U.S. Constitution Day: Remembrance of Things Past?

Bob Bauman (September 16, 2011)

Two hundred and twenty years ago tomorrow, September 17, 1787, the Constitution of the United States of America was signed at Philadelphia by thirty-nine brave American patriots who changed the course of history – and came to be known as the Founding Fathers.

For the rest of the world the document they created has served as a unique example of a balanced system of republican self-government and America’s is now the world’s oldest federal constitution.

Sadly many Americans, especially the young, don’t know our nation’s history. Few realize the spirited national battle over adoption of the Constitution, as evidence in the historic Federalist Papers. The U.S. National Archives has created a teaching and discussion guide on the Constitution that you could profitably discuss with your children and grandchildren.

The Constitution was later ratified in each state by special conventions called in the name of “the people,” but only after a national debate on the need for an added Bill of Rights which was later adopted as the first Ten Amendments. That Bill of Rights affirms our basic rights as citizens and, in theory, limits government power over us, recognizing we the people as the source of all power.

But after this eleven score years do we still have those hard-won rights?

John Whitehead, author of Renewing the Patriot Act While America Sleeps, says, and I agree, that the so-called PATRIOT Act “…drove a stake through the heart of the Bill of Rights, violating at least six of the ten original Amendments.” He also offers the sadly true opinion that: “We can pretend that the Constitution, which was written to hold the government accountable, is still our governing document. However, the reality we must come to terms with is that in the America we live in today, the government does whatever it wants.”

He also offers a learned and disturbing assessment of where the major Amendments in the Bill of Rights stand today and you should review it. It makes for grim reading.

Perversion of Power

Notwithstanding the many deviations by activist judges who attempt to legislate from the bench, or presidents and federal legislators who have ignored it, the Constitution was intended to be the supreme law of the United States.

This amazing document provides the framework for the organization of the United States government based on the Union of States. It defines the three main branches of government: the legislative branch with a bicameral Congress, an executive branch led by the President, and a judicial branch headed by the Supreme Court.

In addition to the organization of these branches, the Constitution outlines the powers each branch may exercise. It also reserves numerous rights to the individual States and to the people, thereby establishing the federal system of government.

Mass Ignorance

Yet, if you have ever watched Jay Leno’s “Man in the Street” NBC-TV interviews, on questions regarding the Constitution and U.S. history, far too many Americans are ignorant of both.

In 2005, the U.S. Congress mandated that federally-funded educational institutions (and which aren’t these days?) must hold an educational program relating to the U.S. Constitution on or around September 17, the date of the 1787 signing. This offers a time to review and consider the legacy of the Founding Fathers, to understand better the Constitution, and to promote good citizenship in new generations of Americans.

Do your part by spreading the word in your family and among your friends.

Amendment IV

One of the most important protections for individuals in the Bill of Rights is contained in the Fourth Amendment which guards against unreasonable official searches, arrests, and seizures of property without a specific warrant. When police conduct a search, the Amendment requires them to “have probable” cause to believe that the search will uncover criminal activity or contraband. In other words, they must have legally sufficient reasons to justify a search.

The Fourth Amendment had a specific historic cause. It was designed by the Founders as a response to the controversial British “Writs of Assistance,” general search warrants which were a significant factor in causing the American Revolution. The King’s colonial agents used these writs to harass thousands of American colonists, especially for tax collection purposes, and this aroused bitter opposition and resentment.

John Adams, viewed these writs “as the spark in which originated the American Revolution.” Seeing the danger general warrants presented, the Virginia Declaration of Rights explicitly forbid the use of general warrants, as did the laws of many colonies, laws which the King George’s agents ignored.

To block such highhanded official conduct, the Fourth Amendment specifies that judicially sanctioned search and arrest warrants must be supported by probable cause and be limited in scope according to specific information supplied by a person (usually a law enforcement officer) who has sworn by it and is therefore accountable to the issuing court.

Up until the adoption of the PATRIOT Act in 2001, only a judge or official magistrate could issue such search warrants.

Bush, Obama Repeal Amendment IV

In June I told you how both Presidents Bush and Obama have ignored the 4^th Amendment, allowing search rules that do away the requirement of probable cause. This gives more than 12,000 FBI agents the ability to conduct physical surveillance, solicit informants and interview friends of people they are investigating without the approval of an FBI supervisor and certainly without the approval of a judge or the issuance of a search warrant.

Such unconstitutional “police state” techniques are called “fishing expeditions” because police cast a wide net without a specific suspect or crime as the object. This perverse investigative power allows FBI agents to pursue leads, not just on national security or foreign intelligence or terrorism as in the past, but allows them to go after even ordinary criminal cases.

Worse, the FBI is now using these powers to investigate those engaged in political dissent and in opposition to U.S. military actions, as in the case of Scott Crow, 44, of Austin, Texas, a self-described “anarchist” and veteran organizer of anti-corporate demonstrations about which I told you last May.

Think about what is happening in America. It could be you that is next subjected to this kind of unwarranted search.

Is This Constitutional?

Over more than two centuries, scores of U.S. Supreme Court cases have defined the constitutional rights and protections embodied in the Fourth Amendment.

The truth is that the government really doesn’t need these greatly expanded police powers. It already has authority to prosecute anyone it has probable cause to believe has committed, or is planning to commit, a crime.

It also has the authority to engage in surveillance of anyone whom it has probable cause to believe represents a foreign power or is a spy or terrorist, whether or not the person is suspected of any crime. All they need is probable cause and a valid warrant.

In my opinion, while destroying our liberty and privacy, these broad police powers have not increased measurably our national security or safety.

Return to the Rule of Law

Perhaps the U.S. Justice Department and the FBI should be forced to observe Constitution Day by reading that once sacred document and then following its clear dictates.

Or maybe the U.S. Congress should adopt a repeal of the Amendment and send it to the states, thus again allowing general writs of assistance to be issued by the latest King in the White House.

Sadly, I wonder how many Americans would even care. Do you care?

* In the aftermath of the 9/11 tragedy, in 2001 the PATRIOT Act became law with great haste. I think this law is the greatest single assault on personal and financial privacy in U.S. history. To learn about this far-reaching privacy invasion—and what you can do about countering the impact of the PATRIOT Act on you, click here.