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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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Our Ancestors Were Right About the Bill of Rights


A few weeks after the 9/11 attacks, a woman came up to me before I was to give a speech and said, “Thank goodness we have the Bill of Rights to protect us from the terrorists.”

She was serious. As I engaged her in conversation, I realized that she really believed that the purpose of the Bill of Rights was to protect us from “the terrorists.” I thought to myself: This poor woman. The public-school system, along with all the post-9/11 propaganda about “the terrorists” (later to morph into “the Muslims”) had really done a number on her.

No, the Bill of Rights has nothing to do with protecting people from “the terrorists,” unless one thinks that U.S. officials, including the troops, are terrorists. That’s because the purpose of the Bill of Rights really is to protect the American people and others from federal officials, including the troops, the CIA, and the NSA.

That shocks some Americans. It’s a very discomforting thought for them. They consider the federal government to be their friend, provider, and protector. It gives people their retirement checks and healthcare with Social Security, Medicare, Medicaid, and Obamacare. It protects them from the drug dealers and illegal immigrants. It educated them and educates their children. It kills terrorists (and communists and Muslims) over there before they can come over here and kill us.

How in the world could anyone suggest that the American people need to be protected from the federal government?

And yet, there it is: Every amendment in the Bill of Rights expressly or implicitly protects the country from the federal government, including the troops, the CIA, and the NSA.

Why did our American ancestors insist on passage of the Bill of Rights as a condition for approving the Constitution, which called the federal government into existence?

Very simple: They were convinced that the federal government would end up assuming and exercising totalitarian-like powers, which they would use to do bad things to people, such as prohibiting them from speaking out or demonstrating against the government. That’s why the First Amendment was enacted.

They also figured that federal officials would try to seize their guns, so that people would lack the means to resist the troops when they started doing bad things to them. That’s why the Second Amendment was enacted.

They also believed that U.S. officials would incarcerate people, torture and abuse them, and execute or assassinate critics or opponents. That’s why the Fourth, Fifth, Sixth, and Eighth Amendments were enacted.

Today, some Americans, many of whom are on the federal dole, would undoubtedly exclaim, “What our ancestors did was outrageous and insulting. Our federal government would never do such things to us. It loves us. Just look at the retirement checks they send us every month. Medicare, Medicaid, and Obamacare keep us alive and healthy. We don’t need the Bill of Rights. It is antiquated and demeaning to our federal officials, especially to the troops, who we should always be thanking for their service.”

And yet, there is something important to note: Whenever federal officials, especially those in the national-security state branch of the government, have operated without the constraints of the Bill of Rights, they have done all the things that the Bill of Rights prohibits.

Consider Guantanamo Bay, Iraq, Chile, Afghanistan, Iran, or other places where the Pentagon and the CIA have installed and trained foreign regimes. U.S. officials established all those regimes as totalitarian or authoritarian states, with omnipotent, national-security state governmental structures rather than as limited-government republics, at type of governmental structure that characterized the U.S. government before it became a welfare-warfare state in 20th century.

Recall Chile in 1973, where U.S. officials, after 3 years of efforts, succeeded in installing a military regime headed by Gen. Augusto Pinochet. Pinochet proceeded to round up tens of thousands of innocent people, rape them, torture them, commit gruesome sexual acts against the women, kill them, or disappear them.

No, Pinochet didn’t pesonally do those things himself. His troops and intelligence agents did them for him. But that’s how tyrannical regimes always work — they work through their troops and their intelligence agents, who inevitably follow whatever orders they are given. If they don’t follow orders, they are shot or replaced, which induces the rest to follow orders.

That’s precisely why our American ancestors were so opposed to standing armies and national-security states. They knew that the troops and the intelligence agents inevitably end up as the means by which a tyrant imposes enforces his will on the citizenry.

Throughout the Pinochet rapes, abuses, torture, and killings, U.S. officials were ardently and enthusiastically supporting his regime, not only with money but also with training. They believed in what Pinochet and his goons were doing.

The Bill of Rights prohibits U.S. officials from doing what Pinochet and his U.S. enablers were doing to the Chilean people. Of course, someone might say, “But Jacob, the Bill of Rights didn’t apply to what was going on in Chile. That might or might not be true, but the point is this: Freed of constitutional constraints, U.S. officials were fully supporting actions that would have been prohibited here by the Bill of Rights. And they had no reservations about doing that.

In fact, as part of their coup scheming, U.S. officials themselves orchestrated the kidnapping of the commanding general of Chile’s armed forces, Rene Schneider, who was standing in opposition to a U.S.-instigated coup on the ground that it would be illegal under Chile’s constitution. U.S. officials also participated in the execution of two innocent American men, Charles Horman and Frank Terrugi. Owing to the overwhelming power of the Pentagon and the CIA, neither the Justice Department (with a grand jury investigation or indictments) nor the federal judiciary (in lawsuits brought by the victims survivors) intervened, notwithstanding the fact that those actions clearly constituted felonies committed here in the United States (i.e., conspiracy to kidnap and murder).

Consider Guantanamo Bay. When the Pentagon initially set up its prison camp at that site in Cuba, it believed that it was going to be a Constitution-free zone, one where there would be no interference by the U.S. federal judiciary. Thus, the Pentagon set up what it considered to be an ideal prison camp and judicial center.

What was the result? No, not a place that embodied the principles of the Bill of Rights. Instead, the exact opposite — a place that violated every single principle of the Bill of Rights! No freedom of speech or freedom of the press, a place where people were brought, incarcerated, tortured, abused, presumed guilty, and denied trial by jury, right to bail, effective assistance of counsel, and trial by jury.

Look at the regimes that U.S. officials established in Iraq and Afghanistan: They are omnipotent national security states, modeled after the post-WWII structure of the federal government. Moreover, they are official Islamic regimes, ones where Sharia law controls. In other words, no limited government republic and no Bill of Rights. No protections against unreasonable searches and seizures. The authorities in those two countries wield the totalitarian-like power to bash in people’s doors whenever they want to search for incriminating evidence, something the Fourth Amendment prohibits.

There is no doubt that the Constitution failed to protect the American people from their own overwhelming desire for a welfare state and a national-security state, as many critics have rightly observed. As I pointed out in part 6 of my series “Why I Favor Limited Government,” however, that’s because the Constitution was akin to a sea wall designed to protect against high tides, not against political tsunamis in which most everyone wants to abandon his liberty for the pretense of security.

As bad as things are when it comes to liberty, and as many violations of the Constitution there now are (e.g., the declaration of war requirement and the powers to incarcerate, torture, and assassinate Americans and others), thank goodness for the courage, wisdom, and foresight of our ancestors. Without the Bill of Rights, U.S. government personnel would be doing to people here all of the things they do to people over there.

This post was written by:

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.