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Imprisonment Without Trial, 47 Tulsa Law Review 347 (2011)


The Constitution is a broad charter of governance. It establishes the institutions of government and places limits on their exercise of power. For the most part, the Constitution speaks in broad generalities, and over the last several hundred years many principles have been developed to give specific content to these generalities. Some of these principles, like the one requiring separation of powers, are inferred from the general structure of the Constitution. Others, like antidiscrimination or its alternative, the anti-subordination principle, are rooted in some specific provision such as the Equal Protection Clause, and are meant to give further content to those provisions. Both types of principles are supposed to guide government officials in discharging their duties and, if required, they can be enforced against these officials by the judiciary. These principles are as endowed with the authority of the Constitution as are the words on the parchment. However, they present themselves to us as an interpretation of those words and can be criticized and, if need be, reformulated in ways that, short of an amendment, the words on the parchment cannot. One such principle - I refer to it as the principle of freedom - has been violated by the Bush administration and now by the Obama administration in their fight against terrorism. This principle denies the government the power to imprison anyone without charging that individual with a specific crime and swiftly bringing him to trial. The principle of freedom is implicit in the provision of the Constitution that limits the power of Congress to suspend the writ of habeas corpus - the means by which the legality of imprisonment can be tested.I More importantly, it should be seen as a gloss on the Fifth Amendment of the Bill of Rights, which denies government the power to deny anyone of "life, liberty, or property, without due process of law."

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