Is the Constitution a Failed Experiment?
by Jacob G. Hornberger
Some people say that given the massive welfare-warfare state under which we now live, it’s clear that the Constitution and the Bill of Rights have proven to be a failed experiment in the protection of the rights and liberties of the American people.
But is that true?
Consider the fact that Americans are not forced to send their children into state institutions to receive religious indoctrination. If it wasn’t for the First Amendment, there is little doubt that that would be happening in various states and localities across the country.
How can we know that? By the fact that so many people, particularly conservatives, would love to get prayer in public schools. Don’t forget that public schools are government institutions whose students are there by state compulsion. Rather than bring an end to such educational compulsion, conservatives and others want to subject those students to religious indoctrination.
Thus, thank goodness for the First Amendment and its protection of religious liberty. Without it, the state would be using its public-school system to indoctrinate children not only in education but also in religion. What a shame that our American ancestors didn’t extend the provisions of the First Amendment to both religion and education.
Or consider free speech. Unlike in Egypt, where people are being rounded up, jailed, and tortured for speaking out against the government, U.S. officials are not doing the same to American citizens. That’s not because U.S. officials wouldn’t love to do such things but because they know that the judicial branch of the federal government would quickly order the release of people in habeas corpus actions, based on the First Amendment’s protection of freedom of speech.
How do we know that U.S. officials would do those things if there wasn’t a First Amendment? Because they are continuing to funnel millions of dollars of U.S. taxpayer money into the coffers of Egypt’s military dictatorship for the precise purpose of helping it to do those things to the Egyptian citizenry, in order to be able to maintain its tyrannical grip on power and its partnership with the U.S. government.
What about gun rights? If it wasn’t for the Second Amendment, there is no doubt that the U.S. national-security branch of the federal government would be doing what it does when it invades and occupies foreign countries — bashing down people’s doors in warrantless searches and confiscating guns, all with the aim of maintaining peace, order, and stability within the nation.
Or consider the procedural guarantees that our ancestors had the foresight to include in the Fourth, Fifth, Sixth, and Eight Amendments. If they hadn’t done that, there is no doubt that such guarantees would be nonexistent in judicial proceedings, at least insofar as drug cases are concerned but most likely in all federal prosecutions.
How can we be sure of that? Look at the model “judicial” system that the Pentagon set up in Cuba. No trial by jury, no due process of law, no speedy trials, and no right to confront witnesses. In fact, before the U.S. Supreme Court stepped in and assumed jurisdiction, they weren’t even going to permit criminal-defense lawyers to participate in their “judicial” system.
The military limited its system at Gitmo to terrorism cases but there can be no doubt that if they were able to get away with it, they’d have the same type of system for drug cases that they have for terrorism cases. No jury trials, no due process, no speedy trials. Just warrantless searches of cars, homes, and businesses, to find drugs, followed by kangaroo tribunals, indefinite detention, torture, and even execution of suspected drug offenders.
What about the welfare-welfare state, whereby Americans live under a massive socialist-interventionist economic system and a massive overgrown military-intelligence establishment? Didn’t the Constitution and the Bill of Rights fail to protect Americans from those two massive infringements on the rights and liberties of the American people?
There is no question about it. And statists were able to achieve those revolutionary transformations of America’s governmental system without even the semblance of a constitutional amendment.
But let’s be clear about the purpose of the Constitution and the Bill of Rights.
The Constitution brought into existence a federal government whose powers were limited to the few enumerated in the document. The Framers weren’t naïve. They knew that most people who got into federal office would not willingly and eagerly comply with constitutional constraints. The Framers knew that the thirst for power is oftentimes unquenchable for those who seek governmental positions.
That’s why they formed the judicial branch as part of the constitutional structure. Its responsibility would be to enforce the Constitution against officials in the executive and legislative branches who inevitably would be doing things in violation of the constitutional constraints. After all, if federal officials could be trusted to voluntarily comply with constitutional constraints, there wouldn’t have been a need for the judicial branch to have the power to declare acts of the president and Congress unconstitutional.
Even the Constitution itself wasn’t good enough for the American people, however. They demanded the enactment of the Bill of Rights to make certain that federal officials in all three branches of the federal government got the message: Don’t jack with our fundamental, God-given rights.
Thus, when officials in the late 1700s and 1800s took actions in violation of the Constitution, such as the Alien and Sedition Act, no one was surprised or should have been surprised. Again, everyone knew that federal officials, ever thirsty for more power, would do such things.
But what mattered was that such actions were not a permanent part of the system. They were considered to be outside the system.
The difference between then and now is that the socialist-interventionist state and the national-security state are now considered to be a permanent part of America’s federal government system.
So, why didn’t the Constitution and the Bill of Rights protect us from the getting a welfare-warfare state?
Consider a sea wall, one that is designed to protect a community from extremely high tides. It works for 100 years, keeping extremely large tides, including those caused by hurricanes, from reaching the community, which remains high and dry for a century.
But one day, a tsunami hits. The wave is so enormous that it easily overcomes the sea wall and inundates the community, destroying property and killing dozens of people.
Can we say that the sea wall failed? No, because the sea wall was never designed to withstand a tsunami. It was designed only to keep out high tides, which it succeeded in doing for 100 years.
By the same token, for more than 100 years, the American people lived in the following type of society: No income tax, no IRS, no Federal Reserve, no fiat (paper) money, no gun control, no drug laws, no Social Security, Medicare, Medicaid, Obamacare, or welfare, few economic regulations, no public-schooling systems, no overgrown military establishment, no CIA, no NSA, no immigration controls, few trade restrictions, no sanctions or embargoes, and no European or Asian wars. No system of torture, assassination, secret prisons, indefinite detention, and extra-judicial execution.
And then came the welfare state and the warfare state, which were supported by the vast majority of the American people, maybe even exceeding 98 percent. Americans wanted a welfare-warfare state and there was nothing that was going to stand in their way, certainly not the Constitution and the Bill of Rights.
In other words, like a sea wall, the Constitution and the Bill of Rights were designed to withstand cases where, say, 70 percent of Americans wanted something like mandatory religious indoctrination for children, gun registration and confiscation, or denial of due process in drug cases, but have been prevented from doing so on a permanent basis by virtue of the Constitution and the Bill of Rights. But the Constitution and the Bill of Rights were never designed to withstand a tsunami of public demand for statism that reached, say, 98 percent of the public.
That’s how we got the welfare-warfare state. That’s how things like socialist redistribution of wealth, minimum-wage laws, torture, and assassination became permanent features of America’s governmental system, without even the semblance of a constitutional amendment—because the Constitution and the Bill of Rights weren’t designed to withstand a statist tsunami.
Can the tide be reversed? Of course it can. People can’t help but notice the damage that statism has done and is doing to our country, to our sense of morality, and to our nation’s founding principles. It’s quite possible that a tsunami in favor of liberty is building.