Protecting the country from invasion and securing individual rights are two of the vital functions of the federal government. At the same time the government is the greatest threat to our freedom. This was the subject of FFF’s June conference, “Restoring the Republic: Foreign Policy and Civil Liberties.” An underlying theme, touched on by every one of the speakers, was the relationship between the state and the individual, for it is the individual who ultimately feels the effects of the government policies. For Americans, the rulebook for this relationship is the Constitution.
In the United States, the Constitution is the primary connection between the individual and the state. It is the law of the land and the document that trumps all others when determining what the state may and may not do.
The Constitution was designed to protect us, the people, from government. It is the government, however, that has advanced an overactive foreign policy for the past several decades, and it is the American people who now feel the adverse effects of the resulting blowback. It is the government that violates civil liberties, and it is the individual who feels the effects of government surveillance, detention, and torture.
The relationship between the individual and the state is a problem that is as old as history itself. Governments have been abusing and killing their citizens since men began to rule over other men. R.J. Rummel, a professor of political science at the University of Hawaii, estimates that between war, genocide, state-induced famines, and the like, governments across the globe were responsible for the deaths of more than 262 million people in the 20th century alone. As Rummel states, if all of those people were laid head to toe, they would circle the Earth ten times. If the state’s treatment of the individual had to be described in one word, it undoubtedly would be “violence.”
This leaves us, the individuals, with a conundrum; we want the state to protect us from invasion, theft, and murder, but we don’t want it killing us or sending us to occupy another country to be killed by others.
That is a dilemma that the U.S. Constitution was devised to address.
How is the Constitution to do that? In a nutshell, the Constitution formed a national government that provided for the common defense while simultaneously protecting the individual from that very government it had brought into existence. It was acknowledged that individual rights, or natural rights, precede the existence of government and are inherent. Any government action that violated those rights was illegitimate.
For those who cherish liberty, the Constitution is the best attempt at leashing the government that has ever been made. It restricted the power of the government while retaining the rights of the individual. A common misconception is that the Constitution grants us our rights. High-school students are routinely asked what rights the First Amendment gives them, but the question itself is in error. The Constitution does not grant the people any rights. Rights are inherent and inalienable. The Constitution protects rights, rights that precede all forms of government, rights that all of us would still retain even if we were living without government.
In order to protect civil liberties, the Founders wanted to make it explicit as possible what the government was and was not permitted to do. Article I, Section 8 of the Constitution lists the powers that Congress can legally exercise. If a power is not enumerated in that list, Congress cannot legally perform it.
The meaning of the “enumerated powers” doctrine has long been lost on citizens and politicians alike, but there is no question that this is what the Framers intended to do.
Thomas Jefferson wrote in 1817,
Congress has not unlimited powers to provide for the general welfare, but only those specifically enumerated.
James Madison wrote at the Virginia convention to ratify the Constitution in June 1788,
[The] powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction.
And even embedded in the Constitution itself is a provision to reaffirm what Article I, Section 8 already implied. The Tenth Amendment reads,
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.
The Bill of Rights, of which, of course, the Tenth Amendment was a part, was not even thought necessary by some of the Framers because the enumerated-powers doctrine made it clear that the federal government had extremely limited powers, none of which included violating natural rights. But it was the Anti-Federalists who were adamant that the Bill of Rights be adopted — and it is a good thing that they so insisted, because the enumerated-powers concept underlying Article I, Section 8, has been a forgotten part of the Constitution for a century. The first ten amendments to the Constitution have been the bulwark against the government that has enabled us to retain many of our freedoms.
In a nutshell, the Bill of Rights clearly specifies what the government may not do to people. It may not punish us for speaking or printing our opinion or for protesting against the government. It may not take away our guns. It may not search us or our homes without a justifiable reason. It may not jail us without giving us a reason, and it must provide us with a quick trial so that innocent men are set free as soon as possible. The trial a man receives must be by a jury of his peers, if he so elects, so that corrupt judges cannot jail him unjustly. (For a detailed exposition of the Bill of Rights, see Jacob Hornberger’s 11-part series starting in the July 2004 edition of Freedom Daily.)
And to make clear that this list of protected rights wasn’t thought of as exclusive, the Ninth Amendment states explicitly that this enumeration of rights “shall not be construed to deny or disparage others retained by the people.”
This framework held fast until the beginning of the 20th century. As Progressivism and eventually the New Deal grabbed the imagination of the country, the federal government began to exercise its power over more and more aspects of everyday life, in the process infringing upon the liberties that people of the 18th and 19th centuries took for granted.
The Framers also had a clear idea of how their country should act on the world’s stage. Fortune had brought them a country separated from most of the world’s wars by two vast oceans. They had recently waged a long-fought, hard-won war against an imperial government, and they simply wanted a government that would leave them alone.
Eights years after the Constitution was ratified, George Washington gave sage advice in his farewell address:
The great rule of conduct for us, in regard to foreign nations, is in extending our external relations to have with them as little political connection as possible….
Europe has a set of primary interests which to us have none, or a very remote relation. Hence she must be engaged in frequent controversies, the causes of which are essentially foreign to our concerns….
James Madison knew that warfare, even incited from within the government, could be detrimental to the health of the republic, saying,
If Tyranny and Oppression come to this land, it will be in the guise of fighting a foreign enemy.
And John Jay warned in Federalist No.4
[The] safety of the people of America against dangers from foreign force, depends not only on their forbearing to give just causes of war to other nations, but also on their placing and continuing themselves in such a situation as not to invite hostility or insult; for it need not be observed, that there are pretended as well as just causes of war.
So how were the Framers to protect this nation from unjust wars? They knew that too much power concentrated in the hands of any one man, or group of men, eventually leads to despotism. What provisions did the Constitution have that would attempt to limit the government to only the most necessary of wars? Like so many other functions of the Constitution, the powers that were needed to implement foreign policy were divided between the executive and legislative branches.
The power to declare war was given to Congress, but the president was the one with the power to wage it. The president might wish to wage war, but he needed to get a declaration of war from Congress before he could do so. And even if a president was successful in getting a war started, Congress had the power to stop it by cutting off the money that funded it.
The system of checks and balances so highly regarded by historians was supposed to prevent the ascension of a tyrannical government. Instead of enabling one man or one body of men to determine when the country was to go to war, the Constitution saw to it that different parts of the federal government would have to debate and ultimately agree among themselves that war was the proper route.
When war fever gripped the nation, which the Framers knew would inevitably happen, it was hoped that the built-in tension between the executive and legislative branches would enable cooler heads to prevail and avert nondefensive wars. In theory, special or fractional interests that were motivated to start war would be thwarted by the majority of those in Congress not willing to suffer unnecessary warfare. Unlike the monarchs that ruled most of the civilized countries of the world in the 18th century, America’s head of state had no authority to go to war.
When Congress did decide to take the nation to war, the president would then assume the power of commander in chief. In the event that he began to abuse his war power — for example, by invading other countries or even turning the army on U.S. citizens — Congress could pull the plug.
The Constitution mandates that if Congress raises an army, it cannot fund it for longer than a two-year period. This provides a relief valve in case the army or the president gets out of hand — the Congress simply refuses to supply the military with money when the two years are up.
This system — that is, separating the powers to declare war, wage war, and fund war — served our nation fairly well (we’ll leave aside for future discussion the War Between the States and the Mexican-American War) from its inception through the late 1800s. But as the new century dawned, Americans found that their government had imperial ambitions and that their army was spread across the globe. U.S. soldiers could be found supporting a puppet regime in Hawaii. With a cry of “Remember the Maine!” the government turned George Washington’s maxim of disentanglement on its head by declaring war on Spain and sending its soldiers to the Philippines, Guam, Puerto Rico, and Cuba. Seeking a canal across Central America, the U.S. military played an instrumental role in Panama’s secession from Colombia. More than 100,000 Americans lost their lives fighting in World War I, which of course was the war that would end all wars. There have been a few since then.
The words of Theodore Roosevelt, Woodrow Wilson, and Franklin Roosevelt were a far cry from those of the Framers. Instead of “observing good faith and justice toward all nations,” Americans heard that they should “speak softly and carry a big stick.” They heard Woodrow Wilson tell them that “armed neutrality is ineffectual enough at best.” And Franklin Roosevelt instructed that “we must be the great arsenal of democracy.”
During the period between the Spanish-American War and World War II, while the federal government was moving toward an imperial foreign policy, at least the declaration-of-war requirement was still being heeded. In the conflicts of those tumultuous times, the president asked Congress for a declaration of war because the Constitution required him to secure it. Presidents do not bother with such niceties any longer.
Congress has not declared war against any nation since World War II — a span of more than 65 years. Yet since World War II, U.S. troops have been deployed 71 times to 42 countries, with more than 98,000 U.S. dead and more than 279,000 wounded. A declaration of war was not obtained for any of these conflicts.
The Constitution no longer chains the military or the president as it was designed to do. The chains weakened as the Progressive movement gripped the country and as an imperial mindset sent American soldiers far and wide. When the U.S. government began to impose its will on the nations of the world following World War II, the Constitution was eventually ignored and forgotten. Most people today cannot even name the three branches of government, much less explain the separation-of-powers doctrine.
The Constitution today
In the span of 220 years, our republic evolved from one of enumerated powers, narrowly defined by the Constitution, to an extremely powerful, highly centralized, militant government that is forever extending the boundaries of its power.
Today, the U.S. military is an imperial behemoth with more than 700 overseas military bases in 130 countries. It has an additional 6,000 military bases in the United States and its territories. The budget for the Pentagon is larger then the 20 next-largest militaries combined.
As the federal government has become more militant, it has taken ever-bolder steps in trampling our liberties. On a domestic level, the government began inspecting our food. It tore apart companies it thought too large and powerful. It dictated prices for goods and services. It razed entire neighborhoods in the name of “urban renewal.” It has spied on its own citizens. It has attempted to nationalize complete industries. And now, in the 21st century, it has moved to depriving us of us even the most basic civil rights, such as a right to a fair trial. Torture is now an accepted form of “justice.”
The Constitution was designed to prevent the state from doing these very things, but it has ceased doing so. This does not mean that the Constitution is flawed in design. No constitution, no matter how well designed, will work as intended if the citizens do not care whether their politicians observe it, or even understand its very purpose. The Constitution is an excellent framework for government; it just needs to be understood and observed.