Replies

DiogenesLamp: "The term "due process" is a well known legal term of art, and it means a court hearing.
No, congress cannot overturn the 5th amendment without passing another amendment and sending it to the states for ratification."

You well know the US Constitution allows for exceptions when, "Cases of Rebellion or Invasion the public Safety may require it."
So, unless you intend to invoke the pre-preamble, you'll need to show examples of where anybody at the time interpreted the Constitution as you do.

DiogenesLamp: "If you could simply declare someone an "enemy" and therefore not entitled to "due process", then every right can be destroyed by this loop hole.
The burden of proof is on the state.
That is as it should be."

The precise phrase, "the Constitution is not a suicide pact" came from the Supreme Court, Justice Thomas L. Jackson (think Nuremburg trials), in 1949.
But the idea itself goes back to President Jefferson, in 1803, who wrote regarding the Louisiana Purchase:

"A strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest.
The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation.
To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means.[1] [2]"

Of course, Jefferson was a Democrat and, in a sense, this is just a Democrat doing what Democrats do -- ignoring the Constitution.
On the other hand, nobody then or since seriously challenged the Louisiana Purchase in court.

In 1861, President Lincoln said it this way:

After Chief Justice Roger B. Taney

"in nearly one-third of the States had subverted the whole of the laws . . .
Are all the laws, but one, to go unexecuted, and the government itself go to pieces, lest that one be violated"

Clearly, what Lost Causers like DiogenesLamp wish is for us to make the US Constitution into, effectively, a "suicide pact" such that whenever he or others can think of a clever enough attack on it, we (defenders of the Constitution) must simply throw up our hands and surrender, saying, "you're right, we lose, let's just destroy the United States."

As for limits on the "no suicide pact" idea, President Jefferson himself laid them out: "necessity", "self preservation", "saving our country when in danger".
So it is in no way a "get out of jail free" card, but only means in extremis, sometimes you gotta do what you gotta do.

Here's how President Trump said it in 2016:

"Our constitution is great, but it doesn't necessarily give us the right to commit suicide, okay?"[8]

So let's see, on one side of this argument I have Presidents Jefferson, Lincoln and Trump.
On the other side I have DiogenesLamp invoking the pre-preamble telling me the Constitution is, after all, a suicide pact.

Hmmmm… which should I go with, very tough decision...

</sarcasm>

You well know the US Constitution allows for exceptions when, "Cases of Rebellion or Invasion the public Safety may require it."

Supposing it does, *who* gets to decide if something is a "Rebellion"? Did the framers of the constitution ever intend to apply the term "Rebellion" to states who through a Democratic process voted to separate from the Union? I very greatly doubt it.

I recall one Supreme Court Justice (Salmon P. Chase, I think) saying "Secession is not Rebellion."

So did Lincoln go to the courts to get them to decide it was a "rebellion", or did he just through his own power, declare it so?