Home Budget & Tax News Napolitano: Can Federal Judges Alter the Constitution?

Napolitano: Can Federal Judges Alter the Constitution?

No person shall be … deprived of life, liberty, or property without due process of law.” — Fifth Amendment to the U.S. Constitution

Last year, a detainee at the U.S. Naval Base at Guantanamo Bay, Cuba, filed a writ of habeas corpus in a federal district court in Washington, D.C. — to which all cases from Guantanamo have been assigned — and it was denied because he was not in the United States.

A writ of habeas corpus is the ancient individual right of every person confined by the government to require the government to justify the confinement under the law to a neutral judge. That right is guaranteed by the Constitution. This is so because the framers, who knew of summary incarceration by British authorities, made certain that the new government here could not treat any persons as the British government had treated the colonists.

One of the arguments that the British government had made was that the rights of Englishmen — which included the right of habeas corpus — only applied to persons in England. So the framers included language in the Constitution that prohibited the suspension of the right except in cases of rebellion or invasion of such magnitude that the courts could not sit. Like most rights in the Bill of Rights, the Constitution does not grant the right of habeas corpus — which comes from our humanity — but prohibits the denial of it.

When Congress attempted to suspend the writ of habeas corpus in 2006, denying the jurisdiction of federal courts to hear habeas applications from any detainee at Guantanamo Bay, the Supreme Court, in a landmark case called Boumediene v. Bush, invalidated Congress’ attempts to interfere with the application of constitutionally guaranteed liberties. It did so for several reasons. There was no invasion or rebellion in the U.S. preventing the courts from sitting. And, assessing the validity of constitutional rights is a judicial not a congressional function.

It also ruled that all people detained by the U.S. government have the right to compel the government to justify the detention in a federal court.

The court reviewed the efforts of British monarchs to move prisoners to far-off places, and American forces in wartime doing the same, to argue to courts that the rights guaranteed to people in the British or the U.S. constitutions only applied in areas over which the governments had sovereignty.

The court rejected that argument and basically ruled that wherever the government goes, the Constitution — and thus the rights it guarantees and the restraints it imposes upon government — goes with it.

That has been the law of the land for all persons in custody — no matter their place of birth or place of detention or how they got there — until a decision of a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit. The recently invalidated ruling came down during the 2020 presidential campaign and never made the front pages.

That 2020 decision, which rejected the petition for habeas corpus filed by the detainee at Guantanamo Bay, purported to change the law. It held that unless a detainee is physically present in the United States or has property here, he is not entitled to habeas or due process relief.

There are two constitutional principles at stake. The first is habeas corpus, and the second is due process. The detainee who sought habeas corpus was met with a judicial decision that denied him both. It also purported to change the Constitution by adding the physical presence of a person or property as a precondition to exercising his fundamental rights.

These judicially crafted preconditions appear nowhere in the Constitution or in the Boumediene case. In fact, they defy both. If the physical presence of the person or his property were required before the courts could hear his case, then the feds could keep anyone out of court by converting his property and taking him out of the U.S. That would give the government the legal equivalent of a light switch with which to turn on or off anyone’s due process or habeas corpus rights.

It was no surprise, but it got little notice, when the full U.S. Court of Appeals late last month vacated the decision of the three-judge panel and agreed to hear the case this fall.

All of this leads to profound questions. Did the framers mean that the government could move someone and his property around so as to escape judicial review of his confinement? Do our rights really come from our humanity as the Declaration of Independence and the Ninth Amendment declare? And if they do, how can the government switch them on and off at its convenience?

The right to due process — written notice of allegations, a hearing before a neutral jury with constitutional protections, an objectively fair process that includes the right to appeal — expressly protects all persons; thus, it is not limited to citizens. The government’s assaults on liberty are unending. It has even attacked personhood, and twice succeeded.

The government argued and the court ruled in the Dred Scott case that blacks are not persons and in Roe v. Wade that babies in the womb are not persons. Dred Scott was reversed by the War Between the States and the 13th Amendment. Roe is, regrettably, still with us.

The point of all this is the Constitution should mean what it says. The government has no lawful or moral power to switch our rights on and off. Judges cannot add to the Constitution’s requirements nor subtract from its protections. If these principles were not so, then no liberty would be safe.



Judge Andrew P. Napolitano
udge Andrew P. Napolitano is the youngest life-tenured Superior Court judge in the history of the State of New Jersey. Now, Napolitano works as Fox News’ Senior Judicial Analyst, Judge Napolitano broadcasts nationwide on the Fox News Channel and the Fox Business Network, and lectures nationally on the U.S. Constitution, the rule of law, civil liberties in wartime, and human freedom.


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