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Remembering the Constitution


CONSTITUTION DAY — September 17 — came and passed without fanfare. That is the day that commemorates the signing of one of the two most important documents in our nation’s history. (The other one, of course, is the Declaration of Independence, which we celebrate on the Fourth of July.)

In the midst of a crisis in which Congress has vested Caesar-like powers in the president to wage war against anyone anywhere, in violation of the constitutional protection that prohibits the president from waging war without an express declaration of war from Congress, it is critically important that we remind ourselves of the meaning and purposes of our Constitution. This is especially true given that some public officials are now trying to use the crisis as a way to sacrifice the civil liberties of the American people with “anti-terrorism” legislation.

When our American ancestors consented to calling into existence the federal government in 1787, the means by which they did so was the document known as the Constitution. Contrary to popular opinion, the Constitution was not — and is not — a grant of rights to the citizenry. Instead, the Constitution is a “barbed-wire entanglement” designed to interfere with, restrict, and impede government officials in the exercise of political power.

For example, the Constitution does not grant anyone freedom of speech, freedom of the press, the right to assemble, or the right to bear arms. In fact, one searches in vain for any language in our Constitution that grants any rights to the people whatsoever. (The Constitution can be found in any World Almanac and can be accessed on the Internet at the website of the National Archives and Records Administration, where the original Constitution and Declaration of Independence are housed: www.nara.gov)

Instead, recognizing the truth expressed in 1776 in the Declaration of Independence that people’s rights preexist government, the Constitution is actually a limited grant of enumerated powers to government officials and a series of restrictions that prohibit government officials from interfering with the exercise of rights that preexist government.

To put this more clearly, read the First Amendment carefully. You will notice that it does not give people the right to express their views. It instead prohibits (the democratically elected) Congress from enacting any law that interferes with a person’s (preexisting) right to express his views.

That distinction was — and is — critical, and it was well understood by our Founders and ancestors. They recognized that our rights don’t come from the Constitution; instead the Constitution prohibits government officials from interfering with fundamental rights that preexist government.

Why didn’t our ancestors instead institute a government with general, unlimited powers to “do the right thing,” even deprive the citizenry of their rights, especially in the midst of a crisis? Because they knew how governments throughout history had used unlimited political power to trample upon and even destroy the rights of the citizenry, especially during crises and usually with the best of intentions. Thus, the Constitution — an external constraint on government officials that is rooted in a lack of trust in omnipotent political power, no matter what the circumstances.

Consider the words of the U.S. Supreme Court in Ex Parte Milligan (1866), a case that arose during our nation’s Civil War:

Those great and good men foresaw that troublous times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism.

It is perhaps understandable that Americans would forget to celebrate Constitution Day given the recent tragedy and the current national crisis. But if we forget our Constitution — its meaning and its purposes — we do so at our peril.

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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.