I did not want to discuss the changes our country has been making, post 9/11, on 9/11, but it is vital, as we mourn for the victims of that terrible day, that we also consider how 9/11 has been, for our civil liberties, very similar to a bad motorcycle accident in that, like someone whose life was forever changed by injury, our civil liberties have been forever changed by 9/11.
On October 26, 2001, President George W. Bush signed the Patriot Act, and sent our country in a very dangerous direction, giving the President broad discretion to treat those captured overseas on suspicion of terrorism as ‘enemy combatants’, who could be held indefinitely, without trial, arraignment, or even access to a lawyer, on suspicion alone. Torture was authorized, so if the President decided he did want to try someone, he could first solicit a confession. This power was extended to US Citizens overseas as well.
On December 31, 2011, President Barack Obama signed the National Defense Authorization Act, which gave the President the power to indefinitely detain US Citizens who are suspected of being terrorists, of aiding terrorists, or of having connections to terrorists, without trial, arraignment, or even access to a lawyer, even if those American Citizens are on US soil. The President even has the power to kill US Citizens on US soil.
The President can use secret courts, with secret evidence, to get authorization to do these things, and the accused has no right to even be present when the secret evidence is looked at in a secret court.
Let’s see how this squares with the Bill of Rights:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
As anyone with even half a brain can plainly see, the government is utilizing powers that, not only is it not authorized to utilize, but that it is expressly barred from utilizing.
College campuses, once bastions of free speech, now limit or prevent it. Cities, including our capital, have declared the existence of ‘free speech zones’, outside of which speech and assembly can be called illegal. Let’s see how that squares with the Bill of Rights:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Unless ‘Congress shall make no law’ means something other than ‘Congress shall make no law’, these restrictions on free speech are outrageous and illegal. Private colleges can of course do as they wish, but state colleges have no right to limit speech or assembly, and certainly state, local, and the federal governments cannot do so, as it is expressly forbidden.
Note too that asking Federal appointments, in Senate confirmation hearings, about their religious beliefs, and using those beliefs to vote against them, has become commonplace. That would seem to prohibit, “the free exercise thereof”.
I mentioned torture earlier. Let us see how that squares with the Bill of Rights:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Is waterboarding not ‘cruel and unusual’? How about sleep depravation and other ‘enhanced interrogation techniques’?
Finally, we have this oldie but goodie:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
We gave that one up after the Civil War, when many of the War Powers Lincoln took as commander in chief were never surrendered back to the states. Our federal government goes so far beyond the powers ‘delegated to the United States by the Constitution’ that the Tenth Amendment reads like some kind of sick joke. Obamacare? Which Article is that in? You might not know the answer to that, so let us review the powers of Congress:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
To borrow money on the credit of the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and Post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
That’s it, and Obamacare is not in there. Anything not in there is left to the states, or to the people. And note that the first sentence is a preamble, explaining the purpose of the rest of the section. The only power bestowed by this sentence is the power to ‘lay and collect Taxes, Duties, Imposts and Excises,’ for the purposes mentioned in the rest of the preamble, but defined by the rest of Article 1, Section 8. In other words, providing for the ‘General Welfare’ is NOT a power, except as defined by other parts of Section 8. This fact was not even in question during the drafting of, or for the first few years after the passing of, the Constitution.
Our federal government does all KINDS of things not listed in Article 1, Section 8. Those powers only exist, where they exist at all, with the individual states. Romneycare was legal, because it was done at the state level. Even if Obamacare were identical to Romneycare, it would be unconstitutional at the federal level.
Most of the things Congress has enacted under the ‘Interstate Commerce’ clause are unconstitutional. The logical leaps of faith the Supreme Court has made to ignore that fact provide an interesting read, but only the interstate nature of commerce is within the Federal purview. The federal government was never intended to have absolute control of anything if any part of it crosses state lines.
The vast majority of the EPA’s powers should only extend to the District of Columbia – the only part of the country Congress has the power to directly control. The rest of the vast majority of the powers of the EPA should rest with the environmental agencies in each individual state.
Our federal government bears little resemblance to the federal government authorized by the US Constitution, and the blatantly unconstitutional powers taken under the Patriot Act and the National Defense Authorization Act must be stripped away. No government should have these powers, and particularly when government is expressly barred from them.
We, the people, have been silent too long. We need to act, writing and calling our elected officials to hold them to task, and discussing the proper role of government, as per the Constitution, amongst ourselves. We need to blog about this, tweet about this, post to Facebook about this, and we need to use our Freedoms of Assembly and Speech to protest each and every usurpation of power that the federal government should not have. We also need to vote differently, using libertarian or Constitutional values as a litmus test for any candidate we choose. It isn’t just Democrats we need to vote out of office; most of the current batch of Republicans need to go too.
Finally, since Congress is not apt to reduce it’s power – Constitutional limits be damned – we need to use the court system crafting careful court cases, such as against specific powers of the EPA, to get the court to acknowledge that those specific powers belong to the states. If we can get the courts to strike down small powers, we can use those victories, and the legal precedents they represent, to strike down the rest. A conservative court, which one more vote will give us, is far more apt to strike down unconstitutional powers, than is Congress. We should start there.