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The Bill of Rights at Work


The unfolding developments in the John Walker Lindh case and the Guantanamo “detainees” situation reflect why Americans should be so grateful to our early ancestors for demanding the first ten amendments to the Constitution as a condition of adopting the Constitution.

Recall that there was tremendous resistance among the several states to the adoption of the Constitution because of the fear of calling into existence a federal government. One of the objections people raised was that there were no express guarantees that people who were accused of crimes would be accorded the traditional notions of due process of law, a legal concept that stretched all the way back to Magna Carta.

The proponents of the Constitution responded that no such express guarantees were included in the original Constitution because Americans who became public officials, either through election or appointment, would always be devoted to the principles of due process of law and therefore it was unnecessary to expressly required them to apply such principles in criminal cases. Our ancestors’s response was: “Oh, no — even a U.S. government will end up attracting Americans who do not believe in due process of law as a matter of principle, especially for criminal suspects who they are convinced are guilty.”

Fortunately, the proponents of express guarantees in the Bill of Rights won out, for in retrospect it is now clear that they were the ones who were right.

The reason that John Walker Lindh has been brought back to the United States to face criminal charges, has been formally notified of the charges against him (through grand-jury indictment), has defense attorneys, and will be accorded a jury trial with full rights of cross-examination is not that federal officials believe in these concepts as a matter of principle but rather because they feel that the Constitution (and specifically the Bill of Rights) requires them to do so — and that a federal judge will slap them down if they don’t.

The reason that the Afghan War “detainees” are being transported to Cuba, rather than the United States, is to avoid having to provide them either prisoner-of-war status under the Geneva Convention or the traditional guarantees of due process of law if they are treated as criminal suspects. Ironically, communist dictator Fidel Castro, who rules over the rest of Cuba, undoubtedly approves of the U.S. government’s conduct, for he has the exact same policy with respect to criminal suspects under his jurisdiction: people are presumed guilty, there are no grand jury indictments or other formal notification of charges, no independent defense attorneys, no jury trials, and indeterminate jail sentences.

Thus, regardless of the outcome of the Lindh case — guilty or not guilty — Americans today ought to be counting their blessings for the courage of those who demanded that the Constitution be amended with the Bill of Rights immediately after its adoption.

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    Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.