Here's one more thought that might be helpful here: The Bill
of Rights, including the clause barring deprivation of life, liberty, or
property without due process, wasn't enacted as some self-contained
philosophical framework; it was enacted against a backdrop of English law and
traditions, and while those traditions assumed a minimal role for the state,
they did assume some role for the state - chiefly as protector of liberty and
property.
Thus, for instance, say that a state statute is enacted that
says, "No homeless person is guilty of any crime or tort for sleeping on any
privately owned unimproved area, notwithstanding any 'no trespassing' signs,
fences, and the like, and police officers will not eject any such person." I
think there's a very good case to be made that this is a deprivation of the
property owners' property rights without due process. (It might also be a
taking of private property for public use without compensation, see Kaiser
Aetna and Loretto Teleprompter.) But why? The government is just withdrawing
the positive protection offered by criminal and tort law. (The statute doesn't
deny the property owner the right to use force to eject the trespasser, so it
isn't interfering with the owner's right to be free from punishment for such
ejection.) Yet this positive protection is part of the backdrop assumptions
against which the Bill of Rights was written: The legal system is available to
protect the rights of property owners. Likewise, the Contracts Clause
presupposes positive protection for the rights of contracting parties.
I think something similar happens if the statute says, "No
homeless person is guilty of any crime or tort for killing someone who is
nonlethally trying to eject him from any privately owned unimproved area," or
"no person is guilty of any crime or tort for killing someone who has been
accused of a serious crime." The government is withdrawing the positive
protection offered to life by criminal and tort law. But again this positive
protection is part of the backdrop assumptions against which the Bill of Rights
was written.
Again, this doesn't mean that even the broadest current rules
related to defense of life or property are unconstitutional; such rules might
themselves be part of the traditional backdrop (though I can't vouch for the
most capacious such rules). But it does suggest that we can't just dismiss
this by saying that laws allowing killing raise no Due Process Clause problems.
Eugene
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