Oh, sorry, I thought you were complaining about the murder not the vote.
I don’t believe that there’s any restriction on holding such a vote. Internment was by simple executive order. Granted, there was a war going on at the time, so that may have used a State of Emergency special power as a foundation, I’m not sure.
But, I’ll note, even if we determine that this action would be struck down by the Supreme Court, the question is whether it is right for a minority - like the Supreme Court, or Congress, or anyone - to countermand the clear declarations of the people. And if that is right and fair then, on what philosophical view of the Constitution, is that justifiable?
If the power of the Constitution lies in the consent and demands of the people, then how does it win against them?
The 5th Amendment only applies if Leonard is being charged with a crime. Leonard is not being punished nor charged with a crime.
And, ultimately, the Bill of Rights is a commitment to the people by the government. In this particular case, the people have voted against their rights.
Say, for example, that you and I put together a contract and, in the contract, I promise to never slap you. Some time later, you are bored and you tell me, “Ignore the contract. I’m bored and falling asleep. Slap me.” Maybe I even get it in writing from you that you’re overruling the contract temporarily.
Can I slap you, in this instance?
As I understand it, given a sufficient popular will, any part of the Constitution can and should be amended.
Granted, it’s not quite as direct as that, but there’s nothing to stop the people from electing murderous bastards into government.
Yes, you can. Or, at least, the first contract does not prevent you from slapping me, because it has now been superseded by a second contract. Both contracts derive theif force and legitimacy from the agreement between you and me.
Only if the “sufficient popular will” is expressed through the ratification process. The popular will has established a process for varying the constitution. It’s the established popular will that the popular will should not be given effect to in ways that would violate the constituion as it stands. Therefore, if the popular will favours the doing of something currently prohibited by the constitution, the popular will needs be expressed in a way that includes the making of the necessary constitutional amendment.
Plainly not; such thing have happened frequently in many countries. It doesn’t follow that there is a political, legal or moral case in favour of those murderous bastards committing murder. They haven’t been elected to commit murder, but to discharge the duties of the offices to which they have been elected. If the people want to elect someone to commit murder, they must first establish an elective office whose duties include the commission of murder.
Wouldn’t an easier and more realistic thought experiment for determining if the US government cares about the Will of the People be something like: Who won the popular vote for president, how many people are represented by the majority party in the senate, what is the proportion of house members of the majority party in the house versus the proportion of voters?
The Electoral College, the Senate, and Gerrymandered House Districts demonstrate that the Will of the People is not a primary concern. And in my scenario, no one has to die.
If “the people” wish to act in a way that violates the Constitution, there are processes within the Constitution to amend it. And if the will of the people is sufficiently great as to approve an amendment, then the Constitution will change to meet the new will of the people. To act otherwise is to say that the law has no force, no legitimacy, no power, and thus the entire rule of law is completely undermined. If the people were to “win” against it, the victory would be entirely Pyrrhic.
The following dialogue from A Man For All Seasons seems relevant here:
*William Roper: “So, now you give the Devil the benefit of law!”
Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”
William Roper: “Yes, I’d cut down every law in England to do that!”
Sir Thomas More: “Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man’s laws, not God’s! And if you cut them down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!” *
We uphold the law - including the Constitution - to protect us when the Devil turns round on us. Because the alternative is the failure of civilization itself.
The “is it legal/constitutional” argument seems like an irrelevant nitpick. Suppose the constitution was amended, the legislature passed all the necessary laws, and popular support was behind the idea.
Both slavery and the Holocaust were legal, and depending on what population you were looking at, well supported by a clear majority. Does that matter? Or is the fact that something is legal and “the will of the people” immaterial when the question at hand is whether we should kill an innocent man? And where does that leave our other laws? Is it suddenly better that, instead of killing a man for no reason, the populace and legal machinery mandate that an innocent man should be caged for possessing controlled substances? Or that we should bomb some poor people in another country because some rich people who won a popularity contest think that’s the best way to protect the profits of their biggest donors?
It’s ultimately a question of the legitimacy of state power. The Constitution states that the government derives its power from the consent of the governed. But does it? How is that consent gauged, and how many must consent? Can I consent to another man’s punishment? Or must he grant consent himself? The Universal Declaration of Human Rights states that “The will of the people shall be the basis of the authority of government”. But what does that mean? 50%+1 person? Two-thirds majority? Unanimous? Or that the government only holds power over those who consent to give it power, and any person may opt out? There’s a lot of talk about the social contract, but I never got my copy and I haven’t signed it. So why should I be bound by it?
If there is no crime then what due process would there be?
If you are drafted into the military and immediately designated for a suicide mission group, by random lot, you are not being punished for a crime, that’s just the course of your life that the government selected for you on the basis of the needs and aims of your representatives, who you elected.
They don’t have to prove that you “deserve” to be sent to war or that you “deserve” to be put in a suicide mission group, they just have to have a governmental purpose behind the act.
If the government decides to take all of your land from you, they can do it.
Now, that has been litigated to say that they have to pay you some amount of money for taking your land. And, likewise, the Supreme Court might decide that the government has to pay Leonard’s family as compensation for his service to the country, they might decide that there is a general right to life that the White House is violating with this law.
But the question was not, “Is this legal?” Nor was it, “Would the Supreme Court decide that this is legal?” The question is, why does the government get to overrule the people if the whole basis of the government’s power and rights is that the people have granted it, in the understanding that the government serves them? And more importantly, should the voice of the people overrule that of the government?
On a reread, I concur, “nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.”
I was reading it “in a criminal case” -> “you won’t be deprived of X without due process”. But I believe that you are correct that it should be read, “In a criminal case OR in a case where you would be deprived of X” -> “due process must ensue”.
But, like I said, it’s possible that the Supreme Court would decide that due process means that we’ve established a solid process to ensure that Leonard isn’t being targeted for any particular reason that isn’t justified, they might say that there has to be a payout to the family, and they might decide that the state interest of ensuring the people that they are being listened to is overly arbitrary and isn’t a legitimate state purpose and that there is no such thing as a due process that would allow it to occur.
No matter what, in any case, are you going to get anywhere on the question through legalism. The question isn’t about legalities and any answer I give to justify the hypothetical - correct or invalid as may be - is simple “color”. It fleshes out the hypothetical, but doesn’t do anything to move forward on the actual topic of discussion. I could come up with a whole backstory that makes the OP less absurd and firmly plants it in plausible legalities. You can safely trust that that’s true. Doing so, however, simply wastes time on color.
Should the will of the people supercede the government’s and the law?
I’m not so sure of that; the pertinent part of the amendment reads:
“No person shall be … deprived of life, liberty, or property, without due process of law”
That part of the 5th amendment is there SPECIFICALLY to prevent what you’re describing here- the government just executing people, imprisoning people, or confiscating their property willy-nilly. The 5th amendment puts a brake on that by requiring due process.
The amendment doesn’t say a thing about whether or not they’re being charged with a crime- it says very simply that the government can’t kill you, imprison you, or take your stuff without due process of law, which generally means a trial.
So in order to deprive Leonard of life in your hypothetical, they’d HAVE to charge him with something with the death penalty as an option, find him guilty, and sentence him to death.
No person shall be held to answer for a capital … crime, unless on a presentment or indictment of a grand jury; … nor shall any person … be deprived of life, liberty, or property, without due process of law.
I don’t think the proposed vote is due process of law.
Nothing in the US Constitution ensures a right for those born to continue living. The 2nd amendment seems to grant the power to kill or be killed, and that’s about it.
Back to the OP. Can a US government choose to arbitrarily execute someone? Sure, it happens all the time, without bothering with polls. The OP’s model suggests a game show format, maybe “Hang-em Or Not”. A victim is selected for doom. Pro bono attorneys try to intervene but hey, this is entertainment! “Sorry, you didn’t beat the reaper.” ZAP!