Shut Down for COVID-19? Locked Up for Demonstrating? Habeas Corpus and a Good Judge May Set You Free

What does someone mean when they talk about American exceptionalism? The realization that government is not inherently good, and that governments will overreach and will oppress the masses if given an opportunity to do so. America’s founding fathers crafted the US Constitution with these truths in mind, and for the first time, rule of law meant restricting the acts of government, not the citizenry. 

In Federalist No. 51, James Madison eloquently described this tendency of government to usurp power and authority.  He wrote, “If men were angels, no government would be necessary. If angels were to govern men, neither external or internal controls on government would be necessary.”  Madison knew the reality when men are given the task of governing other men.  This reality involves giving the government the authority to control the governed while at the same time, trusting that those with this authority show restraint to some extent by offering recognition of an individual’s God given rights. 

Every time a law enforcement officer arrests an individual, it is understood that they are doing so with probable cause, and that this infringement on one’s individual rights is justified under the law due to the fact that they have violated criminal law within the officer’s legal jurisdiction.  Sometimes, this legal process is circumvented when people cut corners, or avoid the process all together.

Writ of habeas corpus can be invoked if a person feels that they are being unlawfully incarcerated. Here they can present evidence to support their argument through a court order that demands a public official bring the accused before a judge.  A valid reason must then be given for their incarceration proving that it was done on a lawful basis.

Recently we have been subject to a nationwide economic shutdown due to the COVID-19 virus that has been front and center in the news for the last two months.  Since then, states have started easing restrictions on business operations as protests spread from state to state.  These restrictions on private participation in commerce have all been done through governor’s decree, not through state legislatures because they argue that it is too dangerous for our elected officials to do their jobs, as so many other have during this so called, “crisis.” 

Law enforcement has been enforcing these governors’ executive orders as though they were existing criminal statutes.  The arrests being made are not lawful and habeas corpus is relevant here to all that have had their rights violated by this usurpation of authority.

The USA Patriot Act was the first legislative power grab that creates provisions for eliminating writ of habeas corpus. The National Defense Authorization Act (NDAA) is another legislative monstrosity that is still renewed every year by congress. It includes federal funding for the military, homeland security, and also allows for the federal government to incarcerate an individual without charging them with a crime.  This incarceration is indefinite and there is no time frame put forth for the government to present charges or probable cause.

Someone’s someecard (from some Obama days, by the way) – GB

The only trigger that is needed to implement this detention is a declaration that you are a suspected terrorist.  No explanation is required in the instance that this measure is taken, habeas corpus is also suspended indefinitely. Every year the NDAA is renewed by congress and is signed by the president with this draconian measure present, and few have come to the defense of the constitution to ask that it be taken out of the legislation.  This is always sold to the American public as a necessity, if we want to be protected from terrorists.  Terrorism, white supremacy, deadly viruses, or any other big bad boogeyman that we are told to be afraid of. 

Rand Paul is one of the few brave souls that has argued against this violation of basic rights on the Senate floor, but he is only one person.  It is scary to think that our elected officials are ok with this kind of tyranny that is woven into the NDAA.  This is why we must remain vigilant and hold their feet to the fire when it comes to these important issues.  The government does not give us or allow us our rights, as they are only recognized in our founding documents.  Our rights are given to us by God Almighty, and with those divine gifts comes the realization that no “man” can take away any of those rights.  Our liberty come from God, not Uncle Sam. 

Comments

  1. Excellent article…rite to the point.

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