- Mar 6, 2019
- Reaction score
- Political Leaning
I agree that, litigation-wise, the 14th Amendment is the clearer statement. But the fundamental principle of Due Process is enshrined in the Constitution in numerous places. I should probably have noted that it appears explicitly in the Fifth Amendment: "No person shall... be deprived of life, liberty, or property, without due process of law[.]" Here, of course, there are two applicable points: seizure (of the person) (4th Amendment); and due process (5th Amendment). What the 14th Amendment made clear is that these conceptions are conjoined.The 4th Amendemnt is probably not the proper amendment to litigate this claim. The 14th Amendment Due Process Clause regarding the deprivation of liberty, which is what is at issue, is the proper amendment to litigate this claim.
What you said reminds me of Scalia’s dissent in Hamdi v Rumsfeld where he explores the long history of “liberty” from indefinite detention, and that is enshrined in Due Process.
I also agree that at a minimum Scalia's statement in his Hamdi Dissent that "The very core of liberty secured by our Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the Executive." is pertinent.