Are Current Bill of Rights Erosions Unprecedented?

Critics 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.

More 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.

It 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 then.

During 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 18^th 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.

In 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.

The 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.

Just 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.

After 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.

In 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.

Of 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.

Up 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.

In 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.

The 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.

But 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 Constitution.

And 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 meaningless.

Americans 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.

It 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.

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

March 2, 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 has written for Antiwar.com, Rational Review, the Libertarian Enterprise, and The Independent Institute. See his webpage for more articles and personal information.

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