Recall that when the Constitutional Convention met, it was with the purpose of simply amending the Articles of Confederation, the governmental system under which the United States had been operating for 13 years.
Under the Articles, the powers of the federal government were so weak that the federal government was even denied the power to levy taxes. Imagine that — a federal government operating for well more than a decade without having the power to confiscate people’s money and property through taxation.
Those Americans wanted a very weak federal government. They knew history and they understood the nature of human beings when vested with political power. They knew that the biggest threat to people’s freedom and well-being lay with their own government. That’s why they wanted to keep the powers of the federal government few and limited.
The delegates to the Constitutional Convention, however, went beyond their mandate. Rather than coming up with a proposal to amend the Articles, they came up with a proposal for an entirely different type of federal government.
Americans were skeptical. Under the proposal, this federal government, among other things, would have the power to tax. Americans feared that it would ultimately grow in size and scope to where it might ultimately destroy the freedom and well-being of the citizenry.
Proponents of the Constitution argued that that was extremely unlikely because the Constitution, which was calling the federal government into existence, would expressly enumerate the few powers the federal government could exercise. If a power wasn’t enumerated, it couldn’t legally be exercised.
Americans reluctantly went along with the proposal but only if the Bill of Rights would be enacted soon after the ratification of the Constitution. It really should have been called the Bill of Prohibitions because it doesn’t give people rights at all. Instead, it prohibits the federal government from infringing on or destroying people’s rights.
The first three amendments revolve around fundamental, God-given, natural rights, such as freedom of speech, freedom of the press, freedom of religion, the right to keep and bear arms, and the sanctity of people’s homes.
But there is something different about the Fourth, Fifth, Sixth, and Eighth Amendments. Those amendments are procedural protections. They are designed to prevent the federal government from arbitrarily jailing, killing, or injuring people or arbitrarily taking their money or other property from them.
Why would our ancestors be concerned about those types of things? Because they were convinced that the federal government would end up doing those types of things even though the Constitution did not give it the power to do so.
Up until World War II, for the most part, the amendments succeeded in barring the federal government from doing the things proscribed. Sure, there were transgressions, which one would expect given the propensity of government officials to expand their powers over people. But more often than not, the federal judiciary, whose job was to enforce the amendments, ensured that the amendments were enforced.
That all ended, however, with the conversion of the federal government from a limited-government republic—that is, a government with limited powers — to a national-security state, a totalitarian type of governmental structure in which the federal government wields omnipotent power. At that point, the federal judiciary, by and large, went silent, passive, or supportive insofar as the Pentagon, the CIA, and the NSA were concerned. The Fourth, Fifth, Sixth, and Eighth Amendments were effectively nullified with respect to the national-security branch of the government.
The perfect example of this phenomenon has occurred at Gitmo, the Pentagon’s and CIA’s post-9/11 torture and prison center.
People who have been accused of the crime of terrorism have been held at Gitmo for more than a decade. So much for the right to due process of law and the right to a speedy trial, not to mention the right of habeas corpus enshrined in the original Constitution.
Even if people are ever accorded a trial at Gitmo, it would be by military tribunal. So much for the right of trial by jury.
People at Gitmo are tortured. So much for the presumption of innocence and the ban against cruel and unusual punishments.
Even if people are ever permitted trials, hearsay evidence and evidence acquired by torture will be admissible. So much for the right to confront witnesses.
There are no bail hearings at Gitmo. So much for the right to bail.
At Gitmo, communications between defendants and their attorneys are secretly monitored by military officials. So much for the right to effective assistance of counsel.
That’s not all, of course. Today, here in the United States, the Pentagon and the CIA openly wield and exercise the power to assassinate people without due process or a trial. That includes American citizens. The military also now wields the post 9/11 power to take Americans into custody, place them into military dungeons, and torture them.
The NSA also wields the power to conduct secret surveillance of the American people, including monitoring and recording their Internet and telephone communications.
One thing is beyond any doubt: If the proponents of the Constitution had told our ancestors that the Constitution would bring into existence a federal government that wielded the power to assassinate, torture, indefinitely detain, engage in secret surveillance, and deny people the right to due process of law and trial by jury, there is no possibility whatsoever that our American ancestors would have approved the deal. In that case, we would still be operating under the Articles of Confederation, where the federal government didn’t even have the power to tax.
This article was published by The Future of Freedom Foundation.
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