Original copies of the Constitution of the United States and the Bill of Rights remain on display at the National Archives in our nation’s capital. Many Americans consider that the system of government established by those documents is as strong as the pieces of parchment themselves. Quite the contrary. The system of government bequeathed to us more than 230 years ago – one of defined and limited powers designed above all else to protect individual liberty — is far more fragile than most citizens realize.
At no time is the fragility of guaranteed individual liberty more at risk than in times of “emergency;” including, as we face today, one posed not by outside human forces, but by nature. Many in our country clamor for the federal government to control virtually every aspect of dealing with the COVID-19 virus, including use of the military and virtual suspension of civil liberties (as some cities and states are already doing).
If the system of limiting government power and maximizing individual liberty as delineated in the Constitution is to continue in any meaningful degree, we need to remember that our Founders and their generation faced challenges far beyond those we face today. They knew the country they were establishing would face serious threats, including military threats from beyond our shores. They knew as well that Americans would be challenged by Mother Nature, whether by natural forces or by disease.
Yet knowing all that, the system of government they created was one of deliberately limited and defined powers and premised on fundamental pre-existing individual liberties. Our Founders clearly understood that individual liberty protected by the limitations on government power incorporated in the Constitution, could not survive if temporal challenges were permitted to justify circumventing those very restrictions.
In the intervening decades, of course, many U.S. presidents, including Abraham Lincoln, Woodrow Wilson and others, have ignored the profound and correct understanding of human nature reflected in the Constitution. Predictably, civil liberties suffered with little if any real or lasting “safety” gained in return.
Nineteen years ago, the United States faced a serious and very real challenge. Some of the measures undertaken by the federal government in response to the 9-11 attacks violated existing laws, including the Foreign Intelligence Surveillance Act (FISA). Other measures, imposed in accord with the hurriedly enacted USA PATRIOT Act, were clearly at odds with the Bill of Rights. But all such steps were justified by government officials at the time because they would “make us safe.”
Less than four years after the World Trade Centers were attacked, one of America’s oldest cities – New Orleans – was beset with a disaster not of terrorists’ making, but of nature’s wrath. Following Hurricane Katrina in 2005, officials in that city worked to disarm law-abiding citizens trying to protect their homes, families and businesses from looters and other criminals. In one of the most counter-productive government decisions in modern history, officials deliberately swept aside the Second Amendment’s guarantee of the right to arm one’s self in self-defense simply because the city faced an “emergency.”
The precedents set by those constitutionally ill-advised actions present troubling questions today for officials in our nation’s capital and in cities across the country. As I wrote in this publication just one week ago, troubling steps already have been taken that severely limit the civil liberties supposed to be protected by our Constitution as against infringement by federal, state and local governments.
Now, it appears the federal government is readying additional measures that would undercut one of our Founders’ deepest fears – use of the military for domestic law enforcement purposes.
Steps likely under consideration include further expanding exceptions to the Posse Comitatus Act (the law designed to prohibit use of the Armed Forces in domestic matters), and broadening the president’s power to deploy the military to quell an “insurrection” in circumstances having nothing to do with such a domestic uprising. Additionally, federal officials may impose other clever sleight-of-hand measures to undercut the “great writ” of habeas corpus to facilitate arresting and detaining individuals for the duration of the declared “emergency.”
Whether it is these contingencies, or others creatively contrived by lawyers in Washington, none would be in accord with the principles and mechanisms mandated in the Constitution. “National Emergency” Phase Two would be even more constitutionally troubling than Phase One.
