Bush's War on the Bill of Rights
by Anthony Gregory
by Anthony Gregory
In my first LewRockwell.com article, "Are Current Bill of Rights Erosions Unprecedented?" I argued that the Bush administration's attacks on the Bill of Rights, egregious as they are, do indeed have their precedents in history. I never meant to defend Bush on this basis, but merely to give historical perspective. I stand by what I said. Bush, bad as he is, has not violated the Constitution any worse than Lyndon Johnson, Richard Nixon or Harry Truman, and not as badly as Woodrow Wilson, Franklin Roosevelt, or Abraham Lincoln.
Nevertheless, Bush did swear an oath to uphold the Constitution, and he has shirked that duty considerably. We should not hold him to the standard of past American tyrants, but rather to the finest of America's founding principles. It is useful, though perhaps depressing, to see the many ways in which president Bush has trashed the most noble and inspiring of all attempts to limit government through law, the Bill of Rights. Even as he advocates a new amendment to the Constitution to set national standards on marriage, the most important amendments already in place have each fallen prey to the ravages of his government.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
George W. Bush has shown an outright hostility to freedom of speech. In the name of combating "indecency," the FCC under Bush has raised its punitive fines to outrageous new levels, wasted money on an "investigation" of Janet Jackson's breast, and pressured Clear Channel to drop the Howard Stern Show. Bush has applied and maintained draconian restrictions on the press in Iraq, even forbidding the photography of flag-draped caskets returning home.
Attacking the fundamental right of free political speech, he signed the horrendous Bipartisan Campaign Finance Reform bill, which severely restricts dissent. The law makes it a crime for non-profit advocacy groups simply to mutter the name of a national candidate within the last sixty days before a general election. There is no excuse for Congress making a law abridging the freedom of speech when the First Amendment says, "Congress shall make no law… abridging the freedom of speech." Some thought that the Supreme Court would gut the law's worst provisions, which it did not. If Congress relied on another branch of the government to intervene and protect the public from its excesses, it is guilty of a major dereliction of duty.
As a result of Bush's policies, the government has even attacked freedom of assembly, creating "free speech zones" and keeping war protesters away when Bush appears on camera. At the outset of the Iraq War, Oakland police injured several war protesters by assaulting them with wooden bullets and concussion grenades, even as they ran away. Some have argued that the protesters, interfering with war commerce, got what they deserved, but the "collateral damage" suffered by the dockworkers probably disrupted the flow of trade that day more than the protests.1
One could feasibly list examples of how Bush has compromised the right of Americans to "petition the government for a redress of grievances," but the single following statement from Bush to Bob Woodward captures the president's feelings about his responsibility to answer to the people:
"I'm the commander, see. I do not need to explain why I say things. That's the interesting thing about being the president. Maybe somebody needs to explain to me why they say something, but I don't feel like I owe anybody an explanation."
It's a wonder that Bush would want to deny others freedom in their speech when he so frequently demonstrates such inspiring eloquence in his own.
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
Many have long argued that Republicans value the Second Amendment more than Democrats. So far, Bush's policy has fallen in line with the Republican and NRA doctrine on gun control: the right to bear arms is an inalienable right, and instead of passing unconstitutional gun laws, the government should enforce more strictly the 20,000 unconstitutional laws already on the books. In effect, Republicans oppose government undermining the choices of Americans, but so long as government is in the business of doing so, its programs should be fully funded and carried out by Republicans with strict adherence to the letter of the law, resulting in punishments as severe as possible.
Ashcroft's Justice Department has indeed turned up the heat on enforcing unconstitutional gun laws, boasting: "Under the President's Project Safe Neighborhoods program, federal gun crime prosecutions have increased by 68 percent over the last three years. Last year, the Department set a new record of charging 23 percent more individuals for violating federal firearms laws." The Bush administration has asked for a $95 million increase in spending on gun control programs for 2005. He has also expressed willingness to renew the Assault Weapons Ban.
Moreover, although Bush signed the law passed by Congress that allowed airline pilots to carry guns on planes — one of the few security measures after 9/11 that might have actually prevented the terrorist attack — his administration initially refused to implement it. Bush acquiesced only after Congress and the Senate reconvened and voted, by a supermajority, to force Bush to put guns in the hands of pilots.
In spite of what Republicans in the NRA and Democrats in the Violence Policy Center might say, Bush has hassled gun owners more than any recent president, and has shown only contempt for any moderation in the War on the Second Amendment.
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.
The Third Amendment is always the toughest to discuss in its relevance to today. Just as we must recognize that the "well regulated militia" line in the Second Amendment referred to a citizen's militia when it was written in the late 18th century, we must consider the Third Amendment in proper historical context.
The American colonists had just fought a revolution against Britain, the world's superpower that had imposed its will on much of the planet's peoples. The Third Amendment was written in memory of the Quartering Act of 1765, which compelled American colonists not only to give up sovereignty within their own homes, but also to pay taxes to build housing for British soldiers. After winning the Revolution, the Founding Fathers wanted to prevent the new American government from coercing its people into providing for its imperial and colonial ambitions the way Britain had done.
As the U.S. government levies taxes on Americans — and even on Iraqis — to pay its soldiers fighting for the global quasi-Trotskyite democratic revolution that the War on Terrorism has become, Americans should judge for themselves if the Bush administration has disgraced the spirit of the Third Amendment. The manner in which the U.S. military treats the houses of Iraqis has hardly been a manner "prescribed by law." We can only hope that the U.S. government does not take the final steps in defying the letter, as well as the spirit, of the Third Amendment, by giving new meaning to "bringing the soldiers home."
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
This one is a no-brainer. The Patriot Act's "Sneak and Peak" provision allows the feds to come into your home, search your residence, and leave without telling you for up to six months. It has expanded the government's powers under the Federal Intelligence Surveillance Act to get warrants for wiretaps from special courts, not subject to the same oversight as typical courts. Another provision allowed the FBI to obtain library records from librarians, who had to keep their mouths shut about confrontations with officials. Within months of 9/11, law enforcers had visited nearly 10 percent of America's libraries "seeking September 11-related information about patron reading habits."2 The Justice Department has resurrected COINTELPRO, a surveillance program that subverted groups and incited violence between political dissidents in the Vietnam era. The administration's ultimate goal of "Total Information Awareness" flies in the face of any decent understanding of the Fourth Amendment.
Under Clinton, the Fourth Amendment was already in serious trouble due to the War on Drugs and other domestic surveillance programs. It has gotten indescribably worse since the 1990s, when Aschroft complained that Clinton wanted "to hand Big Brother the keys to unlock our e-mail diaries, open our ATM records, read our medical records, or translate our international communications."3 If today's Aschroft met his counterpart from the 1990s, he would probably say that his avatar's warnings against Clinton's policies were frightening "peace-loving people with phantoms of lost liberty" and that such anti-government paranoia only gives "ammunition to America's enemies and pause to America's friends."
The Bush administration has no intention to allow the anachronistic Fourth Amendment to disrupt the War on Terrorism. This is a war for freedom, after all, and we cannot let trivial liberties get in the way.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Shortly after September 11, the Immigration and Naturalization Service and Justice Department detained more than a thousand individuals, whom Bush labeled as "terrorists" even after the Justice Department admitted the detainees had no connection to terrorism.4 In addition, at least dozens of Americans were detained without due process of law because of a phony "material witness" status.5
The Patriot Act has greatly expanded federal asset forfeiture powers, which allow the government to confiscate property without even accusing its owners of a crime. Those who "smuggle" their own money out of the country may now see it seized. The administration has worked to extend the despotic power of eminent domain, which allows the government to seize property for such unconstitutional purposes as federal production of interstate electrical lines.
When the founders discussed "due process of law" they meant more than the arbitrary power of executive edict. The Fifth Amendment has fallen victim to numerous beatings over the years, but Bush and company rank among its all time worst enemies.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Perhaps James Madison meant to write at the end of this sentence, "unless the president considers the accused an ‘enemy combatant.'"
Guantanamo Bay is the clearest and most troubling example of accused criminals detained without any of the benefits of an impartial trial with the due process spelled out in the Sixth Amendment. They do not receive the rights of war prisoners, nor of criminal defendants, because they fall under the makeshift category of "enemy combatant." Of course, Bush does not "accuse" these prisoners of being "enemy combatants" — because then they would have the rights of the "accused." He simply asserts they are "enemy combatants," and that settles that.
The assertion that Guantanamo is constitutional because it is located outside America is ludicrous and unsettling. It is ludicrous because the U.S. has jurisdiction there, and if the government can violate your liberties by moving you outside the country, the Bill of Rights is meaningless. It's unsettling because it is an admission that the goings on in Guantanamo are even more oppressive than the run-of-the-mill Bill of Rights violations that Americans will tolerate at home.
Bush has violated the Sixth Amendment in other ways, but Guantanamo typifies his attitude toward its basic principles. The Founding Fathers would probably have an impossible time believing Bush's flagrant disrespect for the rights of the accused. Of course, the Founding Fathers would have probably been considered terrorists, and would likely find themselves detained as "enemy combatants" for all their un-American beliefs and subversive political activism.
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
The Seventh Amendment is often misunderstood. Written in the aftermath of the American Revolution, its purpose was not only to guarantee the rights of defendants in civil cases, but also the rights of plaintiffs — especially of plaintiffs suing government agents for violations of their rights. After seeing mock courts set up by King George III to protect his minions from any meaningful legal recourse, the colonists wanted to guarantee that Americans suing government officials would be guaranteed a trial by jury.
The Bush administration has been frightening in the way it has nullified lawsuits against its actions. The Justice Department simply laughed at attempts of the ACLU to get lists of detained suspects through lawsuits in early 2002.6 Ellen Mariani's lawsuit against the Bush administration, accusing it of foreknowledge of, and failure to act on, September 11, may seem to many like the material of a conspiracy theory, but we can be fairly sure that the question will never go to a jury. Quite recently, an ACLU legal challenge against the Patriot Act became news after being silenced for three weeks by the Patriot Act.
Perhaps the reason for the inability of Americans to successfully sue administration officials in a trial by jury is that none of these transgressions of which the government is accused is a controversy in which the value at issue exceeds twenty dollars.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
We have seen Martha Stewart sentenced to prison for claiming innocence of a victimless crime. We have seen Tommy Chong sentenced to jail time for manufacturing glassware into the politically incorrect shape of marijuana paraphernalia. We have seen Clear Channel fined by the FCC for about half a million dollars, all over Howard Stern's performing the same radio material he's done for years.
These are only some high profile cases of Americans suffering excessive punishments for victimless activities. One low-profile example, which should be widely known, is Mohammed Hussein, the first "criminal" ever convicted under the Patriot Act. He was called a terrorist by the government and media, he lost his money transmitting business, and he received an eighteen-month prison sentence. What did he do to deserve this? What was his crime under the Patriot Act? He incorrectly filled out an application for a state business license.7 Of course, conservatives still argue that the Patriot Act has not been abused.
For decades Americans have endured punishments that had no semblance of proportionality to their "crimes." Under the Bush administration, the Eighth Amendment has been circumvented as increasingly cruel punishments have become decreasingly unusual.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
When the Constitution and Bill of Rights were being considered for ratification, some Americans pointed out possible loose ends. The "Antifederalists" — who often preferred the term "Federalists," and resented their opponents for stealing the label — wanted to ensure that the federal government only exercise those powers mentioned in the Constitution and that it did not violate certain fundamental rights. The Antifederalists tended to favor the Bill of Rights, but they feared that the listing of specific rights would be used to rationalize violations of unlisted ones. The Ninth and Tenth Amendments were meant to hammer home the notion that the federal government was subservient to the people.
George W. Bush has no conception of the inalienable, unenumerated rights of the American people. He has flouted the personal, intimate right to self-medication by closing down medical marijuana facilities. He has affronted the right to peaceful trade by establishing protectionist steel tariffs and imposing sanctions on other countries, most recently Syria. His administration has abrogated the right to travel with his no-fly list, which uses the pretext of fighting terrorism to prevent political dissidents and those with names similar to those of suspects from flying. On September 11, 2001, the federal government even impeded the right to emigrate by forbidding anyone from leaving the country. His Patriot Act made it a crime to carry significant amounts of cash on a plane. While the Bush administration assaults the liberties specifically spelled out in the Bill of Rights, it also punishes those who wish to relieve their pain from cancer, improve their lives with commerce, or quietly leave the country with their savings — all unwritten, essential rights that James Madison and Thomas Jefferson would be appalled to see so routinely eviscerated in America.
As constitutional scholar Randy Barnett says, "The Ninth Amendment mandates that unenumerated rights be treated the same as those that are listed."8 Bush would probably agree wholeheartedly, as he trashes our enumerated and unenumerated rights equally.
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 Tenth Amendment concludes the Bill of Rights with a demand that the federal government be restricted to activities authorized in the Constitution. The constitutional powers of the president, Congress, and the Supreme Court are highlighted in Articles I, II and III of the main body of the Constitution, and anything outside of this delegated authority is not the proper jurisdiction of the national government. For years conservatives rightly complained that Democrats advanced all sorts of federal programs that had no constitutional basis.
Almost every government abuse I mention in this essay qualifies as a violation of the Tenth Amendment. In addition to these violations, Bush has sharply increased farm subsidies, signing a record $190 billion dollar farm bill, and severely distorting domestic and international markets. He signed into law the largest expansion of Medicare since its inception, looting present and future taxpayers of hundreds of billions and maybe more than a trillion dollars in one of most shameless giveaways to preferred voters and business interests in decades. Aside from giving prescription drugs away free he has unleashed plans to build national surveillance systems to monitor "prescription drug abuse."
Bush has increased federal funding for education, welfare, foreign aid, local law enforcement, and "faith-based" initiatives, and he has developed programs to encourage marriages and to provide relationship counseling. Since Bush took office, the U.S. budget's discretionary spending has increased about 28%. Through his "compassion conservatism," George W. Bush has perhaps done more to advance the American welfare state than any other president in American history.
There is not a single aspect of Americans' economic and personal lives that the modern federal government considers off limits. When it comes to providing the federal government with new powers and duties for which there exists no constitutional authority, President Bush ranks among the very few most ambitious presidents in American history.
The Bill of Rights — RIP?
The Bush administration has been utterly hostile to the entire Bill of Rights. I did not focus on it, but one can quickly realize that Bush has violated all the principles of the Bill of Rights in regard to the Iraq War alone. Iraqis have been censored, disarmed, occupied, searched, hassled, regulated by curfew, severely and arbitrarily beaten and punished, tortured, humiliated, and generally abused by a foreign government that respects no limits on its power and regards Iraqis as if they have no impermeable rights at all. This is not to say that Saddam respected anyone's rights, but it speaks to the lunacy of the U.S. government brutally instituting a constitution abroad when it has no regard for the constitutional safeguards against any of its own actions.
During wartime, the Bill of Rights and its corresponding liberties tend to suffer extraordinary abuse. Bush prides himself as a "war president," and so it should come as no surprise when he treats his foreign and domestic subjects accordingly.
Although, as I've said before, some previous presidents may have been as bad or even worse, we must still have a clear understanding and appreciation for how much George Bush and the present government are undermining the principles that made America so special. The first Ten Amendments of the Constitution provide a blueprint for an incredibly free society. Perhaps Bush, who has a phobia against reading anything aside from what his advisors give him, should break with personal custom for at least half an hour and read the Bill of Rights.
- Some strict constructionists might argue that the First Amendment applies only to Congress, and not the local police, but much of what local police now do is tied up inextricably with national policies, especially with the Patriot Act and the War on Terrorism and War on Drugs. Without Bush's policies, the Oakland cops would have not assaulted those protesters and dockworkers, which is the main point.
- James Bovard, Terrorism and Tyranny: Trampling Freedom, Justice, and Peace to Rid the World of Evil (New York: Palgrave Macmillan, 2003), p. 141.
- Ibid., p. 132.
- Ibid., p. 106.
- Ibid., p. 124.
- Ibid., 122.
- Ibid., pp. 88—89.
- Randy Barnett, Restoring the Lost Constitution: The Presumption of Liberty (Princeton University Press: 2004), p. 252.
May 14, 2004
Anthony 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 is an intern at the Independent Institute and has written for Rational Review, Strike the Root, the Libertarian Enterprise, and Antiwar.com. See his webpage for more articles and personal information.
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