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Lessons about Our Constitution from Abu Ghraib


Those who think that the U.S. Constitution is an antiquated document with no relevance to modern times might want to consider how federal officials would operate in the absence of constitutional restraints. The best evidence for such a thought experiment exists in Iraq, where U.S. officials have had the omnipotent power to run that country for the past year.

Let’s keep in mind the primary purposes of our Constitution and the Bill of Rights: to limit the powers of federal officials and to protect us, the American people, from the abuse of power by federal officials. The Constitution called into existence the federal government but, at the same time, expressly restricted its powers to those enumerated within the document. To further clarify the limited nature of the federal government’s powers, our ancestors ensured the passage of the Bill of Rights, which expressly restricts federal abrogation of fundamental rights.

Why were our American ancestors so insistent on such protections? Because they understood that the biggest threat to their freedom and well-being was their own government, despite the fact that its officials were democratically elected. Our ancestors understood that if federal powers were not restricted and if fundamental rights were not expressly guaranteed, U.S. officials, often with well-meaning zeal, would run roughshod over the lives, liberty, property, and well-being of the people.

Some might be tempted to conclude that today no such restrictions are necessary. Government officials today can be trusted to do the right thing, they might say. The federal government is our friend, our provider, our protector in the wars on poverty, drugs, illiteracy, and terrorism. Federal officials provide us with our retirement, health care, education, and food and protect us from drug dealers, terrorists, entrepreneurs, and foreigners. It ensures that we are a caring and compassionate people by taking our money and giving it to others.

Do we really need a Constitution anymore? Why not simply free federal officials to do whatever they think is necessary for our well-being, especially since we’re now involved in a perpetual “war on terrorism,” a war in which public officials claim that our very lives — indeed, our civilization — are at stake?

The answer is simple: We need our Constitution more than ever because otherwise U.S. officials would do to the American people exactly what they have been doing to the people of Iraq for the past year. Which means: closure of newspapers that criticize the U.S. military; shooting of peaceful demonstrators; warrantless searches of persons, homes, and businesses by military forces; gun control and gun confiscation; indiscriminate roundups of suspected criminals; indefinite detentions of people suspected of crimes; no right to counsel; no due process of law, jury trials, or right to confront witnesses; no right to bail; no habeas corpus; and, of course, the infliction of cruel and unusual punishments consisting of sex abuse, torture, rape, and even murder.

Don’t forget that the Pentagon has held two Americans, Yaser Hamdi and Jose Padilla, in custody for some two years, denying them all the rights guaranteed by the U.S. Constitution and the Bill of Rights. Have you heard a peep of protest from any member of the U.S. military? For that matter, how many members of Congress have protested this abhorrent and tyrannical conduct?

The uncomfortable truth is that all too many federal officials hold the Constitution and the Bill of Rights in contempt. Why else did the executive branch set up its prisoner camp in Cuba if not to be immune from the constraints of the Constitution and the judgments of U.S. federal courts? That the U.S. Congress has failed to condemn that decision is equally shameful.

Given that we now know how U.S. officials rule a country when they have omnipotent powers, without any constitutional restraints or guaranteed rights for the people, we should be thanking our lucky stars for the wisdom, courage, and foresight of the Framers and our ancestors. The next time someone ridicules the Constitution or the rights guaranteed in the Bill of Rights, ask him whether he would prefer living under U.S. occupation in Iraq, where no such restraints or guarantees exist.

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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.