Are Current Bill of Rights Erosions Unprecedented?

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of the Bush Administration's domestic measures in the War on Terrorism
often claim that the erosions of the Bill of Rights we see today
are unprecedented. Although President Bush and Attorney General
John Ashcroft are indeed stretching the envelope in many ways, to
call their policies unprecedented is to ignore history. For every
civil liberty currently being violated and for every amendment in
the Bill of Rights currently being ignored, there is a long and
rich legacy of similar abuse.

violations of the Constitution probably occurred during Abraham
Lincoln's four years as president than during any other cohesively
defined era in American history. Many have pointed out that Lincoln
suspended habeas corpus to jail war protesters, shut down
hundreds of newspapers that disagreed with his war, established
a draft for the first time in American history (except in the seceded
South, which had a draft a year earlier), instituted restrictions
on firearms, and sent troops to violently suppress the New York
draft riot. He also used the war to push through the "American
System," a program of de facto nationalization of the
transportation industry via massive subsidies to corporations that
would agree to build "internal improvements" – railroads,
waterways, and canals. The victory of the Union in 1865 not only
established that, contrary to popular political theory in the antebellum
era, the federal government was completely supreme over the states;
it also established that a president could do literally anything
he could get away with, no matter how many liberties were suspended,
innocents jailed, and people killed in the process.

is, in fact, almost silly even to refer to "Constitutional
rights" during the Lincoln Administration. Even historians
who obsessively admire the sixteenth president sometimes admit that
his regime was dictatorial (though, of course, they regard him as
having been a benign despot). During the War Between the States,
the Bill of Rights wasn't eroded or compromised; it was ignored
completely. But though the Bill of Rights gained strength immediately
after the Lincoln Administration, it remains useful to examine where
and how it has taken a comparable beating in the many years since

the Progressive Era, the federal government expanded in numerous
ways, regulating trade, adopting an income tax, creating the Federal
Reserve, and imposing new standards on industry for the production
of foods and pharmaceuticals. Almost all these new federal programs
and agencies were violations of the Tenth Amendment, which precludes
the federal government from exercising any powers not explicitly
delegated to it by the Constitution.

In domestic policy, the most significant "achievement"
of the Progressives was alcohol prohibition, which so nakedly expanded
federal power beyond constitutional limits that the Constitution
had to be changed with the 18th Amendment, lest Americans
simply refuse to put up with it. In banning alcohol, the politicians
not only sought to modify the relationship between the federal government
and the states and people — as spelled out in the Tenth Amendment
— but also attempted to control individual lives and personal behavior.
Many Americans had championed drinking alcohol as a personal right,
unenumerated but fundamental. The Ninth Amendment exists for the
sole purpose of protecting those rights of the people that are not
specifically listed anywhere else in the Constitution. Thus, Prohibition
and its enabling constitutional amendment not only altered the Tenth
Amendment's restraints on government, but the Ninth's as well.

foreign policy, the most significant "achievement" of
the Progressives was World War I. The Progressive Era had seen the
transformation of a relatively noninterventionist foreign policy
into an imperial one, and World War I allowed the U.S. government
to flex its muscles overseas in previously unimaginable ways. Woodrow
Wilson drafted millions of young men to join the bloodbath in Europe,
and when activists spoke out against the draft — or the war, or
even the flag — they were subject to incarceration under the Sedition
and Espionage Acts. Throughout some of the most egregious violence
the First Amendment would ever suffer, the Supreme Court generally
upheld these laws and the authority and right of the national government
to censor people if their speech was deemed an "imminent threat."
For some reason, most scholars look back at Chief Justice Oliver
Wendell Holmes as a great champion of First Amendment rights, even
though his decisions, when they did not side outright with the government,
only begrudgingly expressed complaints about violations of free
speech — and even though it was he who came up with the "fire
in the crowded theatre" analogy, which to this day is invoked
to explain why none of our rights, including free speech, is absolute.

precedent for total disregard of the Tenth Amendment picked up steam
during the New Deal, during which nothing in the economic sphere
was considered off limits. Franklin Roosevelt created an unspeakably
vast barrage of new federal agencies to manage the economy, and
when the Supreme Court protested some of his most ridiculous laws
– namely, the National Recovery Act and Agricultural Adjustment
Act – Roosevelt responded by threatening to stack the court in
his favor. After that, the court capitulated and showed its new
spirit of compliance by approving the Social Security Act.

as the Tenth Amendment's injury in the past had led to other Bill
of Rights violations, so, in the years of the Great Depression,
FDR signed such blatantly unconstitutional legislation as the National
Firearms Act of 1934 and the Marihuana Tax Act of 1937. During World
War II, on top of the involuntary servitude imposed on millions
in the form of the draft, the government crossed a new line in civil
liberties violations when Roosevelt signed executive order 9066,
forcing 110,000 Japanese Americans into concentration camps.

World War II, the government began to run out of excuses to infringe
on the most agreed upon fundamental rights expressed in the Constitution's
first ten amendments. The Korean War and the Vietnam War each had
its own version of conscription and its own government surveillance
abuses. The Cold War allowed for a hybrid peacetime/wartime regime
of civil liberties violations. But it was the War on Drugs that
drove the last nails into the coffin in which the tattered Bill
of Rights now lies.

a couple of decades the War on Drugs managed to make a mockery of
nearly the entire Constitution. The War on Drugs has seen the emergence
of mandatory minimum sentences, in violation of the Eighth Amendment.
It has created drug courts, in lieu of anything acceptable under
the Sixth Amendment. It has led to drug testing in schools, in disregard
of the Fifth Amendment. It has led to no-knock warrants and to increasingly
lowered standards of probable cause for search and seizure, in open
contempt of the Fourth Amendment. It has been used to justify stronger
laws against guns, in violation of the Second Amendment, and restrictions
on commercial speech, in violation of the First.

course, the War on Drugs wouldn't be possible if the federal government
obeyed the Tenth Amendment, and if the states respected the unenumerated
rights of Americans under the Ninth.

until September 11, 2001, it looked as though the War on Drugs would
probably be the U.S. government's best hope for creating a police
state, without having a foreign adversary as frightening as the
Nazis or the Communists to justify its actions. But the War on Terrorism
has proved an even better excuse for infringing civil rights, as
it is even more taboo to be soft on terrorists than on drug users.

the last two years, the Bush Administration has given us military
tribunals, secret searches, and the Patriot Act. Many people are
outraged, even though the precedent was set a long time ago. The
dangers to American liberty are definitely more out in the open
than they have been in years, but they have always been there.

precedent for these disturbing violations of the Bill of Rights,
if we want to limit our analysis to the last century, came when
politicians convinced enough Americans that strict adherence to
the Constitution would prevent the government from giving the people
what they wanted and believed they needed in the form of economic
regulations, welfare programs, and central banking. "We can't
follow the archaic Constitution," many Progressives and modern
liberals shouted as they called for national programs in education,
healthcare, and charity.

just as the Progressive Era economic interventions preceded the
wartime civil liberties intrusions of World War I, and the economic
interventions of the New Deal preceded the same kinds of violations
during World War II, so the leeway federal politicians have enjoyed
in recent years in regard to economic regulation has further desensitized
Americans to the importance of having the government follow the

now to many of the people who used to complain that the Constitution
got in the way of their pet socialist projects, the Constitution
looks pretty good.

Now we can really understand Constitutional precedents. When the
Federal government takes on functions not spelled out in the Constitution,
in violation of the Tenth Amendment, it is only a matter of time
before it will damage the unenumerated rights of the people, in
violation of the Ninth Amendment. When the government can violate
the unenumerated Ninth Amendment rights of the people, it is only
a matter of time before it will trample the enumerated rights of
the people, as explicitly spelled out in the rest of the Bill of
Rights. After the government has gotten away with restricting speech
and firearms when it has a "compelling interest," it will
begin finding ways to search and seize property in violation of
the Fourth Amendment. After each protection of the Bill of Rights
has been eroded around the edges long enough, the government will
pursue degradation of the most basic of statutory rights, such as
the right to a jury trial – until the Bill of Rights is completely

are coming dangerously close to having no rights left at all, except
for the few the government spares us. We must turn this around soon,
and with the right destination in mind, or we will wake up one day
in a dictatorship.

can't happen here? It has happened here before. The man responsible
is still admired, even by many of those who call him a dictator,
and his picture can be seen anytime you buy something and get pennies
or five-dollar bills in change.

makes you wonder which denomination of currency will feature the
likeness of George W. Bush. Or John Ashcroft.

2, 2004

Gregory [send him mail]
is a writer and musician who lives in Berkeley, California. He earned
his bachelor's degree in history at UC Berkeley, where he was president
of the Cal Libertarians. He has written for, Rational
Review, the Libertarian Enterprise, and The Independent
Institute. See
his webpage for more
articles and personal information.


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