Constitution Day: Is the Constitution on Life Support?

By John W. Whitehead

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, in America today, the government does whatever it wants. And the few of us who actively fight to preserve the rights enshrined in the Constitution 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. 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. 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.

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.

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 USA Patriot 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.

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.

The Sixth Amendment was intended not only to ensure a “speedy and public trial,” but to prevent the government from keeping someone in jail for unspecified offenses. That too has been a casualty of the war on terror. Non-citizens suspected of connections to terrorists or terrorism can now be labeled as “enemy combatants” and 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.

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.

The Eighth Amendment is supposed to protect the rights of the accused and forbid the use of cruel and unusual punishment. However, by sanctioning torture, 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.

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.

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.

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… 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.”

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. He can be contacted at johnw@rutherford.org. Information about the Institute is available at www.rutherford.org

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