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Hornberger's Blog is a daily libertarian blog written by Jacob G. Hornberger, founder and president of FFF.
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If We Had No Constitution and Bill of Rights


What would life be like without the Constitution and the Bill of Rights? For the answer, all we have to do is look at places where the federal government operates independently of the Constitution and the Bill of Rights.

Consider Guantanamo Bay, for instance, a federal installation that the president and the Pentagon announced from the very beginning would be totally independent of the Constitution and the federal judiciary. While the Supreme Court ultimately dashed that hope, we nonetheless can get a fairly good idea as to the type of federal judicial system that would be operating in the United States had our ancestors not demanded passage of the Bill of Rights.

In Guantanamo, defendants have had no right to a speedy trial. There are people there who have been languishing in jail for some 13 years without a trial. Oh, sure, throughout that time they’ve been promised a trial but it’s always been just a promise. For all practical purposes, the inmates are incarcerated indefinitely, perhaps for the rest of their lives, without any chance of ever being brought to trial.

Whenever the federal government invades, conquers, and occupies a foreign country, one of the first policies it establishes is one of indefinite detention. Suspects are rounded up, especially men in their 20s and 30s, and simply locked away in jail. Oh, sure, they’re promised a trial one of these days on the charge of “terrorism,” but everyone knows that the trials never come.

Torture is another important part of federal Constitution-free zones. That’s what has happened at Guantanamo, Bagram, and other federal overseas prisons. There is also rendition, a policy in which federal officials send suspected terrorists to brutal partner dictatorships, whose job is to torture the inmates into confessing or divulging information.

Inmates at Guantanamo Bay and other federal facilities are presumed guilty and are treated as if they are guilty. There is no such thing as bail. There is no right of trial by jury by one’s peers. Guilt is determined by federal officials serving as a tribunal.

If trials are ever held, the defendants have no right to confront the witnesses against them. Hearsay is admissible, which is another way to deny defendants the right to confront their accusers. Communications between attorney and client are monitored by federal officials. Many of the legal proceedings are conducted in secret. The trial is not open to the public.

In the process of “rebuilding” a nation they have invaded and occupied, one of the most important things that federal officials do is establish and train a powerful military-intelligence establishment and make it the foundation of the nation’s governmental system, just like the ones in Iraq, Afghanistan, and Egypt.

They also immediately begin confiscating weapons and make it illegal to own them. The reason? They don’t want any resistance to their orders. Their aim is to establish “order and stability,” which necessarily depends on submissiveness and obedience. The last thing they’re going to do is recognize the right to keep and bear arms by the local citizenry.

They also establish a system of unrestrained search and seizure, which involves no judiciary to interfere with operations. Everyone’s door is subject to being bashed in at any hour of the day or night, with agents having the unrestrained power to search people, homes, and businesses for weapons, contraband, and anything else. There is no such thing as judicially issued search warrants based on probable cause.

The military-intelligence establishment of the government that is being “rebuilt” is taught how to secretly monitor the activities of the citizenry, all with the purported aim of keeping people “safe” and maintaining “order and stability.”

Consider the regimes that the U.S. supports and partners with, such as the military dictatorship in Egypt. The $1.1 billion in armaments that the federal government furnishes the Egyptian military is used to shut down dissent, protests, demonstrations, and a critical press. That’s precisely why our American ancestors opposed the idea of a standing army.

In other words, when federal officials have the unfettered authority to operate without the constraints of the Constitution and Bill of Rights, they do all the things that our ancestors believed they would do here at home in the absence of the Constitution and the Bill of Rights.

As bad as things are with respect to NSA surveillance, torture, indefinite detention, and other aspects of the U.S. national-security state, imagine what life would be like if America were a Constitution-free and Bill of Rights-free zone. Thank goodness our American ancestors didn’t trust federal officials with unrestrained power and instead demanded passage of the Bill of the Rights as a condition for agreeing to let the Constitution call the federal government into existence.




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Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.