Rand Paul, Atticus Finch and the rule of law

Sen. Rand Paul (R-Ky.) took to the senate floor Wednesday morning to challenge David Barron’s appointment to the U.S. First Circuit Court of Appeals. Barron was the source of legal memos that justified the killing of non-combatant American citizens by drone strikes, without due process.

While on the floor, Paul referenced a history of Americans, both real and fictional characters like Harper Lee’s Atticus Finch, standing for due process, standing for the Bill of Rights and standing for the rights of the minority.

Paul related his thoughts at length:

Our history is replete with examples of heroes who defended the defenseless, who defended the unpopular, who sometimes defended the guilty. We remember John Adams when he defended the British soldiers, the ones who were guilty of the Boston Massacre. We remember fondly the people who defend the unpopular even when they end up being declared guilty because that’s something we take pride in our system. We remember his son John Quincy Adams when he defended the slaves who took over the Amistad. We remember fondly Henry Selden who defended the unpopular when he represented Susan B. Anthony who voted illegally as a woman. We remember fondly Eugene Debs who defended himself when he was accused of being against the draft and against World War I and was given 10 years in prison. We defend the unpopular, that’s what the Bill of Rights is especially important for. We remember fondly Clarence Darrow who defended the unpopular in the Scopes Monkey Trial. We remember fondly Thurgood Marshall who defended the unpopular when he convinced the Supreme Court to strike down segregation.

“Where would we be without these champions?” Paul asked.

It’s an important question, since, as Paul noted, “unpopular opinions change.”

The only way to change the perception of the unpopular, whether a group of persons or an individual, is to examine whether that unpopularity is justified or not. That is precisely what due process is for. It is what lawyer Atticus Finch represented in To Kill A Mockingbird.

And it is why David Barron’s drone rationale is so problematic.

Rand Paul mentioned Finch because of his courage in the face of severe unpopularity, defending the rights of a black man in the Deep South, wrongly accused of rape because of his race. If there were no due process, Tom Robinson would certainly have been lynched by a mob, which almost happened before trial. Due process is meant to eliminate mob justice and vigiliantism.

Rand Paul calls for release of drone memos, removal of Obama judge

“It’s easy to object to vigilante justice when you know the accused is innocent. When the mob attempts an extrajudicial execution, we stand with Atticus Finch, we stand for the rule of law,” Paul said. He continued, “Do we have the courage to denounce drone executions as nothing more than sophisticated vigilantism?”

“These traitors [were] betraying a country that holds dear the precept that we are innocent until proven guilty. Aren’t we in a way betraying our principles when we relinquish this right to a trial by jury?” Paul added.

The senator is arguing that, in a sense, to throw out due process is to stoop to the level of the accused terrorist or traitor. The rules of vigilante law are essentially the same as the rules of the traitor. Similar to the terrorist or traitor, a nation without due process is also without the rule of law.

The very thing being condemned is the thing being done.

William Blackstone, whose seminal legal work “Commentaries on the Laws of England” influenced the Founding Fathers heavily, once wrote: “It is better that ten guilty persons escape than that one innocent suffer.”

It’s bad enough to convict the wrong man after a failure of process. But how terrible a nation will we have become if we can kill an innocent person — an American citizen — who was never charged or given his day in court to begin with?


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