The president of the United States is not taking the U.S. Constitution seriously, writes Judge Andrew P. Napolitano, as due process is the foundation of American law.
President Trump announces sinking of boat with “a lot of drugs.” (Crux News, YouTube Screenshot)
The President of the United States did not take the Constitution seriously when he ordered the murders of 11 people who were riding in a speedboat in the Caribbean Sea on Sept. 1 around 1,300 miles from the U.S.
Afterward he said he did so because he believed that they were members of a “narco-terrorist gang” and were delivering illegal drugs to America. He also did so, he said, as a “message” to other drug dealers who should fear a similar fate.
The boat had no ability to reach the U.S. According to the former head of drug interdiction for the Department of Justice, this so-called boat gang is not known for trafficking in illegal drugs. The crimes that the president said these folks committed did not occur in the U.S., and if they had, do not permit the imposition of the death penalty.
He offered no evidence to support his claims and didn’t even suggest that the riders in the boat posed a threat to the American military personnel who killed them. He couldn’t say if anyone in the boat was an American.
When he was asked for the legal authority for these killings, President Donald Trump replied that these folks were waging war on the U.S., and, because he is the president of the United States, he can do as he wishes to them.
These are constitutionally ignorant, morally repugnant, profoundly erroneous responses from a person who has taken an oath to uphold the Constitution.
Here is the backstory.
Execution of St. Thomas More from History of the Great Reformation in Europe in the Times of Luther and Calvin, 1870. (Flickr Commons License, Library of Congress)
When British monarchs wanted to dispose of inconvenient adversaries, they often accused them of vague crimes because they were able to define the crime however they saw fit. St. Thomas More, Henry VIII’s former Lord Chancellor, was executed for his silence. The monarch’s target was given a quick trial and then often a slow and excruciating public death — to send a message.
Mindful of the tyrannical impulses of monarchs and familiar with British history, even personally aware of folks in the colonies charged with crimes in London — where they had never been — and transported there for prosecution, Thomas Jefferson and James Madison, the Founding Fathers most responsible for crystallizing the American ethos of natural rights and due process, crafted founding documents that articulated condemnations and prohibitions of tyranny and tyrannical behavior here.
Thus, Jefferson’s words in the Declaration of Independence characterize human rights as the gift of the Creator, which cannot be taken away by executive decree or legislative enactment — but only by a jury verdict.
And Madison’s words in the Constitution’s Fifth Amendment declare that “no person shall be … deprived of life, liberty, or property without due process of law.” The use of the word “person” makes it obvious that due process applies to all human beings.
Due process requires a fair jury trial, with counsel and the opportunity for confrontation of witnesses and evidence produced by the government. It also requires proof of guilt beyond a reasonable doubt and to a moral certainty to a neutral jury, not to the accuser. And it requires conviction prior to the imposition of a legislatively prescribed penalty.
This was novel and radical in 1791, when the Bill of Rights was ratified, but it is neither novel nor radical today. Today, due process is the foundation of American law. It is what lawyers call black-letter law: Those in government are expected to know it and understand it and abide by it.
Until now.
Now, the president says he can declare war on any person or group and summarily kill them. Wrong. Under the Constitution, only Congress can declare war.
Now, the president says he can use federal assets however he sees fit as long as he can argue that their use is for the greater good. Wrong. Under the Constitution, he is limited to enforcing the laws that Congress has enacted and fighting the wars that Congress has declared.
Now, the president says some folks are so known to be evil that they can be executed before they commit crimes. Wrong. Because of the sweeping language in the Fifth Amendment, all human beings are entitled to the presumption of innocence, the right to a jury trial and the attendant protections of due process whenever the government pursues them.
“Now, the president says he can declare war on any person or group and summarily kill them. Wrong. Under the Constitution, only Congress can declare war.”
What’s going on here?
American history is replete with instances of presidential behavior unserious about the Constitution. John Adams prosecuted folks for their speech. Abraham Lincoln arrested his critics without trial.
Franklin Roosevelt incarcerated Americans based on race. George W. Bush began mass warrantless surveillance. Barack Obama murdered non-violent uncharged Americans in Yemen.
Did any of this enhance personal liberty or public safety? Of course not. But it enhanced public fear of a tyrant in the White House.
The underlying constitutional value — attacked by Trump and his predecessors — is that individuals are sovereign and government is limited. That is the Founders’ unanimous presumption at the creation of the American Republic.
Individuals are free to exercise natural rights, and government is limited by the consent of the governed and the Constitution that defined it and, channeling Jefferson, chained it down.
But chaining the government down requires taking the Constitution seriously. And that requires those in whose hands we have reposed the Constitution for safekeeping to read it and understand it and comply with it — and to comply with their oaths to preserve, protect and defend it.
Do we have such folks in power today? The answer is obvious.
Until we do, this will likely get worse. Some have argued that pre-conviction, extrajudicial killings in peacetime of nameless, faceless, foreign bad guys not engaged in violence at the time of their deaths and never even charged with any crimes is a cause for rejoicing.
They may rejoice today, but they will weep when the president or a successor brings killing the legally innocent home.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, was the senior judicial analyst at Fox News Channel and hosts the podcast Judging Freedom. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To learn more about Judge Andrew Napolitano, visit here.
Published by permission of the author.
COPYRIGHT 2025 ANDREW P. NAPOLITANO
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The views expressed are solely those of the author and may or may not reflect those of Consortium News.
Before this is over with ‘we the people’ are going to be looking to settle up with republicans and MAGATs who are those contributing to the damage the orange oger is wreaking on our country they ll should be barred and banned from even handling Old Glory!
The Flag is to be kept clean and in good condition. They are shitting all over it and the Constitution. This all could get extremely ugly before this is over with. Vets took and oath to protect both.
Have any idea of just how many vets thee are in the states right now?
it’s really frightening – and truly disappointing, too – to see that,
and how quickly, arbitrariness [i.e. despotism] is becoming the
modus operandi not just in US politics.
efficient resistance against it takes much too long to form.
but hopefully it will BEFORE it’s too late for us little guys ‘n’ gals.
Indeed. While we need some emergency relief from what went before, destroying the whole framework of the rule of law in the name of necessity will not save us from evil. It will forever remove equal justice under law.
No need to go further back into American history than last week.
Was the recent murderous escapade at sea, by a U.S. Naval Armada really about protecting the Nations Interests or was it merely more of impure political theater, with deadly cost?
Was this the 1st time the 47th “President of the United States did not take the Constitution seriously when he ordered the murders of 11 people … who were riding in a speedboat on the Caribbean Sea on Sept.1 around 1300 miles from the U.S.”
The speedboat was on the water while the human beings in the boat landed up literally dead in the water after the murder by missile attack. Another brilliant feat of daring do for the no longer highly esteemed U.S. navy.
By what international legal authority does the U.S Department of Justice have for unilaterally and arbitrarily interdicting; imposing a death sentence, and then immediately carrying out that sentence of death, in the first place, in international waters, on unknown persons outside of U.S. jurisdiction?
“Hear ye, hear ye”! Due process – no need to get into the weeds here? It may still be the foundation of American law, however, when was the last time a fair trial was conducted in the U.S. legal system, when it truly would have mattered?
Did Jeffrey Epstein get a fair trial? Where was due process for him, and where does truth stand for us? We’re in the very midst of yet another egregious cover-up, brought to you by our systemic sponsors, headed by their now long ‘acting’ C.E.O.
If anyone claiming to be as all-knowing about ethics and morality as the U.S. president, can say “some folks are so known to be evil that they can be executed before they commit crimes” then given the diversity in human populations there certainly must be someone else, just as all knowing about everything, who could just as easily make the same claim.
If we are truly all equal in the eyes of the law, then Donald Trump, the known to be evil person – by millions of other folks, for what he has knowingly inflicted on innocent people, so far, warrants, at the very minimum, life in prison.
How many times was this man, in his first term in public office, given due process only to walk away Scot-free, to once again lead us down his narcissistic garden path, once again?
It was recently heard said, once again, that the American public is the most gullible on the planet.
The unsurprising outcome of a political system in essence devolved to one $, one vote. And no longer any party that can be trusted to take the side of the majority working class. Where you may have a right to an attorney, but good luck if you’re up against a corporate “person” with hundreds of the best. Where, unless you’re of the few with a union job that comes under contract law, you’re the subject of a provision inherited from English common law called a “Master-Servant relationship.” Plus being the subject of “at-will employment” which really means you can be fired at any time. That the Rust Belt became deaths of despair central is also no surprise. Invisibility coupled with constant anxiety is unbearable.
So it’s no wonder we now have a president who was a TV character known for saying “you’re fired.” One who thinks he’s CEO of the U.S., the biggest corporate “person” in the world, and everyone is subject to his will.
There is no “creator”. As an atheist I am offended by constant basing of arguments on religion. One does not have to be a religionist to oppose Trump’s violations of the Constitution. One has only to be sane to do so.
Thank you for your insight.
On what basis do you define “sanity?” As an atheist, logic is an accident of chance, along with the existence of clumps of cells that accidentally replicate themselves to form what we perceive as sentient beings. Neither one has a definitive origin or purpose. How do we know that the senses we accidentally evolved are real, and not an illusion? Since atheistic science rejects the concept of teleologic origins, why would it matter?
Only a psychiatrist is allowed to call anyone “insane,” which is another interesting accident. Anyone else is not “qualified” to diagnose mental illness. Maybe a mathematician can find a way to define a lack of logic? If two of them agree about how to define what is logical on non-math topics, that would help.
Last I heard, the fathers of modern psychology were necromancers, obtaining their wisdom from the spirits of the dead.
So, if only the spirits of the dead are smart enough to define sanity, are you ready to submit to their verdict?
If we accidentally agree about how to oppose violations of the Constitution, that will be wonderful! The question is, can we accidentally find the time and effort to discuss the matter?
If it walks and squawks like a duck it’s a duck. Law words may have a technical meaning which need to be acknowledged in any discussion of legal issues but that is no excuse for a semantic escapism: “we can never properly understand the deep meaning of words so we are entitled to dismiss them and rely on the distribution of goat entrails or the prognostications of the Great White Rabbit In the Sky.” Carolyn Zaremba’s use of the word “sane” is both clear and meaningful.
“Logic is an accident of chance, along with the existence of clumps of cells that accidentally replicate themselves to form what we perceive as sentient beings. Neither one has a definitive origin or purpose. … The senses we accidentally evolved…”
It should be noted that the above are statements of belief, or faith; they are NOT statements of fact. They are not scientific fact and not any other type of fact. They are statements of belief or faith just as are statements of belief in a God or Creator or Higher Intelligence.
I myself cannot be an atheist. In particular I have problems with believing or accepting that our reasoning ability, our sense of logic, our critical facilities, and in particular our sense of “soul” or “spirit”, and our sense of right and wrong, and of justice, are only a product of entirely blind accidental natural processes. I have much less trouble believing in a God/Creator/Higher Intelligence than in atheism.
I consider myself to be a Deist. I.e. I strongly lean toward believing in God or a Higher Intelligence, a Creator, but accept uncertainty. I would consider myself to be between 2 and 3 on Richard Dawkins’ scale of belief, where 1 = strong theist and 7 = strong atheist.
However as a Deist I also do not accept any alleged revelation from God, such as the Bible or Koran, as actually being such. I used to be a Christian and have reasons for no longer being one. And I also have problems with atheism as described above.
I give a detailed account of my beliefs and convictions, and the development of my beliefs and convictions, in my write-up linked to by my screen handle.
It should be noted that many of the American founders, including Thomas Jefferson, Benjamin Franklin, George Washington, and especially Thomas Paine were Deists, and that the Declaration of Independence, of which Jefferson was a principal author, is a Deistic document. The Declaration says
That is admittedly a statement of religious belief, or faith; however the Creator referred to here is not the God of the Bible or the God of any “revealed” religion. Elsewhere the Declaration refers to the “Laws of Nature” and “Nature’s God” but never refers to Abraham, Moses, Jesus Christ, or any other biblical figure.
See the article at hxxps://www.deism.com/post/the-deistic-roots-of-the-united-state-of-america
All that being said, it is also true that as far as society is concerned it is vitally important that each person has the absolute right and freedom to arrive at his or her own religious beliefs and convictions, whether these lead to a belief in any kind of God (or gods, plural), or no God. A person’s religious beliefs are no business or concern of any government or any governmental body. History shows that state- or government-imposed religion leads to tyranny and sometimes war.
(Personal note: I myself personally am unhappy at the thought of atheism, but if somebody else is an atheist, and is happy with being such, and is a good and moral person, then that person being an atheist is no concern of mine.)
Thomas Jefferson said
and
See at hxxps://www.au.org/thomas-jefferson/ (scroll down)
Absolute religious freedom and separation of church and state are vital principles embodied in the First Amendment. The American founders were keen students of history, and were well aware of the situation in Europe, where hundreds of years of church-state union had led to violence, terror, torture and war, including the Inquisition, and including the Thirty Years War from 1618 to 1648 in Central Europe. And state-imposed atheism in the former Soviet Union was also just as tyrannical as state-imposed religion.
And of course we should all know about the current very serious threat to religious freedom posed by Trump and the Christian Nationalists, and Project 2025. See the web site of Americans United for Separation of Church and State.
hxxps://www.au.org/
Wait until they figure out that since both the President and the Governor have said they will give him the death penalty, Kirk’s killer cannot obtain due process anywhere which has jurisdiction to try him.
Well stated. This is by far the most frightening precedent that is being set.
Little Marco thinks he’s going to confiscate the passport of anyone who says they don’t support Israel. Shall we change the Unites States of America to the Disunited States of Israel?
The Zionist States of America
The Benighted States of America.
No mention of St. Obama’s expansion of drones, hundreds of strikes leading to hundreds of civilian deaths, while prosecuting more whistleblowers under the unconstitutional Espionage Act than all other presidents combined. (9 vs 3)
No mention of Nixon secretly bombing Cambodia, of Reagan ursupring Congress to fund the Contras, of Adams criminalizing the publication of “false, scandalous, and malicious writing” against the government… there are too many examples. Your insinuation that the author is somehow covering for Obama because the list is not exhaustive is total rubbish.
Somewhere I’ve read Mrs. Trump, the wife of Fred Trump and parents of the current President, looked at her son one day and said (approximately) Donald, I hope you’ll never be put in charge of anything because you’l screw it up. Truer words we’re never spoken.
Hubris and impunity of the powerful has long been the more common form of governance. It should be no surprise that this sort of simplifying madness is returning in a society that has become too complex for most of the people to sufficiently understand….so much easier to smash, blame, deflect and assault than to evaluate, contemplate, design solutions within lawful systems and, most importantly, spread benefits and hardships equitably.
The reliance of words on paper to protect ‘natural rights’ is unnatural! Paper words can only function as guidance for an engaged, informed and activist public; once public responsibility is lost, historically only blood can return it. This present administration seems hell bent on making that the choice.
I don’t think society ‘has become too complex for most of the people to sufficiently understand’. The basics are pretty simple: the filthy rich get even richer at the expense of everyone else.
I do more or less agree with what you say about mere words. Napolitano says, “[C]haining the government down requires taking the Constitution seriously. And that requires those in whose hands we have reposed the Constitution for safekeeping to read it and understand it and comply with it.” He has nothing to say about dealing with a president who sees the Constitution as inferior grade toilet paper.
I agree that the drive to both economic and power (over our own lives) inequity is understandable for those who will, but the nuts and bolts, levers and wheels, of those manipulations are often hidden, on the one hand, and Byzantine, on the other.
I’d say many of those hidden nuts and bolts, such as those to do with finance, have little to do with the productive economy anyway, while those that do are often made deliberately Byzantine in order to facilitate profits and the power of the capitalist class, and could – should – equally be taken over, streamlined, or outright done away with.
Just FYI. I tried to post this to F/B but it would not publish the article. I got some kind of message with the word “forbidden ” in the explanation. However, I posted a link to the article and it did that.
We no longer have a President; we have an emperor.