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Was the Cold War Constitutional?


For 45 years, the United States was engaged in a Cold War against the Soviet Union and communism. In the 1960s, the war brought the country to the edge of nuclear war. It brought about the deaths of more than 100,000 American soldiers in Korea and Vietnam. It brought ever-increasing budgets, power, and influence for the military, the military-industrial complex, the CIA, and the NSA. The Cold War held America in its grip until it suddenly and unexpectedly came to an end in 1989.

Through it all, most everybody just accepted it. At the end of World War II, Americans were too shell-shocked from all the death and destruction from the war to question or challenge anything U.S. officials were saying about the new threat they were supposedly now facing — from their wartime partner and ally, the Soviet Union and the ideology it represented, communism. Americans were made to believe that the Russians and Reds were coming to get them, conquer them, subjugate them, and force them to become communists.

At the same time, U.S. officials emphasized that communism or socialism — as a philosophy, ideology, or economic system — posed a grave threat to America and that the country was in great danger of falling victim to this deadly and destructive ism.

To prevent the United States from falling to communism or the Soviet Union (or Red China), U.S. officials said, it was necessary for the federal government to wage the Cold War, and, if necessary, hot wars, such as those that came about in Korea and Vietnam.

In order to wage the Cold War and prevent America from going Red, Americans were told, it would be necessary to transform the federal government from a limited-government republic to what is called a national-security state, a type of governmental apparatus that vests extraordinary totalitarian-like powers in the government, such as the power to kill people without due process of law or trial by jury, to secretly spy on people, or the effect regime changes based on the preservation of “national security.”

Shell-shocked over the massive death and destruction from World War II, a war that Americans had been overwhelmingly opposed to entering, post-war Americans placed their blind faith in their government officials and loyally accepted their pronouncements, especially those emanating from the generals and CIA officials. Hardly anyone questioned the official Cold War narrative.

Equally important, hardly anyone questioned the constitutionality of the entire Cold War way of life.

When the Constitution called the federal government into existence, it set forth a government with express, enumerated powers. The American people at that time were not interested in bringing into existence a government of general powers — that is, one where government officials would wield the power to do whatever they felt was in the interests of the nation. Instead, the aim was to bring into existence a government whose powers would be limited to those listed in the Constitution itself.

Thus, in order to determine whether the federal government is authorized to engage in a certain action, all that people would have to do is examine the Constitution and see if it authorized the action in question. If it didn’t, then the action could not be undertaken, no matter how necessary or beneficial people might believe it would be.

If a particular power wasn’t enumerated and U.S. officials nonetheless wanted it to be added to the list of the federal government’s enumerated powers, the Constitution provided a remedy: amendment. That is, by following the prescribed route outlined in the Constitution, amendments could be added to the document that would add new powers to the federal government.

One searches the Constitution in vain for any grant of power to wage war on communism or to engage in what some called an anti-communist crusade. It simply isn’t listed within the federal government’s enumerated powers.

Yet, that’s precisely what U.S. officials were doing throughout the Cold War. They were fighting communism by harassing, abusing, torturing, spying on, and killing people who were communists, not only here in the United States but also in foreign countries.

Here in the United States, U.S. officials, especially those in the FBI, were spying on and infiltrating groups like the Communist Party and the Fair Play for Cuba Committee, a nation-wide group that was devoted to establishing normal relations between the United States and Cuba. People in Hollywood had their careers destroyed because of their belief in communism or their past associations with communists or communist organizations.  Martin Luther King was spied on and monitored out of a concern that he was a communist or had communist connections. The infamous McCarthy hearings bring to mind that famous accusatory question that struck fear in the hearts of many: “Are you now or have you ever been a member of the Communist Party?”

Yet, where was the constitutional authorization to wage war on communists or communism? It didn’t exist. The fact is that people had the right, under our form of government, to believe in communism, advocate communism, and even serve in the federal government as communists.

The government’s position was that communism was a destructive philosophy. If adopted here in the United States, it could spell the end of America’s democratic political system and free-market economic system.

Fair enough. As I libertarian, I wouldn’t argue with that. Socialism, or communism, is an economic philosophy that, in its purist form, calls for government ownership of everything, with everyone working for the state. As we have seen in places like Cuba, Venezuela, North Korea, and the Soviet Union, it produces nothing but chaos, crisis, discord, impoverishment, and even starvation. It can also be accompanied by unelected dictatorships, such as those in Cuba and North Korea, or elected dictatorships, such as the one in Venezuela.

Throughout the Cold War, the national-security establishment and American right-wingers maintained that the Constitution wasn’t a “suicide pact.” What they meant by that was that if by following the Constitution, the country would go down, it would be entirely proper for the Pentagon, the CIA, and the NSA to violate the Constitution in order to save the country.

Really? Where in the Constitution does it say that? If the Framers had wanted the military-intelligence establishment to have that sort of power, they would have put that into the Constitution. They didn’t. In fact, they were ardently opposed to military-intelligence establishments and believed them to be bigger threats to people’s freedom and well-being than statist philosophies, ideas, and systems.

Moreover, if the Pentagon, the CIA, and the NSA felt that they should have the power to wage war on communism and communists, they could have gone the Constitution amendment route. Throughout the 45 years of the Cold War, they never did. They just assumed the power to engage in extraordinary totalitarian-like actions, purportedly to protect “national security” from communism and communists — actions that were not authorized by the Constitution, such as the powers of assassination, kidnapping, sabotage, surveillance, regime change, coups, invasions, wars of aggression, installation of foreign dictators, and others.

The national-security state’s Cold War anti-communist crusade, of course, wasn’t limited to the United States. In Chile, U.S. officials conspired to engage in economic terrorism, kidnapping, murder, torture, and assassination as part of their secret campaign to oust the democratically elected president of the country, Salvador Allende, and install the brutal military dictatorship of Augusto Pinochet, whose national-security state officials proceeded to round up, kidnap, torture, rape, execute, assassinate, or disappear tens of thousands of people on the suspicion of being communists, all with the full support of the U.S. government.

It was the same with Jacobo Arbenz, the democratically elected president of Guatemala. He was a communist who permitted communists to serve in his government. The CIA went on the attack and orchestrated a regime-change operation, one that entailed the targeting for assassination of Guatemalan officials who believing in communism and the installation of a succession of brutal right-wing military dictatorships that threw the country into a 30-year civil war that killed millions of people.

Where in the Constitution did it authorize the U.S. government to fight communism in Chile and Guatemala?

For that matter, where in the Constitution did it authorize the U.S. government to fight communism in Korea and Vietnam?

Indeed, where in the Constitution did it authorize the U.S. government to fight communism here in the United States?


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.