To every man his due; Due process of law

Oh you mean like speaking 1780 things at borders of the Continental Army in the Hudson Highlands above New York. It's been two years since Cornwallis surrendered at Yorktown no peace thing has been signed. A British army under Clinton remains in New York. A quiet threat but there is a greater threat within the continental army Congress weak body representing 13 vaguely associated States has been essentially powerless to pay or supply the army for two years so there have been mutinies of common soldiers. Officers have been attacked. They have been firing squads and a half hearted mob like threat against Congress itself. The officers themselves hold meetings make threats circulate documents of revolt. George Washington has been offered a crown. On March 15 1783 General Washington editor meeting of officers called by an anonymous summons to. Join.

Colonel David Cobb of the 5th Massachusetts described the scene which followed when the General took a station in the desk of the pulpit. He took out his spectacles from his waistcoat pocket and then addressed the officers in the following manner. Gentlemen you will permit me to put on my spectacles for I have not only grown gray but almost blind in the service of my country. This little address with the mode and manner of delivering it drew tears from many of the officers. But General Washington was not there to play on emotion. He had come to attack an idea distributed by anonymous means in the moment of this summons. Another anonymous production was sent into circulation addressed more to the feelings and passions than to reason and judgment of the army. The author of the piece is entitle to much credit for the goodness of his pen. And I could wish you had as much credit for the rectitude of his heart.

If peace takes place never sheath your sword says he. Until you have obtained full and ample justice this dreadful alternative of either deserving our country in the extremist hour of a distress or turning our arms against it which is the apparent object unless Congress can be compelled into instant compliance. That is something shocking in that the humanity revolts at the idea. My God what can this writer have in view by recommending such measures. With respect to the advice given by the author to suspect the man who shall recommend moderate measures in the longer forbearance guys spurn such advice. Yes every man must who regards that liberty and reveres that justice for which we condemn. What if men are to be precluded from offering their sentiments on the matter which may involve the most serious and alarming consequences that can invite the consideration of

mankind. The reason is of no use to us. The freedom of speech may be taken away. Dumb and silent we may be led like sheep to the slaughter. Die cannot an appeal to reason I don't believe an attack on the arbitrary use of force as opposed to lawful procedure they put on trial revolt died under Washington's words said Thomas Jefferson about George Washington. His was the singular destiny and merit of leading the armies of his country successfully through an arduous war for the establishment of its independence of conducting its counsels through the birth of a government new in its forms and principles until it had settled down into a quiet and orderly train and scrupulously obeying the laws through the whole of his career civil and military of which the history of the world furnishes no other example.

Ours was a law and order revolution led by law and order mayhem which established law and order governments it has been that way from the beginning. But the question is which law. He's got no right to sit at the lunch counter that's the law. He's got every right to sit at that lunch counter and that's so long and what order and who among us has a right to decide. Listen US law because I know the Constitution does not say that as long as it's been like that from the beginning you have to like it. True every man his due a series of radio programs about the principles of justice to every man his due is produced by radio station WAGA of the University of Wisconsin under a grant from the National Educational Television Radio Center

in cooperation with the National Association of educational broadcasters. Now in due process of law. J Edgar Hoover Director of the FBI free government cannot be defended by dictatorial methods. In so doing the defender will devour the very thing to be defended the protection of the individual. He is just as important as the protection of the state said President Eisenhower in opposing communism we are defeating ourselves and either by design or through carelessness. We use methods that do not conform to the American sense of justice and fair play to radical groups in this country would not agree. One is the Communists dedicated not just to the theory that the economic structure of the country should be turned over to the state but also dedicated to the theory that the full power of government should be turned over to the use of single political idiology

to be wielded day to day without visible procedural controls. The other group on the radical right while it disagrees with communist economic theory wishes this country to adopt communist methods. The uninhibited procedural use of the power of government. It pleads for communist methods without communist economics. Both groups have indulged in anonymous productions anonymous letters anonymous phone calls both groups suspect and shot the men who recommend moderate measures and longer forbearance and free speech. I spurn such advice as every man must who regards that liberty and revere is that justice for which we contend. From J Edgar Hoover and President Eisenhower. The clear clean line runs back to Washington and the men who made a law and order revolution law procedure regulation of governmental power from

armies to the local police force is fundamental. History has supplied a recent lesson. February 27 1933. Someone set fire to the Reichstag building in the German capital. Many historians believe the fire was set by a group of Nazis led by a gentleman named Carl Aarons a Nazi named Hitler had just been made chancellor of Germany through a coalition of political parties. The communists were blamed for the fire. The Constitution was suspended. The government was given emergency powers procedure law and order were removed so that Hitler might cope with the communists. He was most successful with more than the communists. Three months later the labor unions were destroyed. Two months after that all political parties but one were destroyed the Constitution was quietly ignored thereafter. The Nazis ran the force of government as they

saw fit. Just like the communists. Do you know of the Notre Dame Law School put it this way. The simple truth is that you have to be for the Bill of Rights or not. You can't be for the Bill of Rights for yourself and your friends it's all or nothing. A breach in the dike imperils the whole countryside not just the area adjacent to the break. There is only one protection against the flood and that is to contain it entirely. American history has run the true course of law and order of constitutional. Forces opposed to constitutional government our dim faint threads in the national fabric. No matter how loved their voices their numbers are mean to. The American people support. The Constitution. History proves the fact the Constitution is a piece of paper its strength lies in the people. It is nothing without the people.

And the people who have made it a national guide from the beginning. But. Who has what. Sure I've read it when I was a kid I guess. Well I have read it. I'll admit I haven't read the Bill of Rights the Bill of Rights is a part of the Constitution. Even people who have read it have some difficulty. Take a newspaper editorial. The Supreme Court announces that the Constitution forbids this kind of action by the FBI. Nonsense. This writer has read the Constitution and the Bill of Rights word by word. I can find no reference to the FBI. It is to be hoped that no newspaper editorial has ever been quite that blind to the meaning of the Constitution. But it's true that a great many editorials and personal arguments of lean in that direction the framers of the Constitution had never heard of the FBI or the United

States Air Force or of most of the states in the present union. They did not concern themselves with the horse cavalry and the tall masted Navy. They were concerned with principles broad and general principles so broad in fact that huge mixed boiling and magnificent country grow up under a charter. Its people living with the essentials of freedom. And some of them have been denied what they consider to be essentials of freedom. There is room under the shelter of the Constitution to fight constitutionally and effectively that takes a very broad set of principles very broad and very few in number. Anyone can read the full bill of rights in less than 10 minutes. Most people in less than five except for the details related to organization the Constitution is made up of broad principles designed to serve as guideposts in history. We write the specifics as we go along like

this. Oh by George we got them all we got and we'll get a mistrial or whatever you call it. Oh but you're a very old man. Talk about courtroom skill talk about mastery of the law. My good sir you are a great lawyer no less Thank you but I know how did you do it. Only eight in the jury and no one seems to notice. I think that's tremendous. We'll certainly get a retrial in this state and this kind of case a jury of eight his lawful I want to hand it to you you are a lawyer with us. What do you mean lawful eat your honor. You're fired your bomb Your Honor there are only eight people in the jury I protest get up get ready for a protest get out of here. I've got the right. Man on my jewelry. I hope you realize that you've hardly help your case with an outburst. I know. Do you

in this vast lake como moment still wish to discharge me. Well you certainly should have told me. And you want me to leave. Look you have got to admit I mean I've got a right to a 12 man jury the Constitution says 12 good men and true and of my peers whatever that means. Not at all now let me quote the relevant section of the Constitution. Amendment 6 the Bill of Rights all quote In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed. Which district shall have been ascertained by law and to be informed of the nature and cause of the accusation to be confronted with the witnesses against him. To have compulsory process for obtaining witnesses in his favor and to have the Assistance of Counsel for his defense. That's all. That's all it doesn't say 12 man nowhere and I'll tell you something else. You are in a state court. That article applies fully only to federal courts. Well that's a fine kettle of fish what have we got a constitution of the

United States for. Well we have state constitutions also when generally speaking broadly speaking the state controls their own courts in general. In a way exactly perhaps sort of pretty much. Well pretty much sort of perhaps in a way generally speaking to put it broadly I am stuck with an eight man jury. Maybe may be great perhaps round balls of possibly fire. Well there is another part of the Constitution which may apply the 14th Amendment. No state I quote. No State shall make or enforce any law which will a bridge the privileges or immunities of said citizens of the United States nor shall any state deprive any person of life liberty and property without due process of law nor deny to any person with its jurisdiction the equal protection of the laws. Am I being denied my privileges and immunities. Whatever they mean in general or my due process of law whatever that may mean or my equal protection almost perhaps an eight man jury might deprive you of your liberty and property without due process of law.

Maybe maybe maybe we can test it. If you have the time and the money for testing will you be good enough to tell me what is due process of law. Oh no one has ever said exactly. Generally the courts say what it is not not not none. Now look let's get down to cases. I am talking about the Constitution of the United States. That magnificent document that has shaped our country. Now what in the name of Heaven are you talking about the Constitution of the United States. All those general maybe almost perhapses maybe. Now we fight the case we can pin down the question of the number of jurors necessary for a fair trial at least for this kind of case and for the time being. Maybe let's fight I'll fight anybody now. Said Boswell's Johnson the law is the last result of human wisdom. Acting upon human experience for the benefit of the public and that is a fairly accurate description of the Constitution of the United States. Wisdom guided by the principles written into the Constitution acting

upon particular experiences for the benefit of the public has created a tremendous strain that specific principles which are linked to the Constitution. They are in reality a part of it. The founding fathers did not establish specific rules concerning a candlelight in the court room. They left room for new developments and they did not establish specific rules for the number of Jory men in a jury trial. They left room for development. They left a guidepost called fair trial and named a few principles but the details are laid out through individual complaints in individual cases. In the year 900 more than 100 years after the writing of the Constitution someone did in fact but not in the fashion just described complained that a jury of eight constituted a deprived without due process of law. The Supreme Court in its wisdom announced that a jury of 8 in non capital criminal offenses is due process of law.

Justice Holmes in another case the character of every act depends on the circumstances in which it was done. The Constitution bluntly guards freedom of speech because freedom of speech is an indispensable process in free government. But you can't shout Oh I know you're in a crowded theater or incite an angry mob to riot or indulge in slander or go blabbing to the Russians about the guidance systems of our latest rockets. The Founding Fathers guarded free speech but left room for practical limitations. They could not anticipate rockets or fill the Constitution with specific descriptions of specific kinds of speech in specific theaters. This general approach to law and principle is not limited to the Constitution. This is the clear clean road that runs through our history all the way back to Washington Exactly. This may be perhaps sometimes is the Constitution that has its

strength and meaning in the hearts and minds of the people precisely that are I without question them of speech usually freedom of press almost always a 12 man jury. Sometimes when you can't understand the Constitution in that case by just reading it you have to read all of the decisions and laws passed under it exactly by George Harlow did all of that which no one can understand without a lot of work which no one does. If no one but lawyers and so forth have done it how has it been a guide for the people in general. Answer me that. Well it's the general law I know the general principles that everyone understand all boy. How's that for a way of getting out from under you when I'm out for the count. One student of jurisprudence put it something like this. No one knows what justice is but everybody knows what injustice is. Yeah like when the big bully takes away the little kid's ice cream cone. Like when the policeman

slugs some vagrant. Like when the judge is your mother in law. Like when a mob beats up on a speaker they like when they won't let me vote and I'm a citizen with a clean record they let everyone else like that like that. Like when Herman Gehring who controlled the Prussian police ordered them to look away while Nazi shock troops beat up the voters around the polls on Election Day. Like the way the Nazis won the election. Like communist ballots with space for just one party. Exclude the rabid anti constitutional elements right and left and the American people know their constitution by heart. It's well to read the constitution and there are many who wish that the substance of the long train of particular conclusions reached by legislatures and courts under the Constitution might find its way more deeply into our classrooms along with our exports and our imports and the cold mechanics of our government.

It makes a long sweeping sweet smelling line through our history have been moments of high stench but Justice tends to triumph in fact as well as fiction under our Constitution. Because the sense of it is there in the people. No one knows what justice is but every reasonable person knows in justice when he sees it. That sense of injustice is the layman's version of due process of law within our courts and our legislatures. No one can describe due process of law except in a general way. Justice Frankfurter Due Process of Law expresses a demand for civilized standards of law. It is thus not a stagnant formulation of what has been achieved in the past but a standard of judgment in the progressive evolution of the institutions of society. Society moves conditions change the search and

seizure rules that applied to ox carts and sailing ships hardly apply to the automobile and the airplane. The idea behind the phrase due process of law has attended the growth of English speaking traditions for more than 800 years. It reaches from today's rockets and nylon body armor back to the days of war horses and iron body armor dosh MIG love and on my apt get a date to come out I made it rain on the intent of the law to cool my temper and tarnish the suit and made it rain on the years well I prefer the dial me asked eternally or Rust in Peace ghoul wall in the log. The idea was first institutionalized in 12 15 when the clattering barons of England in clanking hats and change shirts forced King John to

sign the Magna Carta. No free man shall be taken or imprisoned or deprived or outlawed or exiled or in any way destroyed nor will we go upon him nor will we send upon him except by the legal judgment of his peers by the law of the land. And there have been other changes. Nowadays we divide Due Process of Law into two parts. One it's the older has to do with procedure with torture the administration of justice the behavior of administrators. It's the safeguard against the arbitrary application of the power of government by the executive. The second part is called substantive due process. It has been with us a shorter but a respectable amount of time. It guards against arbitrary legislatures and arbitrary laws. You will not cut down my red cedar tree we will cut down your red cedar

trees it's the law. Oh says the state legislature says no one can grow cedar trees within two miles of an apple orchard. Already there's a howler. There's a law that will ruin the whole country. If I can't grow cedar trees within two miles of someone's apple orchard they'll be telling me next that I can't blow my nose within 15 feet of a fire plug or drive my car with two wheel brakes downhill howl and scream. The point is that red cedar trees have cedar rust and apple trees catch it. The legislature in its wisdom has decided that apple orchards are more valuable and more important than Rusty cedar trees. Well that's an arbitrary illegal unconstitutional law. You can't deprive me of my property without due process of law. I'll take it to the Supreme Court. How do ya like them red rusty apples and me you'll Rust in Peace. The Supreme Court of the United States deliberated and the nuns thought the law was

not arbitrary. On the other hand our courts of a time struck done exceedingly important legislation as unconstitutional as arbitrary as contrary to Due Process of Law. These are facts we live under a constitutional form of government. Constitutional government is limited government. There are some things a constitutional government can't do. There are specific prohibitions written into the Constitution twice in our history in more general prohibitions have been added in due process phrases. The federal government may not state governments may not take life liberty or property without due process of law. Both the executive and the legislative power are limited by Due Process of Law. It is a judiciary that interprets Due Process of Law. The judiciary represents a cool and detached third party in our three part government.

It's removed from the heat of what the Founding Fathers called faction removed from the flame of politics. A step removed from the tethered goat and the caged man and unable to profit by destruction. The founding fathers perhaps sensed a latent tiger in us all a judicial branch of government lacks the power of direct coercion. Being a step removed from politics it has no political party nor party press. It commands no guns no armies. This third branch of the government makes the final legal interpretations of the supreme law of the land. The constitution if the judicial determination survive it's because they have the support of the people. You mean the people who generally haven't read the Constitution and who generally don't quite get its perhapses and maybes and it's it depends who's those people. Most of the people most of the time support the idea of constitutional government and disagree under its shelter on matters of interpretation.

I say he's got no right to sit there. It's the law I say he's got every right to sit there. It's the law. The powerless branch of our government acting in the most passionate areas of disagreement can strike dumb legislative acts and executive actions which have the support of major parties and the party presses or major sections of the country or major sections of organized opinion. It has done so using a standard Due Process of Law which has never been defined. It is not understood probably by the majority of the people but it has often found support for such decisions in the people the courts do not represent perfection in their interpretations of the Constitution. But when court interpretation matches this in the people no one knows what justice is.

But everyone knows in justice when he sees it the written the legal is stick. The lawyers Constitution is joined to the depths of the people Due Process of Law in government a sense of injustice in the people. These two quite underfund of all things make a Constitution more than a piece of paper. Whether we have read it or not we know the Constitution by heart or there is no constitution. We are not the judges make the final decision. To every man his due is produced by radio station WAGA of the University of

Wisconsin under a grant from the National Educational Television and Radio Center and distributed by the National Association of educational broadcasters script by Milburn articles with Carlson. Content consultant David film music by Don Vega production by Carl Schmidt. This is DNA E.B. Radio Network.