The Big Picture and the Closeup

Due process is flexible, in light of the circumstances. But what kind of meaningful trial could U.S. citizen and terror suspect Anwar Awlaki have received if the government were allowed to kill him first, and try him afterwards? Once you concede Awlaki had a due process interest in his life – and one always has a due process interest in one’s life – then a post-deprivation trial must by definition have failed the due process test. That test never yields a result where the amount of due process owed to the private citizen is zero, both before and after deprivation of the due process interest. That’s why death penalty appeals are so long and tortuous: if you don’t get it right before you execute the defendant, there is no opportunity to correct it.

If the right of public employees to unionize is recognized as a human right, whatever is or is not in the constitution, then it cannot legitimately be one of the things Gov. Walker was elected to obliterate. Hence, to the extent he tries to do so, he will in fact be seen as illegitimate, no matter how legitimately elected. This is the point the Capitol Square crowds are trying to make with their quotation from the Middle East uprisings.

What were they thinking when they passed “Don’t Ask, Don’t Tell?” Here’s what. And it was just as wrong then as it is now.