than from the politicians themselves.

      If that represents actual majority opinions and not merely the amplification of a few loudmouths, that would be a disturbing trend because it would mean that the populace is no longer willing to serve as a check on the politicians.

      1. Discussions have always been happening between people, but since everyone babbles on social media we can see it now.

        If you try to defend Harvey’s right to due process you’re called a rape enabler, victim shamer, misogynist, and people with no lives or future for themselves to speak of try to ruin you. So, why would you voice your opinion? Some even voice opinions that they don’t have out of fear. This gives the loudmouths power.

        This is just the beginning.

        3 years ago a lot of people shut their mouths for months, voted for Trump, and never admitted it. Finding out or assuming who you voted for will be the next strategy. Photographing people at Trump rallies is legal. So is making a site where posters ID them.

    2. Every organization will eventually be taken over by those who serve the organization for it’s own sake rather than serving the mission of the organization.

      Governments have no immunity to this.

      1. Indeed!

  3. Some progressives want to rewrite the Constitution.

    Some people seem to think stripping the rights of others won’t come back around. The unrestrained club of government swings in all kinds of directions.

    1. Feature, not a bug.

    2. Yes, the lack of self-awareness knows no bounds.

      Those progressives: “Trump is an authoritarian. We need to get him out, so we can change the Constitution – to give the executive more power!”

  4. The Constitution is not a guarantor of positive rights (free health care or college tuition), but the ultimate defense of negative rights—the right to be left alone from government intrusion.

    WHAT!?! Jesus Christ Greenhut, do you people not learn anything in school anymore?

    The Constitution protects rights and grants rights. Almost the entire 6th Amendment is “positive rights”. Under these rights, you can literally force a witness to testify.
    In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

    1. He’s a journalist, what do you expect?

      They’re not here to learn, they are here to provide their uninformed opinions to the rest of us.

      1. You aren’t the worst lovecon and I mean that.

      2. Even The Guardian journalists are not that stupid. They ignore the US Constitution when discussing American issues, but I have never seen them print something so idiotic where anyone can go to the US Constitution and find the opposite for themselves.

    2. “Almost the entire 6th Amendment is “positive rights”.”

      As has been noted by others, these “positive rights” you mention establish a framework to help ensure the protection of “negative rights.” The establishment of the courts themselves is an attempt to protect individual rights.

      1. I have already blasted people on here saying that the Constitution does not grant rights. It does.

        It grants the non-Natural right to assistance of counsel in defense. Right to speedy and public jury trial.

        At the same time, the Constitution also protects rights that have zero effect on others, like the protected right to keep and bear Arms.

        And then you also have the powers of the government and the structure of government to execute on that power. The Judicial, Legislative, and Executive Branches.

        1. To many, “… right to assistance of counsel in defense…” is a natural right.

          Well, okay, let’s replace “natural” with “fundamental.” Better?

          1. Natural right is a right that you dont need a government for. Parental right and right to self defense are examples. I have these rights whether government exists or not.

            Right to jury trial is a government created right as trials are functions of our government.

            1. So, we disagree on the definition of natural rights. I can live with that. I will keep my definition, and you can have yours, too.

    3. Under these rights, you can literally force a witness to testify.

      No you can’t. A criminal prosecution can potentially do so (even then the witness can refuse to testify and/or plead the 5th), but you can’t and doing so would be intimidation. The 6th is a negative right that, nominally, guarantees the government can’t bring a case against you without a witness or, say, an anonymous witness who’s protected under whistleblower laws.

      1. This. I can call a witness but I can’t force them to testify. They can plead the 5th.

        1. soldiermedic76 Pleading the 5th does not preclude testimony. They can be granted immunity so they are not testifying against themselves. They can testify and their testimony can be heard “in camera”, sot he testimony can be sealed and not used against them.

          Point is that the 6A gives defendants a right to […]to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor….

          1. None of which is forcing testimony. Those are providing them protections to allow them to testify without threat of harm. They are not compelling but allowing.

      2. Uh, mad.casual you have zero idea what you are talking about.

        I have subpoenaed numerous reluctant witnesses and had law enforcement drag them to court. They can claim the 5th Amendment all they want. Their asses will be in that witness chair to testify.

        1. I have subpoenaed numerous reluctant witnesses and had law enforcement drag them to court.

          So you issued a subpoena as a private citizen?

          1. So you issued a subpoena as a private citizen?

            Knowing what the answer to this question is.

            You also state Their asses will be in that witness chair to testify.

            You can put their ass in the chair, but you still cannot make them testify. You can hold them in contempt, but you still cannot make them testify.

            And, as I originally pointed out, *none* of these powers are granted as a positive right to a private citizen. I generally agree with a portion of what you post here but you’re rather overtly wrong in the machinations you’re spinning up here. IANAL, but if you are a judge or a lawyer and you want to continue beclowning yourself, go ahead.

    4. The Sixth Amendment places limits upon how the government may proceed against a defendant. While some of those limits take the form of “positive rights’, they are still limits on government power.

      1. Thanks for stating that. It is obvious, but apparently the prior poster doesn’t get it.
        Negative rights mean the right to be left alone. If the Govt. doesn’t prosecute you, then you have no 6th Amendment rights, because you don’t need them. The Sixth Amendment (and the 5th, for that matter) regulate how the Govt. may come after you in a criminal prosecution, should the Govt. decide to pursue that.

        1. You’re a moron.

          1. “You’re a moron.”
            He’s also right; you ain’t.

          2. Brilliant argument. People will really listen to you now.

            1. Why would anyone try to parse nonsense form a new sock troll?

              Then the other sock trolls back that troll up.

              Unreason circling the drain.

        2. Exactly. If by some miracle all the lawyers disappeared tomorrow, the government couldn’t legally prosecute you. The 6th is STILL a check on government power.

          1. “If by some miracle all the lawyers disappeared tomorrow, the government couldn’t legally prosecute you.”

            So what you’re saying is that since court cases take a while to happen if there was a coordinated effort it would provide enough time to round them up and commence with the cleansing?

            All lawyers have to be registered and that information is public. I’m sure it’s on the internet which speeds up the process and one cannot anonymously act as a lawyer. If they hide their name they still have a number.

            In no way am I advocating for this, but it is an interesting concept that would make for a great novel.

      2. Your citation fell off then.

        The US Constitution provides “positive rights”, “negative rights”, enumerated powers, limits on federal and state governments, structure of the state and federal governments, and how to amendment Constitution.

    5. IIUC it appears the author is speaking about the Constitution as a document that contains very few positive Rights that the government has authority. While it also contains mostly negative Rights over which the government has no authority.

  5. Illegal aliens don’t have a right to due process for deportation because deportation is not a legal punishment or criminal proceedings. Ditto for impeachment.

    As for polarization, that exists in the minds of coastal elites, not among the vast majority of Americans.

    1. I offer one amendment to your assertion. Due process rights do exist in both deportation and impeachment on that you are still free from general warrants and have 4th amendment protections.

      We just saw the House attempt to deny basic rights on their quest of impeachment.

    2. Illegal Aliens don’t have every right that Americans have but they could, if we decided they should have those not listed in the US Constitution.

      Amendment IX
      The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

      Even healthcare could be an unenumerated right that Americans have. Healthcare is not currently a right because healthcare has never been put in those terms, not even under ObamaCare.

      1. No healthcare is not an unenumerated right. Virtually everything that the federal government does that is not an explicit obligation of the fed govt (and yes I said OBLIGATION re things like post offices and such) – is – or should be – interpreted under the ‘interstate compact’ clause and the 14th amendment.

        No State shall, without the Consent of Congress… enter into any Agreement or Compact with another State

        Things like health care, education, housing, transportation, etc are state-level responsibilities but that have huge legal questions/issues re disparate treatment. Interpreting those as interstate compact would mean that Congress needs to legislate (and possibly funded under the ‘necessary and proper’ interpretation of how the fed govt distributes its money that it creates). But the executive branch would be completely eliminated from the management of that – and technically the only mandates could occur in the legislation not by bureaucrats.

        1. JFree
          February.21.2020 at 12:30 pm
          “No healthcare is not an unenumerated right….”

          Your comment is a fucking idiot’s claim. Grow up and learn English, or STFU.

      2. It takes a 2/3rds vote of U.S. Congress and State Ratification to change the Constitution (PERIOD!!!). The federal government doesn’t have an enumerated power “… to individual healthcare” (PERIOD!!!)..

        Congress cannot change this by itself and certainly not on some 50:50 vote. THE END…..

      3. Illegals are not part of “the people”. 9A doesn’t apply to them.

        You can put healthcare in whatever terms you like, forcing people to buy it does not fall under any of the enumerated powers of the federal government. You need a constitutional amendment to give the federal government that power, at which point you can stop handwringing about whether to call it a right.

      4. Healthcare is not a right. Don’t be an idiot

    3. On this I totally disagree with you. Deportation hearings are a court proceeding and the defendant deserves all the legal protections afforded anybody else in court.

      1. Deportations are not criminal proceedings. They are to remove you from the USA because you are not American and dont have a legally valid reason to be here. The Constitution only mentioned criminal defendants having a right to assistance of counsel.

        1. Yes they are criminal proceedings – just as is ‘trespass’. The only other option is civil proceedings.

          1. No deportations are not criminal proceedings. In fact, you can be legally deported without any hearing.

    4. “nor shall any State deprive any person of life, liberty or property, without due process of law,”.

      I guess it just depends on how the term ‘ILLEGAL’ was derived. If “due process of law” concluded ILLEGAL there really isn’t much a convicted criminal has rights to especially when the 14th Amendment doesn’t even include them in “the people” of the Bill of Rights.

      1. Deportation don’t deprive anybody of life, liberty, or property. In particular, since illegals don’t have a right to be in the US in the first place, deporting them doesn’t deprive them of liberty.

        It’s analogous to trespass: if you trespass on my property, I can remove you without due process. If you think I wasn’t entitled to do that, you can file a civil claim after you have been removed.

        1. “since illegals don’t have a right to be in the US in the first place, deporting them doesn’t deprive them of liberty.” —

          Sounds perfectly reasonable to me… Great response…

  6. The people that want to strip us of our rights are the same kind of people who think that there is a coming age where their preferred political party will rule in perpetuity.

    In other words, they’re stupid people.

    1. And when they find out that it’s not the case, the put on black masks, riot, break things, burn cars, attack journalists…

      Never underestimate the power of stupid people in large groups.

      1. Actually, “the people who want to strip us of our rights” usually find out why they shouldn’t have done so as they are carted off to reeducation camps, or lined up against the wall and shot, as they usually are as soon as the Man on the White Horse and his brownshirts/red guard/whatever have control.

        And the academics and intellectuals, as they are herded to the head of that line, are always utterly surprised that this is the result of their meddling.

        1. Indeed, once the revolution is over, the new order has no use for revolutionaries.

    2. Well, they might be right in that their party will come to power. It’s what that party will do to STAY in power that they won’t be happy with. And they’ll only have themselves to blame.

      Socialism is usually voted in (the former republics of eastern europe, going Communist once the Red Army came marching in 1944-45, would be an exception) but is ALWAYS SHOT OUT OF!

  7. DC’s Chief of Police apparently doesn’t think too highly of due process rights either.

    From article:
    [D.C. police Chief] Newsham said he cannot think of any circumstance where a person with probable cause to be charged in a homicide — especially when a gun is involved — should be released back into the community.

    “I don’t think the right of that individual criminal defendant who has been, with probable cause, found to have committed murder, that his right (is) more important than the rights of all the other people who live in that community to be free from the fear of violence,” Newsham said.

    https://wtop.com/dc/2020/02/exclusive-dc-police-chief-criticizes-judges-decision-to-release-teen-charged-with-murder/

    1. That’s common sense. The Constitution doesn’t absolutely guarantee a right to bail, but only that it, as well as fines, not be “excessive” (e.g., as a tactic to deny w/o cause, or to punish too heavily).

    2. That’s how the system used to work for everybody: police arrest you with probable cause and you’re held in jail until the trial.

  8. Being a Canadian right now under this bunch of incompetent and arrogant ideologues is more than that.

    Can’t believe the level of asshattery with this bunch in Ottawa.

    1. Next to last in the Atlantic Division. Pretty bad.

  9. “My problem, though, is when Garber seems to take aim at the notion of due process itself:”

    Speaking of Canada, look up Justin Trudeau and his abuse of the rule of law in the SNC-Lavalin scandal and his four ethics violations. Also look at how he uses instruments of the state to attack journalists. And Canadians saw fit to put this lawless bozo back in power. smh.

  10. While Mr. Greenhut has a point it is really all sides that would end due process for their opponents if they could. There is not evidence that Hunter Biden did anything wrong and yet he is accused in an effort to clear President Trump. There is plenty of cases where Republicans have accused people like Hillary Clinton, James Comey and Andrew McCabe only to see those case dropped. We talk about conservatives being silenced, but some of the most conservative people get air time while their true equivalents are silenced. How often has Noel Chomsky or Angela Davis gotten air time. Who has and who has not due process rights seems to be in the eye of the beholder.

    1. “Who has and who has not due process rights seems to be in the eye of the beholder.”

      Which is precisely how it’s not supposed to be used.

      1. Pretty obviously signalling that due process being in the eye of the beholder are a problem when he can’t thumb his opponents in the eye to me.

        Hunter Biden’s due process rights were violated! By whom?

        1. “”Hunter Biden’s due process rights were violated! By whom?””

          The dem’s impeachment inquiry perhaps? Sure, I know it’s a political process and wasn’t a trial. But they did more damage to the Bidens than any announcement by a Ukraine President could ever do.

    2. “”How often has Noel Chomsky or Angela Davis gotten air time.”

      Check with the mainstream media on that.

      Also, due process is not about who gets one someone’s tv/radio show.

    3. “There is not evidence that Hunter Biden did anything wrong”

      Could you give me one credible explanation as to why he was on the board of Burisma that doesn’t involve some form of chicanery.

    4. There is not evidence that Hunter Biden did anything wrong and yet he is accused in an effort to clear President Trump.

      WTHF? In what government or court of law were Hunter Biden’s Due Process rights violated?

      1. Modern feelz that hunter is being treated unfairly (he doesn’t know why he feels that way, but it’s besides the point) thus hunters due process has been violated.
        It’s not supposed to make sense, it’s supposed to obfuscate

    5. How is having a personal opinion on their actions being criminal and believing they should be tried an infringement of their due process?

    6. What are you on about? Hillary Clinton objectively violated 18 USC and James Comey “interpreted” it in a way it has NEVER been interpreted. And Andrew McCabe lied under oath THREE TIMES to OIG investigators and FBI agents.

      And who is Noel Chomsky?

      You have to be trolling with this incoherent mess…

    7. “…How often has Noel Chomsky or Angela Davis gotten air time…”

      It’s hard to believe the number of lefty fucking ignoramuses who think other lefty fucking ignoramuses haven’t been given enough ink.
      Moderation4ever, fuck off until you do some reading; your un-schooled adolescent whining is beyond annoying.

      1. To be fair, Noel Chomsky really hasn’t been heard of. I have never heard of him.

        1. He’s a contemporary of George Vidal

  11. “Some progressives want to rewrite the Constitution. “The Constitution is a political blueprint for a time when white people owned black people, the average life span was 35 years old, and news was spread through people yelling on the street,” wrote one contributor on Huffington Post.”

    Would you expect anything less from illiterate and illiberal progressives?

    Of course they’d take this lazy and superficial stance. It stands in their way to controlling the masses.

    The Constitution’s universal themes are timeless and quite clear in their profound purpose.

    Only a mind set on deliberately misrepresenting it would miss the point of the exercise.

    Those minds usually being from the left of course.

    1. Lefties are so stupid. If it weren’t for that White person blueprint, there likely would not be a United States nor any of the current government to complain about.

    2. The majority of the signers of the Constitution did NOT, in fact, own any slaves. Never mind that slavery was, contrary to what’s commonly supposed, still LEGAL in most states North of the Mason-Dixon line until the War of Confederate Independence itself, just not commonly practiced.

    3. I loved that one too -> progressives, “The Constitution is racist!!!!”

      You can pretty much summon the lefty mindset as being, “If I cannot >TAKE< from others exactly what I want then its Racist, Sexist or Authoritarian." ("I have endless needs")

      Inside the leftist mind, "Power = Wealth". If anyone doesn't have "Wealth" its solely because of their Color, Sex or President or whatever niche clan/mob thy classify people in. There is no such thing as Individual's creating value ("You didn't build that" – Obama) it's ALL about fascism (Color, Religion, Sex, etc.. etc.. etc..) and somehow they've pulled off the "wolf in sheep's" clothing by self-proclaiming to be the non-fascist while simultaneously being the very DEFINITION of fascism.

  12. We must remember, or become aware, that almost all the ethics and ideals that the founders attempted to promote, including in the Constitution, contradict human nature. Tribalism, willful ignorance, special pleading, spitefulness, cultish hero worship, nannyism, and authoritarian tendencies all come naturally to at least some of us. Ideals like equality under the law, freedom of speech, and the general sanctity of the individual above the group are counter-intuitive and require deliberate effort.

    1. weaning off of mothers milk (GOV) might require “deliberate effort” but it should be a pretty “natural” process for most mammals.

      Problems of Nature occur when it becomes *easier* to politically self-proclaim and advertise a need/disability/minority (i.e. Racism, Sexism or Equality) and make it the “path of least resistance” to dinner time. 🙂

      1. Perhaps the absurdly over-extended 18-years of weaning (to adulthood) the [WE] foundation has legislated just might be the very reason we have 18+ years olds still pandering on mothers milk (GOV). Is there really any other mammals on the planet that NURSE for 18-YEARS!!!

        One would think that the most intellectually (brain development) species would require substantially LESS time not substantially MORE time to wean off mothers milk.. 18-Years of indoctrination, 18-Years of “special” privileges. 18-Years of “your too stupid to think” let alone “work” and find a way to be of any sort of VALUE to others….. Children are legislatively tied to WELFARE (gimme, gimme, gimme) system for FAR too long.

        1. “Communism, It’s for the Children…….”
          Will probably be the very root-phrase that will destroy this nation.

  13. Who’s political opponent is Harvey Weinstein?

    I have issues with rules of evidence and statutes of limitations changing, with the forgetting that in a criminal trial one must be allowed to mount a defense[like have a date attached to an offense so one can show proof one was there or not]

    However, Weinsteins trial is not a political event. He is a scumbag, being tried for scumbag offenses.
    so unless there is a scumbag politicla movement, I hesitate to think who his political rivals are

    1. Ah, but as much of a scum bag as Harvey Weinstein appears to be, he’s still under a presumption of innocence which the state, in the criminal court, must prove his guilt of offenses beyond reasonable doubt.

      What’s troubling is that it appears that much of the case amounts to a “he said, she said” scenario, which should constitute reasonable doubt, e.g., he walks, and yet THAT, in this “me, too” hysteria is considered sufficient to convict of forcible rape. As much as I’d like to see Weinstein get his just desserts, we have to step back and say, NO, that’s WRONG.

  14. We SHOULD rewrite the Constitution. I know many libertarians don’t buy the whole idea of a social contract theory of government – but it IS the governing idea we were founded on. And common law, properly, developed legal rules against perpetuities because that turns into governance by dead hands (mortmain). What is a 230 year old Constitution but a perpetuity?

    All of those institutions set up then have become very dysfunctional now. The amendment process has itself become a hurdle to needed change. Our discourse has become loud and painful because we don’t actually have the courage to create a Constitution that works – now – for the living – and that would be ratified now – by the living.

    If we are no longer one people, then a constitutional convention would lead to a divorce. So what? That would actually be far healthier going forward than this enforced mutual hatred that existing political parties (one more example of where our Constitution is dysfunctionally silent) find profitable to keep stoking.

    1. The amendment process has itself become a hurdle to needed change.

      The amendment process is not a hurdle, and prevents the Constitution from being updated all willy-nilly. If an amendment has enough support at the House/Senate/State levels, it passes. If not, it fails. That’s how it should be.

      Yes, we should have Constitutional Conventions more often. That’s not an excuse to rewrite the whole thing. Chances are, nothing would change, as the only thing the 2 major parties have in common is their desire for power.

      1. the amendment process is a hurdle now. The last amendment passed (in 1992) was actually an amendment that was passed by the House/Senate as one of the original 12 in 1789. Before that – there was a flurry of amendments in the 1960’s when it was very clear structural changes were needed. If you look at the history of amendments, they occur in bunches. 1960’s, 1910’s, 1860’s, 1790’s. Those are times when making amendments is probably a better way to implement change than a convention would be. But all those times in between are when a convention would work better and the in-between amendments are almost all technical rather than substantive.

        We are 50 years past the last changes. But we are not politically in some ‘only wordsmithing tweaks are needed’ era. We are in a political rage against other Americans that is being manipulated (both stoked and suppressed). Where it is clearly impossible to pass amendments through the House/Senate cuz of partisan splits. The last one that passed there was in the 1970’s – and all of their amendments now have time limits attached.

        If we could – this would be the time for amendments because of the risks of a convention. But we transparently can’t do that now.

        1. So what do you propose in passing new amendments? Simple majority?

          1. Ultimately, that doesn’t matter until he can get an amendment passed that changes the Constitutional process for amendments.

            Unless he’s saying we should bypass the Constitutional process (which is what it sounds like since he believes its impossible to pass an Amendment through Congress or a Convention), which would definitely spice things up a bit…because once the Government bypasses one Constitutional process, they’ve invalidated every other Constitutionally granted authority and every law that was passed under that authority.

            We’d get to see what the Failed States of America would look like…

            1. Do you think the Constitution came into existence following the Articles of Confederation’s rules for amending the Articles? No. They met at Annapolis – called for a grander convention at Philadelphia – and quickly realized that the problems could not simply be attached to the Articles. So they created an entirely new Constitution from scratch.

              THAT is the ‘failed states of America’ that you are clinging to 230 years later. You’re just another R blowhard chickenshit who wants to yap about changing this that and the other until it might actually happen. And then whoosh – resist all possible change.

              1. Did you have a point in there of interest to other than lefty hack like you?
                Yes, it was a new Constitution; so what?

          2. No I propose an Article 5 convention. The partisan BS is currently far more ossified and intractable than the two periods (1910’s and 60’s) when amendments could pass. 1860’s was more a true property dispute (slavery and free labor could not co-exist in federal territory which was roughly 50% of the total) – and that takes a war not a constitutional convention to resolve.

            But the amendment provision was only put into the Constitution at the last minute because the convention realized they might need to amend it in order to get it ratified. They would have been fucking gobsmacked at how stupid we are in thinking that that is a SUBSTITUTE for a convention.

            1. And frankly, it doesn’t even need to ‘ask permission’ to convene. Any large truly representative assembly that is able to agree on changes that are perceived as important WILL also be able to persuade others of that. And at a certain point, the powers of DeRp will either resist or yield.

              We have become far too cowardly re our own self-governance.

              1. “…We have become far too cowardly re our own self-governance.”

                You are far too stupid to trust for a change in anything like the Constitution.

        2. “…the amendment process is a hurdle now.”

          It is specifically a “hurdle” to keep people like you from altering it because of your TDS.

          1. EXACTLY what I was going to say – “the amendment process is a hurdle” … ON PURPOSE BECAUSE … the nation isn’t based on “mob” rule and you cannot protect claims of Individual Rights in a “mob” rules system. That’s why it’s nick-named the Supreme Law (above and beyond all other standard “mob” rules guidelines).

            It is the Supreme Law because it is “The People’s” contractual rule over their own government. The only problem I see is the governmental system pretending they don’t have a Supreme Law (enforcement there-of).

        3. It’s SUPPOSED to be a “hurdle”! Of course, the Founding Fathers, perhaps naively, felt that when an amendment was proposed, it was in the spirit that here’s an issue, important enough to warrant amending the Constitution, that transcends partisan politics.

          At least one faction has all but descended into utter madness, and the other has too much vested in the system but to go along, at least in part.

          1. Well Washington’s Inaugural specifically addressed Article 5 stuff.

            I assure myself that whilst you carefully avoid every alteration which might endanger the benefits of an United and effective Government, or which ought to await the future lessons of experience; a reverence for the characteristic rights of freemen, and a regard for the public harmony, will sufficiently influence your deliberations on the question how far the former can be more impregnably fortified, or the latter be safely and advantageously promoted.

            THAT is the extent of the hurdle. It is not a hurdle solely limited to those living then. Nor is it intended to be a hurdle created by worshiping the necessary technicalities of passing an amendment.

            It is a hurdle that is intended to be continually challenged over time by a people cognizant of the benefits of being united in governance and continually seeking to improve that governance. If we no longer possess that, then we are no longer ‘We the People’ and should instead figure out the terms of divorce. So that those goals CAN be achieved in smaller entities that DO understand the responsibilities of self-governance.

            1. You’re missing the whole purpose of the Constitution on this one.

              The Constitution isn’t a “Law over The People” its “The People’s (Founders) Law over their newly created Government (The Supreme Law)”. The founders wanted ‘Limits’ on government.

              You are absolutely correct that “We the People” in the Preamble is entirely exclusive to the founders and their generation (the time ‘We the People’ was written) and it was MEANT that way on purpose to !!!-PERMANENTLY-!!! instill Individual Freedom NO MATTER WHAT the [WE] foundation (i.e. “mob” rules (collective, group, mob, gang)) decides.

              If a later generation want’s to change/dismiss articles of that initial Contract they CAN but only by garnishing a 2/3rds vote of Congress and State Ratification.

              It was never meant to be a “living” document – it is by generally PERMANENT for the very reason EVIL vs GOOD is a permanent principle. Individual Freedom/Rights was instilled to be a fairly permanent principle of the nation. We cannot champion “Freedom” if its voted away by a 50:50 “mob” rule.

              1. Washington’s words are far clearer than yours. Without the fetishizing

                1. More specifically:
                  We the living (not the dead) should be the ones defining the benefits of United and effective government for ourselves.
                  We the living (not the dead) should be the ones who have learned the future lessons of experience
                  We the living (not the dead) should be the ones who best understand how to fortify our own characteristic rights of freemen
                  We the living (not the dead) should the ones who best understood the current circumstances that allow us to advantageously promote the public harmony

                  Your fetishizing of what the dead may or may not have thought back then merely means you are unwilling to speak to those who are living around you. You are looking for a memorial not a constitution.

                  1. More specifically:

                    You ARE proclaiming, “The Constitution is/should-be Dead.” and that is exactly the equivalent to proclaiming the USA is/should-be Dead. (Is that your main point and angle?)

                    The Constitution *IS* the very defining document as to exactly what the USA *IS* as well as what it stands for…. Frankly; if you don’t believe in it; you should move to somewhere besides the USA.

                    What makes you think the living today has the authority to define what the USA is instead of the *founders*??!!!?? You know what kinds of countries pretends the “living” generation gets to decide what a nation is???? Iraq, Iran, (ISIS, ISIL) etc, etc, etc… If that’s the kind of nation you want; you should go there.

    2. A constitutional convention wouldn’t lead to a breakup of the US, it works lead to a European style Federal government of limited, enumerated rights, with a strong socialist component.

      1. If that is the case, then why would you insist that that supermajority be coerced into living under a form of government to which they do not consent?

        1. … And you are pretending that the USA is *already* a European style socialist government that, “insist that that super-majority be coerced into living under a form of government to which they do not consent”.

          That is BECAUSE you believe that the U.S. Constitution is/should-be dead!!!!!!!!!! The Constitution is what PROTECTS Individuals from being coerced under a form of government they do not consent to….

          It is the very thing that instills INDIVIDUAL FREEDOM over “mob” rules. While you “see” that Congress has been completely ignorant of the Constitution you do not seem to understand that the ignorance of it is exactly what you’re opposed to.

          1. Or…. Maybe you’re not and do believe the “mob” should rule over ALL/EVERY individual person. You don’t seem to acknowledge any difference between a lynch mob (The [WE] foundation) and an individual person.

  15. In 2018, the president called for stripping illegal immigrants of any right to due process.

    You mean by saying that when you cross the border illegally, we should be able to just send you back as soon as they’ve established that you’re not a citizen and don’t have a valid green card or visa, without going through months of court proceedings (which the illegals won’t show up for anyway)?

    I’m not opposed…they’re not being imprisoned or deprived of any rights by being deported. The courts have never ruled that there is a legal right for non-citizens to immigrate to the United States. They’re simply returning them to the country they came from.

    1. Or maybe arresting US citizens who they think are illegals, or legal residents who they don’t believe are legal, or just brown people in general ?

      How does one differentiate without due process?

      I get it, it doesn’t affect you, so it is unimportant

      1. So they have these new things the kids have been using for the last 40 years called “databases” that have records of everyone who holds a green card. It’s really amazing…people get entered into this “database” whenever they get approved for government documents, and the records get published. And when you wonder if someone has a green card, you go to the “database” and do what’s called a “search” and find out if they’re on the list.

        And then if they’re not, you ask them for this thing called “documentation”, that’s given to them when they get a green card or a visa or whatever…and if they don’t have that, it means that they’re probably not a holder of that green card, or visa, or whatever.

        Truly revolutionary stuff.

        1. I’m not in that green card ‘database’. Bet you aren’t either.

          Nor am I slightly interested in government having a fucking database that they can use to simply expel someone they don’t like who isn’t in that database.

          That said, I do think that anyone who can’t see the problem here should simply be shot on sight.

          1. Why would I be in a green card database as a U.S. citizen? I have a birth certificate that I can present, along with a Social Security Card, passport, and multiple forms of identification, as well as a very long paper trail, so I don’t need to be in a green card database. I can prove my citizenship (and have done so multiple times) quite easily.

            And they’re not “expelling people they don’t like”. They’re expelling people who crossed the border illegally in violation of longstanding federal law. That’s the same reason the government throws people in jail for murder, theft, rape, kidnapping, etc….because they committed a crime that violated a law on the books. They shouldn’t have to go through a prolonged court hearing for people who came across the border illegally, aren’t citizens, and have no valid visa or green card. And it doesn’t take very long to determine whether they’re illegal…they either have citizenship/approval for residency or they fucking don’t and they should be transported back across the border.

          2. That said, I do think that anyone who can’t see the problem here should simply be shot on sight.

            That’s why libertarians are considered a joke by most of the people who’ve heard of them. Not only are your arguments stupid and based on a grade school naivete of how the world works, but you usually sum up with a comment that’s both idiotic and puerile and perfectly illustrates why Libertarians hold exactly zero seats in Congress and can’t even get a double digit percent of the vote in a presidential election where a large portion of country hates both major party candidates.

            Actually, calling a libertarian stupid is probably an insult to stupid people. “Libertarian” should probably be considered a slur at this point because of how pathetically people like yourself represent it.

            1. Jfree is not a libertarian.

              1. JFree is NOT a libertarian; JFree hopes to support positive rights as “libertarian”.
                Read JFree’s posts; JFree is a lefty flying a false flag, and is not at all shy of doing so.

      2. Being able to prove your legal presence in the US is your responsibility. It’s not the government’s job to prove beyond a reasonable doubt that you are not a citizen, just like it’s not your bank’s job to prove beyond a reasonable doubt that they don’t owe your a million dollars. Citizenship, like anything else of value, is something that you have the responsibility to be able to prove ownership of.

        Furthermore, citizenship is easy to establish: birth certificate, certificate of naturalization, or any one of dozens of documents.

    2. “In 2018, the president called for stripping illegal immigrants of any right to due process”

      HUH… And somehow I thought using the term ILLEGAL was the result of due process.

      1. Can we go ahead and say, “The president called for stripping criminal people of their natural rights of freedom” too???

  16. The privileging of “active” government(in service of whatever cause) will inevitably lead to erosion of individual due process rights. Too many people think that the business of government is to kick “those other people” into line with what they, the majority, think is right/best.

  17. The jackbooted thugs at immigration think nothing of detaining US citizens they do not like, so there is that

    Since 2012, ICE has released from its custody more than 1,480 people after investigating their citizenship claims, according to agency figures. And a Times review of Department of Justice records and interviews with immigration attorneys uncovered hundreds of additional cases in the country’s immigration courts in which people were forced to prove they are Americans and sometimes spent months or even years in detention.

    1. So you’re saying that they detained people under suspicion of committing a crime, determined they were not guilty of that (since they were citizens), and released them without charge.

      That’s called policing…it’s how most law enforcement operates.

    2. “Since 2012, ICE has released from its custody more than 1,480 people…
      We’ll call it 7 years, not including part of 2020. That’s 211 people per year, which sounds a bit nasty until you do the least little bit of research, which I’m sure our newest lefty fucking ignoramus didn’t bother with, since it’s easy to cut and paste from some brain-dead lefty site.
      Let’s just pick “persons removed or returned” for, oh, 2014:
      446,223.
      And, why not “Immigrants” in 2018:
      44,728,721
      I’ll provide a cite since shitbag’s seems to have been eaten by his TDS:
      https://usafacts.org/issues/immigration/?utm_source=bing&utm_medium=cpc&utm_campaign=immigration&msclkid=40612cf4691c1044e19b72a4ec9d863b

      Yep, those jackbooted ICE folks are making mass arrests, right? Ha and ha, asshole.

      Are you going to join trueman and M4e in claiming the left doesn’t get any exposure in the US? They both are using the same talking points; I’m sure you can find where it comes from so we can laugh at you. Again.

    3. What’s disturbing is the games they play at these INTERNAL checkpoints, detaining people they know damned good and well are US citizens, just because they don’t comply with the “song and dance”.

  18. from ‘the appeal’
    Was it racism or incompetence (or some combination) when ICE detained Davino Watson, a U.S. citizen who happens to be Black, for over three years while he tried to prove his citizenship without access to an attorney? When ICE finally released Watson, who was from New York, they left him in rural Alabama with no money and no explanation. They kept trying to deport him for another year. (A court later ruled that he cannot sue because the statute of limitations expired while he was detained.) Was it racism or incompetence when, in March of this year, CBP detained 9-year-old Julia Medina for 32 hours without her parents, despite her being a U.S. citizen? She was crossing the border, as she does each morning to get to school, when CBP detained her and her 14-year-old brother, saying she didn’t look like the photo in her passport. They also accused her brother, also a U.S. citizen, of human smuggling, and tried to have him sign a document saying his sister was his cousin.

    1. It was incompetence, on the part of Davino Watson. He was a naturalized citizen through his father, and he should have obtained a certificate of naturalization.

  19. no need for due process: ABC news
    In 2014, after serving in the Marine Corps for nearly three years, Jilmar Ramos-Gomez returned home to Grand Rapids, Michigan, where he was born and raised, and found himself struggling with post-traumatic stress, not able to adjust to his new life as a civilian.

    He says he reached a breaking point when he suffered a psychotic episode on Nov. 21, 2018, and was arrested by the Grand Rapids Police for trespassing on the roof of a local hospital.

    Ramos-Gomez was not a patient but went there because he was struggling with his post-traumatic stress, according to Miriam Aukerman, his lawyer and a senior attorney with the American Civil Liberties Union in Michigan.

    Following his arrest, Ramos-Gomez was booked into the Kent County Correctional Facility, a jail in Grand Rapids.

    An ACLU lawsuit says he was then detained by Immigration and Customs Enforcement (ICE) without probable cause and held in a detention center for three days, despite his having — and ICE knowing — that he had multiple means of identification in his possession showing he was a U.S. citizen — including a REAL ID driver’s license and U.S. passport.

    1. Why did you skip over the part where he physically attacked a senior NCO?

      1. Narrative is the priority.

      2. That answers why he was booked into the Kent Country Correctional Facility. But it doesn’t answer why he was transferred to custody of ICE and ICE ignoring his REAL ID license and US passport.

      3. Why leave out the part where he should not be held by ICE ever for any reason,

        1. So your argument is that all ICE agents should automatically know whether the people they detain are innocent, even if they’re given information that they’re criminals and it takes a couple of days to gather information to sort it out.

          How fucking old are you?

        2. “Why leave out the part where he should not be held by ICE ever for any reason,”

          Why don’t you link that part so I don’t have to waste time looking for some claim by a known liar?

        3. Because that’s not true, both as a matter of law and as a matter of principle. In many circumstances, ICE can and should be able to detain people whose citizenship they can’t ascertain.

    2. Correct: there is no due process for immigration detention or deportation. That’s a legal fact. If you want to change that, you need to come up with arguments why there should be and convince people to pass a constitutional amendment.

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  21. “Some progressives want to rewrite the Constitution.”

    Really? Most conservatives had already effectively rewritten the Constitution by supporting the President in entirely ignoring this clause.

    Article I, Section 2, Clause 5:
    The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.

    The power of impeachment belongs solely to the House. When the President blanketly ignores impeachment subpoenas, he has usurped that power.

    1. Where’s your “impeachment subpoenas” power?

      Can I play that game too… How about the “impeachment void” power? or the “impeachment bs” power? As long as I chop a single word and paste it on the header its all the same. Right?

    2. What impeachment subpoenas? The House asked for witnesses, and the President said “not without subpoenas” and the House said “Well, we won’t send you subpoenas, because you’ll just challenge them in court.”

      Never mind that Presidents *always* challenge subpoenas, because there’s this funny thing called “Executive Privilege”, and the courts like to preserve this “Executive Privilege” except when there’s enough evidence to justify its suspension.

      Never mind, too, that *every* President has gone through this process, with the possible exception of Williamson, but only because it’s hard to go through this process when your term is only one month long before you die.

      If Democrats really believed they had evidence that would hold up in court, why didn’t they issue subpoenas? “Impeachment power” isn’t some unlimited power to fish for wrongdoing!

  22. “Americans are so locked into their political sides that many of them seem willing to cast aside some of the nation’s long-established constitutional protections.”

    Americans are the dumbest motherf***ers on the planet.

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  24. Political parties are NOT in the Constitution. Richard Nixon and congress put entrenched party subsidies into the IRS code within 24 hours of the Libertarian Party organizing. That stolen bait attracts the hate. Those campaign subsidies have spread to to other countries, fostering corruption abroad. I enjoy telling voters to listen to what looter politicians say about each other, then vote Libertarian.

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  27. What’s that? “Americans” never read the contract (Constitution) before they signed it?
    No Treason
    The Constitution of No Authority
    by Lysander Spooner
    https://jim.com/treason.htm

  28. “The right has pushed the boundaries, too. In 2018, the president called for stripping illegal immigrants of any right to due process.”

    The UNITED STATES constitution only guarantees rights to UNITED STATES citizens. That is all.

    1. Not when it comes to due process. It says “no person” that language is deliberate and has always been interpreted to apply to both citizens and non citizens.

      1. Indeed it does. But due process doesn’t apply to deportation because deportation doesn’t attempt to deprive non citizens of anything they have a right to in the first place. That’s not my opinion, that’s long standing legal reality in the US. That’s why Congress could pass expedited removal.

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