You are both wrong. The 5th Amendment is part of the Bill of Rights; not the Bill of Government Authorities. Its purpose is not to define or create rights for government but, instead, enumerates some of the rights of the people. Again, no power is granted or created for the government in the Bill of Rights; it serves only to restrict their authority and to protect the rights of the people.
Yes, but the ultimate end is government's power being exerted on the citizen.
The requirement of due process is two-fold; government is restrained from acting without cause in an arbitrary / capricious manner but then it legitimizes action against the citizen that falls within those burden of proof and processes and procedures recognized as 'due process'.
The phrase, "nor be deprived of life, liberty, or property without due process of law" cannot be construed as an authorization for the government to take away any right from anyone, as long as due process is permitted.
Due process is just one more multi-stage standard of action relating to burden; a bar the government must meet, that the government must "afford" rather than permit the accused / convicted before serious punitive actions are
yes, authorized.
The phrase is in the context of judicial punishment, following the protections against self-incrimination, double-jeopardy, and protection by a grand jury.
Limited to just those huh?
As he states, the due process phrase is only valuable when considered in the context of the previous statements in the 5th and in his writing.
As instructive as Rawle is, the evolution of due process has left his framework behind.
In fact, from Congress.gov, it is clearly the intent and interpretation of the due process clause that it does NOT give congress the power to do anything it wishes simply by creating a process:
Judge Henry Friendly's list is a general starting point for due process. None of it is actual "process" as you use the word there; each point is directed to forcing government to operate in an equatable and repeatable manner that maintains constant standards that are reviewable by another court.
- An unbiased tribunal.
- Notice of the proposed action and the grounds asserted for it.
- Opportunity to present reasons why the proposed action should not be taken.
- The right to present evidence, including the right to call witnesses.
- The right to know opposing evidence.
- The right to cross-examine adverse witnesses.
- A decision based exclusively on the evidence presented.
- Opportunity to be represented by counsel.
- Requirement that the tribunal prepare a record of the evidence presented.
- Requirement that the tribunal prepare written findings of fact and reasons for its decision.
Interestingly, the 5th also secures protection against the government taking property without just compensation, often called the "takings clause". In the same way as the due process clause does not grant any power to the government, the takings clause does not grant power to take property. Just like the 2nd Amendment assumes and acknowledges the pre-existing right to keep and bear arms, the 5th Amendment talks about pre-existing rights of government: to jail criminals and to take property as necessary for the function of government.
Pre-existing rights of government? That's an odd phrasing considering your previous statements about due process not authorizing action.
Yes, there are certain aspects of our justice system that predate the COTUSA but in many instances, the US system diverges and expands on English common law with the rights of the citizen being paramount.
The right to take someone's liberty, or, in case of certain crimes, even their life is implied in common law and are among many implied powers of government.
Yes, there are certain government authorities that bind citizen action that flowed into the US system that are just assumed to continue without being formally expressed -- EVEN IF A PROVISION OF THE BILL OF RIGHTS CALLS OUT A RIGHT IN THAT AREA OF LAW . . . As SCOTUS said:
"The law is perfectly well settled that the first ten amendments to the Constitution, commonly known as the "Bill of Rights," were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain well recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law, there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed. Thus, the freedom of speech and of the press (Art. I) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons; the provision that no person shall be twice put in jeopardy (Art. V) does not prevent a second trial if upon the first trial the jury failed to agree or if the verdict was set aside upon the defendant's motion,
United States v. Ball, 163 U. S. 662,
163 U. S. 627, nor does the provision of the same article that no one shall be a witness against himself impair his obligation to testify if a prosecution against him be barred by the lapse of time, a pardon, or by statutory enactment,
Brown v. Walker, 161 U. S. 591, and cases cited. Nor does the provision that an accused person shall be confronted with the witnesses against him prevent the admission of dying declarations, or the depositions of witnesses who have died since the former trial." --
Robertson v. Baldwin, 165 U.S. 275 (1897)
The due process clause is intended to limit government's power to before locking up a criminal or fining them or taking their property or executing them. To assume that the government has the power to take someone's life without cause but with due process is just about the most asinine thing I have ever read on this forum.
What the Hell have I ever said that would lead you to believe I think government possesses power to enforce these restrictions / punishments without cause? Yes, such an idea is asinine and to present it here as a position I have advanced, is an asinine straw man.
The singular intent and purpose of imposing due process demands on government is to forestall the imposition of punishment in an arbitrary and capricious manner.
Based on the arguments you both make, there is no constitutional protection of any right and the 2nd Amendment is meaningless. To suggest that the right to keep and bear arms can be stripped is to agree with the left that rights are not rights, they're privileges to be given or taken at the will of the government.
Your arguments seem to exist in an alternate legal universe that begins in 1791 and ends 200 years ago . . . You fail to recognize that the RKBA was nearly extinguished and was all but unenforceable from 1942 to 2008; the RKBA was put into a box where individual citizens could not claim the 2ndA as a mechanism to challenge law.
We are slowly re-establishing the RKBA thus the due process protecting citizens from government action is under continuous evolution.
All of the rights protections and due process established by SCOTUS, especially under the 14thA against state action, that we now accept as long-standing
for other rights, were suspended for 80 years for the RKBA.
Heller reset the table and
McDonald wrote the menu but since then SCOTUS closed down the kitchen and took a hiatus as far as the RKBA is concerned.
Small gains have happened,
Caetanao in 2016 and a few process cases have come down. Look at
Rehaif v. United States, 588 U.S. ___ (2019); SCOTUS enforced
mens rea requirements, that government must prove that a person charged with 922(g) prohibited person in possession knew he possessed a gun and that he knew of his status as a prohibited person -- the mere possession of the gun was not adequate to sustain the charge.
Now we are waiting on
NYSRPA v Bruen, perhaps a few steps will be taken to bring your imagined 2ndA condition into reality..
.
