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In Order to Establish Justice

Posted by Rick · March 19th, 2005 · No Comments

The words of the Constitution of the United States begin thusly,

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. U.S. Const. pmbl.

Recently, I’ve heard some people say the Constitution is all fine and dandy, but we live in different times. This is why, for example, few American citizens blink when they hear what the White House says regarding constitutional rights.

Constitutional Limits

[T]he White House and Justice Department have told the Supreme Court that there ought to be a “national security” exemption to the Sixth Amendment that would allow prosecutors in our federal courts to try and then execute criminal defendants without giving them a reasonable opportunity to use information from witnesses who might help their cause. — “Fair Trial For Terrorist?” (March 19, 2005) CBS News.

You see, the White House doesn’t think there should be a Constitution which limits the power of the Administration.

Maybe you agree with them. After all, this isn’t the first time it’s happened. Our leaders in the White House have often chafed under the restrictions of the Constitution. And the Bush Administration is in good company when it publicly rebels at the restrictions placed on it by the Constitution. President Thomas Jefferson himself chafed under the Constitution’s restrictions — and he helped write it!

Jefferson, as a couple of people in the United States still remember, was responsible for helping to draft the initial documents that resulted in the creation of the United States. But those who know something about American history — and those who read Part I and Part II of my series on Marbury v. Madison — realize that once he was President, he sometimes was not appreciative of the limitations that document placed on his presidential powers.

Jefferson did not participate directly in the writing of the Constitution of the United States. During the time of the Constitutional Convention, he was serving as the U.S. Ambassador to France. He did, however, maintain correspondence with his friend, James Madison, and agreed to support the Constitution and its strong new Federal government on one condition: they must add a “Bill of Rights.” (Peter Onuf, cons. ed., “Thomas Jefferson: 1801-1809: 3rd President of the United States” AmericanPresident.org. (last visited March 19, 2005).) As the foremost liberal of his day, he was naturally influential in the development of that Bill of Rights. In addition to insisting upon a Bill of Rights, “Jefferson was also instrumental in devising a major revision of the criminal code, although it was not enacted until 1796.” (“Thomas Jefferson” Ames Lab. (last visited March 19, 2005).) He also, of course, wrote the Declaration of Independence and had a hand in writing other Constitutions, most notably for Virginia.

Different Times

But noting this doesn’t really answer the argument I alluded to above, does it? That argument — such as it is — essentially goes like this:

Those were different times. Today, there are terrorists who wish to destroy us. To the extent that the Constitution stands in the way of the government protecting us, there can be no domestic tranquility. And what about our posterity? If we’re destroyed, there isn’t any!

Isn’t this true? Weren’t those “different times”? After all, that was over 200 years ago!

The answer, of course, is “Yes. Those were different times, indeed.”

Before the United States became the United States, the country was much smaller than it is today. Also, instead of a “United States,” there were “thirteen colonies.” Those colonies “belonged” to Great Britain. The people, however, came more-and-more to see themselves as “Americans.” Most of them had left Great Britain for a variety of reasons, including religious persecution, to come to the colonies. Increasingly, the British government — which was, after all, a long way off in those pre-Internet days — came to be seen as looking out more for its own interests than the interests of average American citizens. (Sound familiar?)

Things eventually got so bad that there was a war. A war! Right here on American soil! The British sent ships with soldiers who landed in America! This wasn’t a couple of airplanes flying into the World Trade Center. This was an all-out assault on America; the British came right into people’s houses, taking their food, guns and other property and sometimes killing them right in their own homes.

The newly-formed armies of the not-yet-born United States of America were so poor that instead of shoes, they sometimes marched through the winter snow wearing only rags tied around their feet. We didn’t have a Navy to combat the British and stop them from landing on American beaches.

It was bad enough that they had “foreign” soldiers landing on the beaches of New York and other areas of the East Coast of America. These guys were trying to destroy us! Thousands upon thousands of Americans were killed. More than 25,000 Americans died in the Revolutionary War and almost 8,500 were wounded. (“Numbers of Americans Killed/Wounded, by Action” (February 23, 2005) The American War Library (last visited March 19,2005).) At that time, there were only about 2,500,000 people living in the colonies, as compared to approximately 296,000,000 people living in the United States today. (“American Revolution,” MSN Encarta (last visited March 19, 2005); “U.S. POPClock Projection” U.S. Census Bureau (last visited March 19, 2005).)

As if that wasn’t bad enough, the Americans had to contend with the likes of Benedict Arnold. Imagine waking up tomorrow and reading in the headlines that Donald Rumsfeld was a member of Al Queda. That might give you an idea of what it was like for George Washington and the others when Arnold — an American hero, a key fighter in the Revolutionary War — was found to have conspired with the British starting in 1779!

So again we ask, “Where times different then?” Yes, they were. Back then, the very existence of the United States was seriously at risk. We very nearly lost not only our lives — and remember that we lost way more lives then than we are losing now and there were less of us — but we almost lost our entire existence as a country. Does anyone really believe that Al Queda can destroy or take over the entire United States of America?

The Constitution Today

And yet, here we are.

In 1789, when all of this had happened to Americans and while there were still people living who would have been glad to destroy them, our Founders wrote the Constitution of the United States, including with it a Bill of Rights. In that Bill of Rights, secret trials were forbidden. Every criminal — yes, CRIMINAL!!! — was given the right to a trial by jury, the right to assistance of counsel for his defense, the right to confront his witnesses in an open courtroom. These same criminals had the right not to incriminate themselves; no one could force them to confess. The Bill of Rights didn’t even allow courts to impose “excessive bail,” because this would have made it more difficult for people to get out of jail while their trial was still pending. And how easy was it to slip out of the country in the 1700s?

In 2005, when nothing as dangerous as all this threatens us, our own government wants “a ‘national security’ exemption to the Sixth Amendment that would allow prosecutors in our federal courts to try and then execute criminal defendants without giving them a reasonable opportunity to use information from witnesses who might help their cause.” Arrest, convict and then kill American citizens without giving them an opportunity to confront their accusers. The accusers get to stay secret and anonymous.

Notice this, by the way: It doesn’t say “terrorists”; it says “criminal defendants.” And this already has included United States citizens arrested on United States soil without any weapons or other apparent ability to hurt anyone.

We the People of the United States, in Order to keep a more perfect Union and maintain Justice, must not allow this to happen.

As even the conservative Cato Institute says:

That does not mean the Justice Department must set people free to unleash weapons of mass destruction. But it does mean, at a minimum, that Congress must get involved, exercising its responsibility to enact a new legal regimen for citizen-detainees in time of national emergency. That regimen must respect citizens’ rights under the Constitution, including the right to judicial review of executive branch decisions. Constitutional rights are not absolute. But they do establish a strong presumption of liberty, which can be overridden only if government demonstrates, first, that its restrictions are essential and, second, that the goals it seeks to accomplish cannot be accomplished in a less invasive manner. When the executive, legislative, and judicial branches agree on the framework, the potential for abuse is significantly diminished. When only the executive has acted, the foundation of a free society can too easily erode. Robert A. Levy, “Citizen Padilla: Dangerous Precedents” (July 1, 2002) Cato Institute.

Righteousness and Justice are said to be the foundation even of G-d’s throne. (Psalm 89:14 (NIV).)

How can anything less be true for a nation that stands for freedom?

Read Them Yourself

The founding documents of our nation are actually quite short and not all that difficult to read. The law “interpreting” them has become quite complex over the last 200-plus years as the Supreme Court of the United States has periodically agreed with the two other branches of government (Congress and the President) that they provide too much freedom to citizens. While this should piss us off, Americans have increasingly become ignorant — I don’t mean “stupid” — of what these documents really say. The result is that today, the Bush Administration has pushed through laws, such as the USA PATRIOT Act, which would never have been accepted by the early Americans who had just survived a bloody revolutionary war fought on their own land.

As I said, the documents themselves are short and easy to read.

  • Declaration of Independence — One-and-a-half to three pages, depending on font size, when printed; 1,333 words in only seven paragraphs, a mere 110 lines! (By comparison my article you’ve just read is 1,874 words; 38 paragraphs; 150 lines.)
  • Constitution of the United States — Slightly longer than the Declaration of Independence, it’s still just approximately 10 pages, depending on font size, when printed; 4,500 words, 116 paragraphs, 378 lines.
  • Bill of Rights: The First Ten Amendments to the ConstitutionOnly about two pages long! Most of the Amendments that make up the Bill of Rights are only one sentence long! You can easily read through these in just a few minutes. There are only 482 words, making up about 54 lines. Because some “paragraphs” are only a few words long, there is a total of 20 paragraphs the way I have it in my Microsoft Word document.

Before deciding whether you think what the government is doing is right or wrong, why not read the documents themselves? It (realio trulio) doesn’t take that much time.

Categories: Constitutional Issues

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