Constitution Day: Is the Constitution on life support?

For all intents and purposes, the Constitution is on life support and has been for some time now.

Those responsible for its demise are none other than the schools, which have failed to educate students about its principles; the courts, which have failed to uphold the rights enshrined within it; the politicians, who long ago sold out to corporations and special interests; and “we the people” who, in our ignorance and greed, have valued materialism over freedom.

We can pretend that the Constitution, which was written to hold the government accountable, is still our governing document. However, the reality we must come to terms with is that in the America we live in today, the government does whatever it wants. And the few of us who actively fight to preserve the rights enshrined in the Constitution (a group whose numbers continue to shrink) do so knowing that in the long run, we may be fighting a losing battle.

A quick review of the Bill of Rights shows how dismal things have become.

The First Amendment is supposed to protect the freedom to speak your mind and protest in peace without being bridled by the government. It also protects the freedom of the media, as well as the right to worship and pray without interference. In other words, Americans cannot be silenced by the government. Yet despite the clear protections found in the First Amendment, the freedoms described therein are under constant assault. Students are often stripped of their rights for such things as wearing a t-shirt that school officials find offensive. Incredibly, one California school official actually forbade students from wearing t-shirts with the American flag on them. Likewise, local governments and police often oppose citizens who express unpopular views in public. Peace activists who speak out against the government are being arrested and subjected to investigation by the FBI, while members of the press are threatened with jail time for reporting on possible government wrongdoing and refusing to reveal their sources.

The Second Amendment was intended to guarantee “the right of the people to keep and bear arms.” Yet while gun ownership has been recognized by the U.S. Supreme Court as an individual citizen right, Americans remain powerless to defend themselves against the government. In fact, in 2011, the Indiana Supreme Court broadly ruled that citizens don’t have the right to resist police officers who enter their homes illegally, which is the law in most states. And consider how many individuals have been killed simply for instinctively reaching for any kind of weapon, loaded or not, during the initial trauma of a SWAT team raid. Thus, as local police departments become more and more like paramilitary units, dressed in black riot gear and armed with assault weapons, the ability of the citizenry to protect itself from the government will become more and more difficult.

The Third Amendment reinforces the principle that civilian-elected officials are superior to the military by prohibiting the military from entering any citizen’s home without “the consent of the owner.” Today’s military may not as of yet technically threaten private property. However, with the police increasingly posing as military forces—complete with weapons, uniforms, assault vehicles, etc.—a good case could be made for the fact that SWAT team raids, which break down the barrier between public and private property, have done away with this critical safeguard. Indeed, the increasing militarization of the police, the use of sophisticated weaponry against Americans and the government’s increasing tendency to employ military personnel domestically have eviscerated the Third Amendment. At all levels (federal, local and state), through the use of fusion centers, information sharing with the national intelligence agencies, and monetary grants for weapons and training from the Pentagon, the local police and the military have for all intents and purposes joined forces. In the process, the police have become a “standing” or permanent army, one composed of full-time professional soldiers who do not disband, which is exactly what the Founders feared.

The Fourth Amendment prohibits the government from searching your home without a warrant approved by a judge. Unfortunately, the Fourth Amendment has been all but eviscerated by the passage of the USAPATRIOT Act, which opened the door to unwarranted electronic intrusions by government agents into your most personal and private transactions, including phone, mail, computer and medical records. Added to the Patriot Act’s lengthy list of abuses, one recent court decision sounded the death knell for our Fourth Amendment rights. Indeed, in its 2011 decision, the U.S. Supreme Court gave police carte blanche authority to break into homes or apartments without a warrant. Specifically, the court ruled that if a SWAT team arrives at the wrong address but for whatever reason suspects the citizen inside the home may possess drugs, these armed warriors can break down the door and invade your home—all without possessing a warrant.

The Fifth Amendment is supposed to ensure that you are innocent until proven guilty, and government authorities cannot deprive you of your life, your liberty or your property without following strict legal codes of conduct. Unfortunately, those protections—especially as they apply to Muslim-Americans—have been largely extinguished in the wake of 9/11. For example, beginning in 2002, the government has detained nearly 13,000 Arab, Muslim and South Asian men under cover of a special registration program spearheaded by Immigration Services. Detainees were held without bail for an average of three months and waited up to three weeks to contact an attorney.

The Sixth Amendment was intended to not only ensure a “speedy and public trial,” but it was supposed to prevent the government from keeping someone in jail for unspecified offenses. That too has been a casualty of the war on terror. For example, the Presidential Military Order of November 13, 2001, gave the president the power to detain non-citizens suspected of connections to terrorists or terrorism as “enemy combatants.” They can be held indefinitely without charge, without a court hearing and without access to a lawyer. Not only have non-citizens been held in such a manner but so, too, were American citizens who were captured on American soil, rather than on a foreign battlefield. For example, Jose Padilla, an American citizen arrested on American soil, was labeled an “enemy combatant,” denied access to an attorney and held without charge in a military brig for more than three years.

The Seventh Amendment guarantees citizens the right to a jury trial. However, when the populace has no idea of what’s in the Constitution that inevitably translates to an ignorant jury incapable of distinguishing justice and the law from their own preconceived notions and fears. As Mark Twain famously observed, “The jury system puts a ban upon intelligence and honesty, and a premium upon ignorance, stupidity and perjury. It is a shame that we must continue to use a worthless system because it was good a thousand years ago . . . I desire to tamper with the jury law. I wish to so alter it as to put a premium on intelligence and character, and close the jury box against idiots, blacklegs, and people who do not read newspapers.”

The Eighth Amendment is similar to the Sixth in that it is supposed to protect the rights of the accused and forbid the use of cruel and unusual punishment. However, by turning a blind eye to the abuses at Guantanamo Bay and Abu Ghraib and sanctioning torture deliberately and unapologetically, including the use of waterboarding as a benign form of legalized torture, the Bush administration not only violated U.S. laws and virtually every international treaty against torture but raised the bar on what constitutes cruel and unusual punishment. Many of these same practices are still in place under the Obama administration. And the Supreme Court’s determination that what constitutes “cruel and unusual” should be dependent on the “evolving standards of decency that mark the progress of a maturing society” leaves us with little protection in the face of a society lacking in morals altogether. The continued reliance on the death penalty, which has been shown to be flawed in its application and execution, is a perfect example of this.

The Ninth Amendment provides that other rights not enumerated in the Constitution are nonetheless retained by the people. Popular sovereignty—the belief that the power to govern flows upward from the people rather than downward from the rulers—is clearly evident in this amendment. However, it has since been turned on its head by a centralized federal government that sees itself as supreme and which continues to pass more and more laws that restrict our freedoms under the pretext that it has an “important government interest” in doing so. Thus, once the government began violating the non-enumerated rights granted in the Ninth Amendment, it was only a matter of time before it began to trample the enumerated rights of the people, as explicitly spelled out in the rest of the Bill of Rights.

As for the Tenth Amendment’s reminder that the people and the states retain every authority that is not otherwise mentioned in the Constitution, that assurance of a system of government in which power is divided among local, state and national entities has long since been rendered moot by the centralized Washington, DC power elite—the president, Congress and the courts. Indeed, the federal governmental bureaucracy has grown so large that it has made local and state legislatures relatively irrelevant. Through its many agencies, the federal government has stripped states of the right to regulate countless issues that were originally governed at the local level.

Finally, there is the writ of habeas corpus, found in Article I, Section IX of the U.S. Constitution, which was intended to guard against arbitrary imprisonment, requiring that the government either charge a person or let him go free. This too has been seriously undermined in recent years, starting with the passage of the Antiterrorism and Effective Death Penalty Act in 1996, which imposed a one-year statute of limitations on bringing the writ (meaning that those imprisoned were unable to apply for release after being imprisoned for over a year) and removed actual innocence—surely the whole point of habeas corpus—as a grounds for challenging one’s incarceration.

It’s a depressing state of affairs. We have certainly come a long way from President John F. Kennedy’s vision of a “nation of Minutemen, citizens who are not only prepared to take arms, but citizens who regard the preservation of freedom as the basic purpose of their daily life and who are willing to consciously work and sacrifice for that freedom.”

In fact, when all the glibly patriotic gestures and jargon are stripped away, I’m not even sure Americans really want freedom. What they really want is to be left in peace with their shopping malls, flat-screen TVs, cell phones and mindless entertainment. After all, how many Americans during the course of a day—even when they see fellow citizens under attack—ever think about their rights? If they did, surely there would be more resistance.

Thus, what little hope remains rests with what Pulitzer Prize-winning war correspondent Chris Hedges refers to as the modern rebel, “someone who is perpetually alienated from power, someone who is different from a revolutionary in the sense that you are always alienated from centers of power. This is the Julien Benda vision of the world, where you have two sets of principles—justice and truth, and privilege and power—and the closer you get to privilege and power, the more you compromise justice and truth. I think that in order to maintain a democratic system you need large movements in society committed to issues of justice and truth. To put pressure on the power elite, to make sure that those issues are honored by institutions and by people who hold positions of power.”

About John W. Whitehead: Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His new book “The Freedom Wars” (TRI Press) is available online at www.amazon.com. Whitehead can be contacted at johnw@rutherford.org. Information about The Rutherford Institute is available at www.rutherford.org.