2022-04-21 21:55:16
Using War to Assault FreedomAndrew P. Napolitano
"I have argued in this column and elsewhere that the Biden administration sanctions imposed on Russian and American persons and businesses are profoundly unconstitutional because they are imposed by executive fiat rather than by legislation and because the sanctions constitute either the seizure of property without a warrant or the taking of property without due process.
When the feds seize a yacht from a person whom they claim may have financed Russian President Vladimir Putin’s rise to power, they are doing so in direct violation of the Due Process Clause of the Fifth Amendment.
Similarly, when they freeze Russian assets in American banks, they engage in a seizure, and seizures can only constitutionally be done with a search warrant based on probable cause of crime.
As well, when the feds interfere with contract rights by prohibiting compliance with lawful contracts, that, too, implicates due process and can only be done constitutionally after a jury verdict in the government’s favor, at a trial at which the feds have proved fault.
As if to anticipate these constitutional roadblocks to its interference with free commercial choices, Congress enacted the International Emergency Economic Powers Act of 1977 and the Magnitsky Act of 2016. These constitutional monstrosities purport to give the president the power to declare persons and entities to be violators of human rights and, by that mere executive declaration alone, to punish them without trial.
These laws turn the Fourth and Fifth Amendments on their heads by punishing first and engaging in a perverse variant of due process later. How perverse? These laws require that if you want your seized property back, you must prove that you are not a human rights violator.
As if to run even further away from constitutional norms, a group of legal academics began arguing last week that the property seized from Russians is not really owned by human beings, but by the Russian government. And, this crazy argument goes, since the Russian government is not a person, there is no warrant or due process requirement; therefore, the feds can convert the assets they have seized and frozen to their own use.
To these academics — who reject property ownership as a moral right and exalt government aggression as a moral good — the argument devolves around the meaning of the word “person.” The Fourth and Fifth Amendments protect every “person” and all “people,” not just Americans.
And in American jurisprudence, “person” means both human beings and artificial persons — corporations and governments capable of owning property. Property ownership is defined by the right to use, alienate and exclude. Only persons can exercise those rights.
Madison and his colleagues clearly sought to protect property rights from government aggression, no matter the legal status of the owner. We know this from the judicial opinions involving foreign property that preceded and followed the ratification of the Fifth Amendment. If this were not so, then nothing could prevent the feds from seizing and converting the property of states or local governments or international religious institutions to federal use.
War is the health of the state and the graveyard of liberty. The drug war was a disaster for freedom. The war in Ukraine will be so as well, only if we permit it."
https://www.lewrockwell.com/2022/04/andrew-p-napolitano/using-war-to-assault-freedom/
Channel: @robinmg
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