Jacob G. Hornberger – February 8, 2023
The biggest mistake America has ever made since the inception of our country was the conversion of the federal government from a limited-government republic to a national-security state. It is the reason that all of us have been born and raised under what can only be called a national-security police state.
Throughout history, governments have been vested with inherent powers to do what officials felt was in the best interests of the people. Our American ancestors rejected that concept insofar as the federal government was concerned. The Constitution created one of the most unusual governmental structures ever — one in which the federal government would not have the traditional powers that were inherent to government. Instead, the federal government’s powers were limited to those few powers that were enumerated in the Constitution. If a power wasn’t listed, it simply could not be exercised.
This radically different governmental structure shocked the world. People couldn’t believe that a citizenry of a country was actually dictating to their government what it could and couldn’t do. Everyone was accustomed to the opposite — where government dictates to the citizenry what they can and cannot do.
A limited-government republic
A limited-government republic is what Americans wanted. They didn’t trust the federal government. Unlike so many Americans today, our American ancestors never believed that the biggest threat to their freedom and well-being lay with foreign regimes or foreign groups. Instead, Americans were convinced that the greatest threat to their freedom and well-being lay with their very own federal government. That’s why they wanted it to have so few powers — so that it would lack the ability to do bad things to them.
Thus, for more than a century, the United States had only a small, basic military force — one that was sufficiently large to protect settlers from attacks by Native Americans and to serve as a mobilizing force in the event the United States was ever invaded. Our American ancestors fiercely opposed a large, permanent military-intelligence establishment — what they called “standing armies” — because they believed that a standing army would ultimately destroy their freedom and their well-being. They instead believed in the concept of “citizen soldiers” — well-armed and self-trained citizens who would be willing to come to the defense of their country if it were ever invaded by a foreign power.
Prior to the Constitutional Convention, Americans had been operating under the Articles of Confederation, under which the federal government’s powers were so few and weak that it didn’t even have the power to tax. Imagine: for more than a decade, the federal government operated without the ability to forcibly extract money from people.
The purpose of the Constitutional Convention was simply to modify the Articles of Confederation. Thus, imagine the surprise of our ancestors when they learned that the Convention came out instead with a proposal for a different governmental structure — a limited-government republic — one that gave the federal government more power, including the power to tax.
Needless to say, Americans were extremely leery. But they finally decided to go along with the deal under the assurance that the federal government’s powers were to be limited to those few powers enumerated in the Constitution.
The Bill of Rights
But there was one condition that Americans imposed in return for accepting the new Constitution. They demanded the enactment of a Bill of Rights immediately after ratification of the Constitution. The Bill of Rights reflected the conviction of the American people that the federal government was an enormous threat to their freedom and well-being. With the Bill of Rights, Americans wanted to drive the point home — that federal officials were absolutely prohibited from infringing on people’s fundamental, natural, God-given rights.
The Bill of Rights should actually have been called the Bill of Prohibitions. That’s because it doesn’t give people rights at all. As the Declaration of Independence observes, people’s rights preexist government. It is the duty of government to protect, not destroy, such rights.
Thus, the First and Second Amendments protected from federal assault such rights as freedom of speech, freedom of religion, freedom of assembly, and the right to keep and bear arms. The Ninth Amendment made it clear that people have more rights than those enumerated in the Bill of Rights.
An unusual society
Because its powers were so few, throughout the 19th century the federal government didn’t have much to do. The result was the most unusual society in history. Imagine:
- No income taxation, income-tax returns, or IRS. People were free to keep everything they earned, and there was nothing the federal government to do about it.
- No Social Security, Medicare, education grants, public schooling, farm subsidies, or other socialist programs.
- No public (i.e., government) schooling systems.
- No drug laws.
- No immigration controls.
- No Federal Reserve or fiat (i.e., paper) money. The official money was gold and silver coins.
- Few economic regulations. No minimum-wage laws. No occupational-licensure laws.
- No sanctions or embargoes.
- No coups and no foreign wars in Europe, Asia, or Africa.
- No Pentagon, military-industrial complex, “defense” industry, CIA, NSA, or FBI.
Never in history had such a society existed. We know that it wasn’t a perfect libertarian paradise, especially given slavery and lack of women’s rights, but our American ancestors showed what was possible to achieve with respect to freedom and genuinely limited government.
The Fourth, Fifth, Sixth, and Eighth Amendments
Within the Bill of Rights was a fascinating grouping of four amendments: the Fourth, Fifth, Sixth, and Eighth Amendments. Our ancestors believed that at some point, federal officials would want to kill people, incarcerate them, or take away their property. Thus, those four amendments address what must happen before those things can occur.
For example, the Fifth Amendment prohibits the federal government from killing people without “due process of law.” Due process was a term that stretched all the way back to the Magna Carta, when the barons of England required King John, at the point of a sword, to acknowledge that his powers over them were not omnipotent.
Over the centuries, due process had come to encompass two requirements: (1) a person would have to be formally notified of the charges against him before the government could kill him or incarcerate him, and (2) the person would have to be accorded a trial, where the government would be required to prove his guilt beyond a reasonable doubt. If those two requisites weren’t met, the federal government could not kill or incarcerate a person.
There is something important to note about the due process clause: Our ancestors did not limit it to American citizens. The protections of due process also extended to foreigners.
The Eighth Amendment gave a targeted person the option of choosing a jury trial, with the jury consisting of regular citizens, rather than having a judge decide the guilt or innocence of the accused. Our American ancestors didn’t trust judges to make such a determination.
Our ancestors were convinced that federal officials would end up keeping people incarcerated for indeterminate periods of time. To prevent that from happening, the Sixth Amendment guaranteed people the right to a speedy trial.
Our ancestors also believed that the federal government would inevitably attract people who relished inflicting cruel and unusual punishments on people. Thus, the Eighth Amendment prohibits the federal government from doing that.
Among the unenumerated rights mentioned in the Ninth Amendment was privacy — that is, the right to be left alone by the government — the right not to be spied on and monitored by government officials.
After the Constitutional Convention was finished, people asked Benjamin Franklin, “What do we have, a republic or a monarchy?” Franklin replied, “A republic, if you can keep it.’
Americans were able to keep their limited-government republic in existence for some 150 years. But it came to an end with the decision to convert the federal government to a national-security state after World War II, when the national-security police state under which we live today came into existence.
A national-security police state
What is a police state? It is a government that wields omnipotent powers. To put things into context, North Korea is a national-security state. So is China. And Russia, Egypt, and Saudi Arabia. And post–World War II United States.
Usually in a national-security state, the entire government is controlled and operated by the military-intelligence establishment. China and Egypt are good examples. An interesting aspect of the U.S. national-security state, however, is that the three original branches of the federal government — the executive, legislative, and judicial— continued operating under the limited-powers concept of the Constitution. Therefore, after the conversion, there was still a veneer of a limited-government republic, which gave comfort to people who didn’t want to acknowledge the significance of the conversion.
It was the new national-security branch of the government that was vested with omnipotent, totalitarian powers. At the risk of belaboring the obvious, if any part of a government wields omnipotent powers, the entire government wields omnipotent powers. In such a case, the other three branches essentially become supportive elements of the branch that is wielding the omnipotent powers. In fact, as Tufts University law professor Michael Glennon details in his excellent and insightful book National Security and Double Government, over time, the national-security branch of the government took control over the federal government, especially with respect to foreign policy, while permitting the original three branches to maintain the veneer of being in charge.
In regimes like China and Egypt, the military-intelligence establishment is one great big monolithic enterprise. In the United States, the national-security establishment consists of the Pentagon, the military-industrial complex, the vast “defense” industry, the CIA, the NSA, and, to a certain extent, the FBI. It is these agencies that maintain the national-security police state under which modern-day Americans live.
Consider, for example, the power of assassination. From the time the CIA was called into existence, it wielded the power of assassination. At first it was only the CIA that engaged in assassination, but later, the Pentagon began exercising the power as well.
At the risk of belaboring the obvious, assassination does not involve due process of law. That is, before a person is assassinated, he is not provided formal notice of charges and is not provided with a trial. He is simply killed. The CIA’s and Pentagon’s power to assassinate people clearly nullified the Fifth Amendment’s due process clause, which, as I stated above, expressly provides that no person shall be deprived of life without due process of law.
Assassination is the ultimate power that any totalitarian regime can wield. In the United States, this power is omnipotent. The Supreme Court has made it clear that it will not interfere with the national-security establishment’s power of assassination, no matter what the Fifth Amendment states. The court has held that it lacks the expertise to determine matters of national security, including assassination, and, therefore, it just defers to the expertise of the Pentagon and the CIA in such matters.
It is worth noting that the power of assassination extends not just to foreigners but also to Americans. In fact, the national-security establishment has actually assassinated both foreigners and Americans. It is also worth noting that the power to assassinate people applies not just to foreign lands but also to the domestic United States. That’s because the “global” war on terror, which is a popular justification for assassinating people, obviously encompasses the domestic United States.
Consider torture, another police-state power wielded by the national-security establishment. It would be difficult to find a better example of a “cruel and unusual” punishment than torture. Thus, the provision of the Eighth Amendment that prohibits such punishments has clearly been nullified.
When it comes to torture, the federal judiciary has, once again, taken a passive, deferential, and even supportive role. It is important, again, to point out that the power to torture people extends not just to foreigners but also Americans. That was what the Jose Padilla case was all about. He was an American citizen, and the federal judiciary upheld the Pentagon’s power to torture him.
The Pentagon and the CIA also wield the power to keep people incarcerated for as long as they want without according them a trial, in contravention of the speedy-trial provision of the Eighth Amendment. In fact, there are people who have been incarcerated at the Pentagon’s and CIA’s prison and torture center at Guantanamo Bay for more than 20 years without a trial. Officials have long promised them a trial, but it never comes. And even if it did come, it would be in the form of a kangaroo military tribunal rather than a jury trial as provided in the Sixth Amendment.
The conversion of the federal government to a national-security state also brought into existence the power to engage in mass secret surveillance of the American people, thereby nullifying their natural, God-given right of privacy, one of the unenumerated rights encompassed by the Ninth Amendment. That’s what the Edward Snowden revelations were all about. Snowden revealed that federal officials were engaged in secret mass secret surveillance of the American people.
Even though federal officials acknowledged that Snowden had told the truth and that their surveillance contravened the principles of a free society, if anyone thinks they have stopped monitoring people’s Internet activity, he is hopelessly innocent and naive. After all, why would they stop? No official was indicted, lost his job, or was even reprimanded for that surveillance. The only person who was punished was Snowden, the person who revealed the wrongdoing to the American people. They went after him with a vengeance. In fact, my hunch is that the only reason they haven’t assassinated him is because they haven’t figured out how to get the assassin out of Russia, where Snowden is consigned to living to avoid a U.S. criminal prosecution.
Snowden’s case is similar to that of Julian Assange, the Australian citizen who disclosed dark-side secrets of the national-security establishment to the world through his organization WikiLeaks. As with Snowden, they have pursued Assange with a vengeance, vowing to extradite him to the United States to stand trial under a 1917 World War I law called the “Espionage Act.” Like Snowden, Assange’s only “crime” was to disclose the truth about the national-security state’s illegal and improper actions.
Sending a message
Both the Snowden and Assange cases reveal an implicit pact that was entered into between the American people and the national-security establishment when the conversion to a national-security state took place. The pact was that the national-security establishment would use its omnipotent powers to do unsavory things but that it would keep such things secret from the American people so that their consciences would not be troubled over what their government was doing in their name.
In the minds of U.S. officials, Snowden and Assange interfered with that pact by bringing some of those unsavory actions to the attention of the American people, which indeed did cause consternation among many Americans. Thus, Assange and Snowden had to be punished for having interfered with the pact. Perhaps more important, U.S. officials have used them to send a message to anyone else who contemplates disclosing the national-security establishment’s dark-side secrets to the American people: “Do that and prepare to have your life destroyed, as we have done with Snowden and Assange.”
Reprinted from The Future of Freedom Foundation (fff.org). Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and 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. View these interviews at LewRockwell.com and from Full Context.