Jacob G. Hornberger – March 28, 2020
There was a good reason why our American ancestors failed to include an emergency exception in the Bill of Rights. It was because they knew that throughout history emergencies have been the time-honored way by which people lose their liberty.
Thus, the First Amendment does not say:
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, except in cases of emergency.
The Second Amendment does not state:
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, except in cases of emergency.
The Fifth Amendment does not state:
No person shall … be deprived of life, liberty, or property, without due process of law, except in cases of emergency.
The Sixth Amendment does not state:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, except in cases of emergencies.
The Constitution does not state:
The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it, except in cases of emergencies.
Why didn’t the Framers and our ancestors include an emergency exception in the Constitution and the Bill of Rights?
Because they knew that such an exception would nullify all the restrictions in the Bill of Rights and the limitations on power enumerated in the Constitution.
That is, they knew that if they included an emergency exception, then they might as well have just called into existence a federal government with the omnipotent, totalitarian power to destroy their rights and liberties.
The Framers and our ancestors understood that emergencies and crises have been the time-honored way throughout history by which people have lost their liberties and their well-being at the hands of their own government.
After all, ask yourself: Why did they deem it necessary to expressly prohibit the federal government from doing all those bad things that are listed in the Bill of Rights? It was because they knew that the propensity of people who are attracted to government power is to thirst and ache to do such things and to look for opportunities to do them.
By the same token, people who thirst and ache for power know that a free people don’t like giving up their rights and liberties.
But then along come emergencies and all bets are off. Now people become greatly afraid, which presents those who thirst and ache for power with the opportunity to strike by offering the fear-filled people a bargain: “Trade away your freedom and I will keep you safe. It will only be temporary. As soon as the emergency is over, I will quickly restore your rights and liberties to you without hesitation.”
A long time ago in a faraway land, a group of chickens on a farm were threatened with a severe emergency. A wolf was periodically attacking and eating them. The chickens approached a neighborhood fox and explained the emergency. The fox assured the chickens that he could keep them safe. All they had to do was enter into a cage, after which [he] would close and lock the door. He would then dutifully stand watch until the emergency was over, at which point he promised that he would open the door and let the chickens go free. The chickens accepted the deal.
Fortunately, the Framers and our ancestors knew the outcome of that experience, which is why they didn’t include an emergency exception in the Constitution and the Bill of Rights.
Originally published at FFF.org. Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch.