From the October 2002 Idaho Observer:

What is due process? What happens in its absence?

by Hari Heath

The 5th and 14th Amendments to the Constitution declare that no person shall be deprived of life, liberty or property without due process of law. But what is due process of law? What kind of due process created our nation?

If we the people of this nation were to enjoy due process in our courts, the crumbled foundation of justice upon which America was built would be restored.

Though there are many definitions and interpretations for “due process of law,” a common thread of modern legal maxims gives two criteria for due process: “Notice” and “a meaningful opportunity to be heard.”

If a person involved in a case isn't “notified” of the proceedings, there is no due process. And, if for any of many reasons, the proceedings fail to provide “a meaningful opportunity to be heard,” there is no due process.

Where is our meaningful opportunity to be heard in a modern court when judges control the law, the rules, the evidence, the attorneys and the jury? What due process of “law” exists when unelected bureaucrats promulgate their own administrative edicts and execute them on the public by issuing decisions that deprive people of their life, liberty or property? Do appeals to contemporary courts provide any hope that due process of law will be followed and that justice will ultimately prevail?

Consider the IRS and the income tax. Thousands of citizens have put the government on “notice” that the income tax is an unconstitutional extortion racket. Mountains of evidence covering many facets of the issue await an answer. Truckloads of notices, complaints, briefs and petitions have been delivered to the appropriate agents and agencies of government. To date, all petitions for redress of grievances have been ignored. Where is the “meaningful opportunity to be heard” with regard to the income tax?

The American Revolution and Due Process

Our nation was born as a result of government denial of due process. Like our current tax honesty movement, our nation's Founders presented many eloquently stated and artfully presented challenges to the lawful authority of King George's policies in the colonies. They repeatedly petitioned the king for redress of their grievances -- to no avail.

Political theorist, author and latter 18th century member of the British Parliament Edmund Burke said that some of the most profound lawyers of the English-speaking tongue were found at that time in the English colonies of America. He said, “furthermore, that it was disclosed by the bookstores of London that more copies of Blackstone's [Commentaries] were sold in America at that time than were sold in London or in England.”

Thomas Gage, the British governor of Massachusetts in colonial times, said in one of his messages to his bosses in London: “I have a government of lawyers; the people are lawyers; they are familiar with your statutes; they know your laws better than you know them yourself.”

By what “due process” could our nation's founders obtain justice from a tyrant King? Ballentine's Law Dictionary (3rd Edition) begins defining “due process of law” as, “a phrase impossible of precise definition; one which asserts a fundamental principle of justice rather than a specific rule of law.”

Denied all other avenues for due process, the only due process left to them was to take up arms against the king and start the American Revolution. As Patrick Henry explained in his famous speech from 1775:

“...Shall we try argument? Sir, we have been trying that for the last ten years. Have we anything new to offer upon the subject? Nothing. We have held the subject up in every light of which it is capable; but it has been all in vain. Shall we resort to entreaty and humble supplication? What terms shall we find which have not been already exhausted? Let us not, I beseech you, sir, deceive ourselves. Sir, we have done everything that could be done to avert the storm which is now coming on. We have petitioned; we have remonstrated; we have supplicated; we have prostrated ourselves before the throne, and have implored its interposition to arrest the tyrannical hands of the ministry and Parliament. Our petitions have been slighted; our remonstrances have produced additional violence and insult; our supplications have been disregarded; and we have been spurned, with contempt, from the foot of the throne! In vain, after these things, may we indulge the fond hope of peace and reconciliation. There is no longer any room for hope. If we wish to be free -- if we mean to preserve inviolate those inestimable privileges for which we have been so long contending -- if we mean not basely to abandon the noble struggle in which we have been so long engaged, and which we have pledged ourselves never to abandon until the glorious object of our contest shall be obtained -- we must fight! I repeat it, sir, we must fight! An appeal to arms and to the God of hosts is all that is left us!...”

Due process created America

Notice was given in the form of the Declaration of Independence. The meaningful opportunity to be heard began on Lexington Green with the “shot heard 'round the world.” And, once the English were forced to listen, the cause of American liberty began its new course under the Constitution.

The hole in the constitution

The Constitution is a marvel of construction, especially considering it was then a radical departure from any previously known form of government. Constitutional checks and balances to limit the power of government servants to regulate citizen masters represented an unprecedented reversal of the traditional order which provided government masters unbridled authority to regulate citizen servants.

The biggest flaw in that otherwise excellent document was the creation of an unaccountable, unelected, judiciary -- members of which hold their office for life. With such competent construction of the other constitutional offices, why were the judicial offices made life long and unaccountable? Was an intentional back door left open for black-robed shadow governors? The powers of Congress and the functions of the executive branch can be interpreted and overruled by the judiciary, but who controls the judicial officers? Such unchecked power inevitably leads to corruption.

Rape?

Years ago some researchers at Berkeley conducted a study on rape. It revealed a shocking result. In their study, men were posed the question: “If there were no consequences or penalties for raping women, would you rape a woman?” Over 80 per cent of the men questioned said yes.

According to their study, with the knowledge that there would be no accountability, most men admitted they would intimately violate another human being as a matter of personal satisfaction. Are judges any different, sitting in a position of power over others?

Citizen complaints of judicial corruption have a less than one percent chance of obtaining any remedy. And most “remedies” are limited to a “slap on the hand.” Judges know this and manage their courtrooms accordingly.

With nothing to curtail judicial corruption but an almost nonexistent impeachment process or petitions to judicially controlled review bodies, our nation is in a state of judicial anarchy. Justice and due process is denied because there is no mechanism within the system to insure judicial accountability. Epidemic denial of due process phenomenon correlates neatly with the Berkley rape study.

The remedy is accountability

The judicial accountability movement has been sweeping across the nation like a forest fire lit by a forest service employee. The fire is fanned with each judicial rape of a citizen. Most states have an organization of citizens actively promoting various forms of the Judicial Accountability Initiative Law (JAIL4JUDGES.com).

What would be the result if judicial accountability became the norm? The many governmental intrusions into our private affairs would be curtailed and unlawful abuses of authority would end. The act of anchoring judges to the mandates of the Constitution and laws -- or be jailed like any other rapist should be -- would allow due process of law to be reinstated by default.

The rules promulgated by administrative agencies and forced on people could no longer be cited in court pretending to be laws. Accountable judges would have to recognize that only Congress or the legislatures have the authority to make law. Similarly, legislative bodies that pass laws exceeding their constitutional authority could find their laws challenged and defeated -- through due process assured by judicial accountability.

The return of due process would force the many government licenses and permits we must purchase to either move or stand still to withstand honest judicial scrutiny. Americans could again become a prosperous and free people if they were not forced to buy government permission every time they wanted to think or act for themselves.

The First Plank of the Communist Manifesto, the abolition of private property, as manifested in the collection of ever-increasing property taxes, would not withstand the scrutiny of judicial review. Accountable judges would again recognize patented land held in allodium, as our nation's founders intended.

The fraud of the Federal Reserve, the bogus IMF global economy, corporate corruption and the Uniform Commercial Code could be properly scrutinized and remedied under due process of law; the truth about income taxes could finally have its day in court.

Article I, Section 1 of the Idaho Constitution states, “All men are by nature free and equal, and have certain inalienable rights, among which are enjoying and defending life and liberty; acquiring, possessing and protecting property; pursuing happiness and securing safety.”.

Does such a declaration have any meaning to a modern day court?

Three opportunities for reinstating due process:

The Freedom Drive 2002, organized by the We The People Congress, promises to put the government on notice this November. Thousands of Americans plan to demand a meaningful opportunity to be heard on the tax issue with a nationwide convoy and rally in Washington, D.C. The government has ducked the income tax issue for decades, but now We The People have a chance to compel the truth by sheer volume of citizen activists descending on the capitol. Join us or sponsor an activist (see page 24 for details).

A Million Armed Man March, originally scheduled for Independence Day, 2003, by Colorado Libertarian candidate for Senate Rick Stanley, has been rescheduled to coincide with the Freedom Drive. Stanley, also a member of the We the People Congress, is hoping that on November 14, a million armed Americans will arrive in D.C. to politely deliver a message to the central governors there: We want our country back.

Pledge your support and/or participation for this event, help circulate the petition or find out more by visiting Stanley's website at www.stanley2002.org

The American people of 2002 are currently standing at the same crossroads of freedom or slavery that the American people of 1776 were standing. We must now, as they did, provide the government in Washington, D.C., with “notice” that we demand reinstatement of due process. To make certain that “our” heretofore deaf Congress hears the notice, it must be respectfully and peacefully delivered to them by a million Americans.

If peaceful methods fail.

The Second Amendment is the due process instrument of last resort. The Second Amendment is a gift from the founders of this nation who understood that the tendency of all human governments is devolution to despotism -- the suspension of due process.

As Patrick Henry said: “...The battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave. Besides, sir, we have no election. If we were base enough to desire it, it is now too late to retire from the contest. There is no retreat but in submission and slavery! Our chains are forged! Their clanking may be heard on the plains of Boston! The war is inevitable -- and let it come! I repeat it, sir, let it come.

“It is in vain, sir, to extenuate the matter. Gentlemen may cry, Peace, Peace -- but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take but as for me: give me liberty or give me death!”