by Jacob G. Hornberger

May 21, 2026

The Fifth Amendment to the U.S. Constitution states that no person shall be deprived of life without due process of law. Like all the other amendments to the Constitution, the Fifth Amendment operates as an express higher-law restriction that the people of the United States have placed on federal officials. The idea is that federal officials are expected to obey our higher law just as they expect us to obey their lower laws.

Not only did the Framers and our American ancestors expressly restrict the powers of federal officials with the Constitution itself and the subsequently enacted Bill of Rights, they also divided the federal government into three branches, each with its own powers. The idea was to further weaken the overall power of the federal government.

The mindset that went into this type of governmental structure was one of severe mistrust. Our American ancestors did not trust the federal government. They were convinced that U.S. officials, not some foreign entity, was the biggest threat to their freedom and well-being. With limitations and restrictions on federal power and with a separation of powers, they were aiming to keep this grave threat to their freedom and well-being as small as possible.

The Constitution brought into existence three branches: the executive branch, the legislative branch, and the judicial branch. The executive branch would enforce the laws. The legislative branch would enact the laws. The judicial branch would interpret the laws and, if necessary, declare them unconstitutional.

Due process of law is a term that stretches all the way back to the Magna Carta in 1215. It requires two things before federal officials can kill someone: (1) formal notice of a criminal offense and (2) the right to be heard before being killed. Over the centuries, these two things have generally transformed into (1) a grand-jury indictment containing a formal notice of criminal charges and (2) a trial by jury before an independent judge, along with other procedural protections, such as the right to an attorney, the right to confront adverse witnesses, and others.

For more than 100 years, federal officials complied with this Fifth Amendment restriction on their power to kill people. Moreover, during that period of time, the federal judiciary was willing to do its job to enforce that restriction on the executive branch.

No more. Today, it is undisputed that the president, the military, and the CIA wield the omnipotent power to deprive people of life (i.e., kill them), without due process of law. In other words, federal officials are no longer complying with the Fifth Amendment restriction on their power.

This phenomenon is being demonstrated in the drug-war killings that the military is committing on the high seas near South America. Those people are obviously being killed without due process of law — that is, without notice and hearing — without a grand-jury indictment setting forth the drug charges against them and without a trial by jury.

There are three aspects of this phenomenon that are worth noting:

1. The president and the national-security establishment now wield the omnipotent power to kill anyone they want. As we have seen with the drug-war killings near South America, nothing will happen to those who are doing the killing. Perhaps it is worth mentioning that this same omnipotent power to kill people was wielded by Adolf Hitler and his Nazi regime.

2. The military establishment and the CIA will obey whatever orders the president issues to them, including orders to kill people. Although soldiers and CIA officials take an oath to support and defend the Constitution, in reality their oath a sham. Their loyalty is to the president — their commander in chief. As we have seen in those high-seas killings, the military will ignore the Fifth Amendment and blindly kill on orders. Perhaps it’s worth mentioning that German soldiers and German officials had the same mindset of blind loyalty to their Führer.

3. There is now nothing the federal judiciary will do to enforce the Fifth Amendment against the president and the national-security establishment, even though that is its responsibility under the Constitution. It has gone silent in the face of this omnipotent power to kill. That’s because the judiciary recognizes the overwhelming power of the national-security establishment — i.e., the Pentagon, the enormous standing army, the vast military-industrial complex, the CIA, and the NSA — within the federal governmental structure.

In other words, ever since the federal government was converted from America’s founding governmental system of a limited-government republic to a national-security state form of governmental structure after World War II, the judiciary has deferred to the overwhelming power of the national-security establishment. This is because the judiciary knows, as a practical matter, that it lacks the power to enforce its orders and judgments against what has become a fourth branch of the federal government — the national-security branch — the most powerful branch.

And so it is that Americans now live under a system in which their ruler and his vast, powerful, and extremely loyal military-intelligence forces, who are more than willing to blindly obey his orders, wield the omnipotent power to kill anyone they want — just like German citizens who were living under the same type of governmental system in the 1930s and early 1940s.