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If our American ancestors in 1787 had been told that the Constitution was going to bring into existence a national government that would have the powers to torture and assassinate people, including American citizens, there is no reasonable possibility that Americans would have approved the document. They would undoubtedly have instead chosen to continue operating under the Articles of Confederation, notwithstanding the problems that had arisen under the Articles.
The American people were very skeptical about the new government that the representatives at the Constitutional Convention were proposing to them. Don’t forget, after all, that when the respective states selected delegates to the Constitutional Convention, it was with the aim of simply reforming the Articles of Confederation, which had provided for a national government with very weak powers. In fact, many people today are shocked to learn that under the Articles, the national government didn’t even have the power to tax.
The simple truth is that our American ancestors just didn’t trust government, especially after having lived under a British government that essentially wielded omnipotent powers over them. The last thing our ancestors wanted was to replace their previous government — the British government — with a similar type of government, albeit an American government.
Thus, when the Constitutional Convention, which had operated in secret, proposed a brand new national government to replace the government established under the Articles of Confederation, our American ancestors were not over-enthusiastic about it. They were especially concerned that the new federal government would end up doing bad things to them, such as arbitrarily killing them, torturing them into confessing to crimes, incarcerating them without trial, or arbitrarily searching their persons and homes, or a combination of such things. Our ancestors knew that that’s what governments, including the British government, had done to people throughout history.
So how did the proponents of the new federal government convince Americans to overcome their reticence to the proposed new government?
The proponents explained that the Constitution would set forth what powers the new government would have. If a power wasn’t enumerated, then it simply could not be exercised under the terms of the Constitution itself.
Therefore, the idea was that people would not have to concern themselves with the possibility that their new federal government would end up doing the types of things that other governments in history had done. Since the Constitution failed to delegate a power to arbitrarily kill people, the government was simply precluded from exercising it. The same held true for a power to torture people into making confessions, a power to arbitrarily search people’s homes or persons, or a power to incarcerate people without trial.
That argument — that the new government’s powers would be limited to those enumerated in the Constitution — was persuasive to people. They could read the Constitution and see that the new government would be subject to the terms and conditions of the document. The most important condition was that the new federal government would be a limited-government constitutional republic, one whose powers would be confined to those few powers enumerated in the Constitution itself and to the implied powers that would be necessary to implement the enumerated powers.
However, even the enumerated-powers doctrine wasn’t good enough for our American ancestors. They knew that the federal government would inevitably attract the type of people who would thirst for ever-increasing amounts of political power over others.
Indeed, that’s the way it has been throughout history. There have always been those who will do whatever they can to satisfy what seems to be an uncontrollable compulsion to expand the power of government over others, just as there have always been those who instead yearn to live in a free society.
To satisfy lingering concerns over the possibility of the federal government’s going bad, the American people demanded that immediately after the enactment of the Constitution, it be amended to provide express restrictions on the authority of federal officials to infringe the fundamental rights of the people.
Proponents of the Constitution responded that no such express restrictions were necessary, given the enumerated-powers doctrine. Keep in mind: If a power wasn’t enumerated, it couldn’t be exercised.
Reflecting their severe distrust of government, the American people nonetheless demanded the enactment of a Bill of Rights, which wasn’t really a “bill of rights” at all. It was instead a “bill of prohibitions.” Reflecting Thomas Jefferson’s observation in the Declaration of Independence that people’s rights preexist government, the Bill of Rights expressly prohibited the federal government from violating people’s fundamental, natural, God-given rights.
Consider, for example, the First Amendment. It doesn’t give people the right of freedom of speech, freedom of the press, or freedom of religion. Instead, it prohibits Congress, and implicitly the entire federal government, from infringing those fundamental rights.
Why did our ancestors believe it was important to specify the protection of those particular rights in the First Amendment?
The answer is obvious: Because they knew that the federal government would inevitably attract the type of people who would infringe those rights or use governmental power to punish people for exercising them, especially people who were critical of what the government was doing.
After all, if our ancestors believed that that likelihood was minuscule, they would never have bothered to enact an amendment that made it clear that federal officials, regardless of who they were, would not have the authority to do those sorts of things to people.
The Constitution established a judicial branch of government. Its job would be to enforce the Constitution against the president and the Congress. Thus, when the president or Congress engaged in actions that infringed freedom of speech, which our ancestors believed they inevitably would do, it would be the responsibility of the federal judiciary to declare such actions null and void under the express terms of the Constitution.
When we examine the Fourth, Fifth, Sixth, and Eighth Amendments, we see that the rights and guarantees in those amendments are very much different from those in the First Amendment and, for that matter, the Second Amendment, which guarantees the right to keep and bear arms. Those four amendments pertain to powers of the federal government to kill, torture, incarcerate, and search people.
Let’s keep in mind two points: The powers to do those types of things were not among the enumerated powers in the original Constitution, just as the power to deprive people of freedom of speech isn’t enumerated.
But just to play it safe, the American people secured the passage of those four amendments as an express message to federal officials, a message that essentially said: You are expressly prohibited from doing bad things to people without following well-established procedures and without honoring time-honored procedural guarantees.
To make clear that that the new government would be prohibited from arbitrarily killing people, our ancestors enacted the Fifth Amendment. It prohibits any person from being deprived of life without due process of law.
Notice something important about the Fifth Amendment (and, for that matter, the Fourth, Sixth, and Eighth Amendments): It doesn’t limit its applicability to American citizens. It includes within its protection all persons, regardless of citizenship. Our American ancestors didn’t want a government that was prohibited from arbitrarily killing only American citizens. They wanted to make certain that the new federal government would be prohibited from arbitrarily killing anyone, American citizens and foreign citizens alike.
Why did our ancestors deem it important to have such an express protection? Because they were convinced that the federal government would ultimately attract the type of people who favored arbitrarily killing people, especially people who were opposing governmental wrong-doing. If our ancestors didn’t believe that there was a high likelihood that the government would end up attracting those types of people, there would have been no real reason to enact such an amendment.
What about the phrase “due process of law”? It actually stretches back centuries into British history, all the way back to the year 1215. That was when Magna Carta — the “great charter” — was signed. That was when the barons of England required their king — King John — to formally acknowledge that his authority over them was not omnipotent but instead was limited in nature.
Prior to Magna Carta, the king took the position that he could kill, assassinate, incarcerate, torture, and execute anyone he wanted and for any reason he wanted, including to punish people who were criticizing what the government was doing. His authority as king was omnipotent. The citizen, as a subject of the king, was required to obey and submit.
Magna Carta required the king to acknowledge that he no longer wielded total authority over the English people. The charter expressly prohibits the king from going against anyone in violation of “the law of the land.”
That phrase — “law of the land” — gradually evolved into the phrase “due process of law,” a phrase that our American ancestors applied against the president and Congress in the Fifth Amendment.
What does “due process of law” mean? At the very least, it means that the government may not kill or otherwise punish a person without providing him a trial and an opportunity to be heard. A short-hand rendition would refer to this protection as “notice and hearing.”
In other words, with the passage of the Fifth and Sixth Amendments our ancestors were effectively saying to the president and Congress: Before you kill, assassinate, or execute anyone, you will first have to have a hearing or a trial before an impartial jury, during which the accused will be entitled to challenge your accusation and during which he will have time-honored procedural guarantees, such as the right to counsel, the right to remain silent (i.e., the right not be tortured into making a confession), the right to confront and cross-examine witnesses, the right to call witnesses, and the right to be free from cruel and unusual punishments (e.g., torture).
Those procedural guarantees, plus more, are enumerated in the Fourth, Fifth, Sixth, and Eighth Amendments. The central idea was that the new federal government was designed to be different from other governments throughout history. This government would lack the legal power to do bad things to people without first following processes and procedures that had been carved out by English citizens during centuries of resistance against the tyranny of their own government.
Yet here we are today with a federal government that wields the omnipotent legal power to search, incarcerate, torture, assassinate, and execute people, both foreigners and American citizens alike, without hearing, trial, or due process of law.
How did such a revolutionary change in our constitutional system come about? Why did the federal judiciary abrogate its constitutional responsibility to enforce the Constitution against the president and Congress? How have we ended up with a federal government that our American ancestors would never have permitted to come into existence?
This article was originally published in the August 2014 edition of Future of Freedom.