By John W. Whitehead and Nisha Whitehead
“We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.” — Abraham Lincoln
Those who gave us the Constitution and the Bill of Rights believed that the government exists at the behest of its citizens. It is there to protect, defend and even enhance our freedoms, not violate them.
Unfortunately, although the Bill of Rights was adopted as a means of protecting the people against government tyranny, in America today, the government does whatever it wants, freedom be damned.
In the 22 years since the USA Patriot Act—a massive 342-page wish list of expanded powers for the FBI and CIA—was rammed through Congress in the wake of the so-called 9/11 terror attacks, it has snowballed into the eradication of every vital safeguard against government overreach, corruption and abuse.
The Patriot Act drove a stake through the heart of the Bill of Rights, violating at least six of the ten original amendments—the First, Fourth, Fifth, Sixth, Seventh and Eighth Amendments—and possibly the Thirteenth and Fourteenth Amendments, as well.
The Patriot Act also redefined terrorism so broadly that many non-terrorist political activities such as protest marches, demonstrations and civil disobedience are now considered potential terrorist acts, thereby rendering anyone desiring to engage in protected First Amendment expressive activities as suspects of the surveillance state.
The Patriot Act justified broader domestic surveillance, the logic being that if government agents knew more about each American, they could distinguish the terrorists from law-abiding citizens—no doubt a reflexive impulse shared by small-town police and federal agents alike.
This, according to Washington Post reporter Robert O’Harrow, Jr., was a fantasy that “had been brewing in the law enforcement world for a long time.” And 9/11 provided the government with the perfect excuse for conducting far-reaching surveillance and collecting mountains of information on even the most law-abiding citizen.
Federal agents and police officers are now authorized to conduct covert black bag “sneak-and-peak” searches of homes and offices while you are away and confiscate your personal property without first notifying you of their intent or their presence.
The law also granted the FBI the right to come to your place of employment, demand your personal records and question your supervisors and fellow employees, all without notifying you; allowed the government access to your medical records, school records and practically every personal record about you; and allowed the government to secretly demand to see records of books or magazines you’ve checked out in any public library and Internet sites you’ve visited (at least 545 libraries received such demands in the first year following passage of the Patriot Act).
In the name of fighting terrorism, government officials are now permitted to monitor religious and political institutions with no suspicion of criminal wrongdoing; prosecute librarians or keepers of any other records if they tell anyone that the government has subpoenaed information related to a terror investigation; monitor conversations between attorneys and clients; search and seize Americans’ papers and effects without showing probable cause; and jail Americans indefinitely without a trial, among other things.
The federal government also made liberal use of its new powers, especially through the use (and abuse) of the nefarious national security letters, which allow the FBI to demand personal customer records from Internet Service Providers, financial institutions and credit companies at the mere say-so of the government agent in charge of a local FBI office and without prior court approval.
In fact, since 9/11, we’ve been spied on by surveillance cameras, eavesdropped on by government agents, had our belongings searched, our phones tapped, our mail opened, our email monitored, our opinions questioned, our purchases scrutinized (under the USA Patriot Act, banks are required to analyze your transactions for any patterns that raise suspicion and to see if you are connected to any objectionable people), and our activities watched.
We’re also being subjected to invasive patdowns and whole-body scans of our persons and seizures of our electronic devices in the nation’s airports. We can’t even purchase certain cold medicines at the pharmacy anymore without it being reported to the government and our names being placed on a watch list.
In this way, “we the people” continue to be terrorized, traumatized, and tricked into a semi-permanent state of compliance by a government that cares nothing for our lives or our liberties.
The bogeyman’s names and faces have changed over time (terrorism, the war on drugs, illegal immigration, a viral pandemic, and more to come), but the end result remains the same: in the so-called name of national security, the Constitution has been steadily chipped away at, undermined, eroded, whittled down, and generally discarded with the support of Congress, the White House, and the courts.
A recitation of the Bill of Rights—set against a backdrop of government surveillance, militarized police, SWAT team raids, asset forfeiture, eminent domain, overcriminalization, armed surveillance drones, whole body scanners, stop and frisk searches, vaccine mandates, lockdowns, and the like (all sanctioned by Congress, the White House, and the courts)—would understandably sound more like a eulogy to freedoms lost than an affirmation of rights we truly possess.
What we are left with today is but a shadow of the robust document adopted more than two centuries ago. Sadly, most of the damage has been inflicted upon the Bill of Rights.
Here is what it means to live under the Constitution, with the nation still suffering blowback from the permanent state of emergency brought about by 9/11 and COVID-19.
The First Amendment is supposed to protect the freedom to speak your mind, assemble and protest nonviolently 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. In other words, Americans should not be silenced by the government. To the founders, all of America was a free speech zone.
Despite the clear protections found in the First Amendment, the freedoms described therein are under constant assault. Increasingly, Americans are being persecuted for exercising their First Amendment rights and speaking out against government corruption. Activists are being arrested and charged for daring to film police officers engaged in harassment or abusive practices. Journalists are being prosecuted for reporting on whistleblowers. States are passing legislation to muzzle reporting on cruel and abusive corporate practices. Religious ministries are being fined for attempting to feed and house the homeless. Protesters are being tear-gassed, beaten, arrested and forced into “free speech zones.” And under the guise of “government speech,” the courts have reasoned that the government can discriminate freely against any First Amendment activity that takes place within a so-called government forum.
The Second Amendment was intended to guarantee “the right of the people to keep and bear arms.” Essentially, this amendment was intended to give the citizenry the means to resist tyrannical government. 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 red flag gun laws, militarized police, SWAT team raids, and government agencies armed to the teeth with military weapons better suited to the battlefield.
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.” With the police increasingly training like the military, acting like the military, and posing as military forces—complete with heavily armed SWAT teams, military weapons, assault vehicles, etc.—it is clear that we now have what the founders feared most—a standing army on American soil.
The Fourth Amendment prohibits government agents from conducting surveillance on you or touching you or encroaching on your private property unless they have evidence that you’re up to something criminal. In other words, the Fourth Amendment ensures privacy and bodily integrity. Unfortunately, the Fourth Amendment has suffered the greatest damage in recent years and has been all but eviscerated by an unwarranted expansion of governmental police powers that include strip searches and even anal and vaginal searches of citizens, surveillance (corporate and otherwise), and intrusions justified in the name of fighting terrorism, as well as the outsourcing of otherwise illegal activities to private contractors.
The Fifth Amendment and the Sixth Amendment work in tandem. These amendments supposedly ensure that you are innocent until proven guilty, and government authorities cannot deprive you of your life, your liberty or your property without the right to an attorney and a fair trial before a civilian judge. However, in the new suspect society in which we live, where surveillance is the norm, these fundamental principles have been upended. Certainly, if the government can arbitrarily freeze, seize or lay claim to your property (money, land or possessions) under government asset forfeiture schemes, you have no true rights.
The Seventh Amendment guarantees citizens the right to a jury trial. Yet when the populace has no idea of what’s in the Constitution—civic education has virtually disappeared from most school curriculums—that inevitably translates to an ignorant jury incapable of distinguishing justice and the law from their own preconceived notions and fears. However, as a growing number of citizens are coming to realize, the power of the jury to nullify the government’s actions—and thereby help balance the scales of justice—is not to be underestimated. Jury nullification reminds the government that “we the people” retain the power to ultimately determine what laws are just.
The Eighth Amendment is similar to the Sixth in that it is supposed to protect the rights of the accused and forbid the use of cruel and unusual punishment. However, the Supreme Court’s determination that what constitutes “cruel and unusual” should be dependent on the “evolving standards of decency that mark the progress of a maturing society” leaves us with little protection in the face of a society lacking in morals altogether.
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, if there is any sense to be made from this recitation of freedoms lost, it is simply this: our individual freedoms have been eviscerated so that the government’s powers could be expanded.
It was no idle happenstance that the Constitution, which was adopted 236 years ago on Sept. 17, 1787, opens with these three powerful words: “We the people.” As the Preamble proclaims:
We, the people of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this CONSTITUTION for the United States of America.
In other words, it’s our job to make the government play by the rules of the Constitution.
We are supposed to be the masters and they—the government and its agents—are the servants.
We the American people—the citizenry—are supposed to be the arbiters and ultimate guardians of America’s welfare, defense, liberty, laws and prosperity.
Still, it’s hard to be a good citizen if you don’t know anything about your rights or how the government is supposed to operate.
As the National Review rightly asks, “How can Americans possibly make intelligent and informed political choices if they don’t understand the fundamental structure of their government? American citizens have the right to self-government, but it seems that we increasingly lack the capacity for it.”
Americans are constitutionally illiterate.
Most citizens have little, if any, knowledge about their basic rights. And our educational system does a poor job of teaching the basic freedoms guaranteed in the Constitution and the Bill of Rights.
Teachers and school administrators do not fare much better. A study conducted by the Center for Survey Research and Analysis found that one educator in five was unable to name any of the freedoms in the First Amendment.
Government leaders and politicians are also ill-informed. Although they take an oath to uphold, support and defend the Constitution against “enemies foreign and domestic,” their lack of education about our fundamental rights often causes them to be enemies of the Bill of Rights.
So what’s the solution?
From the President on down, anyone taking public office should have a working knowledge of the Constitution and the Bill of Rights and should be held accountable for upholding their precepts. One way to ensure this would be to require government leaders to take a course on the Constitution and pass a thorough examination thereof before being allowed to take office.
Some critics are advocating that students pass the United States citizenship exam in order to graduate from high school. Others recommend that it must be a prerequisite for attending college. I’d go so far as to argue that students should have to pass the citizenship exam before graduating from grade school.
Here’s an idea to get educated and take a stand for freedom: anyone who signs up to become a member of The Rutherford Institute gets a wallet-sized Bill of Rights card and a Know Your Rights card. Use this card to teach your children the freedoms found in the Bill of Rights.
A healthy, representative government is hard work. It takes a citizenry that is informed about the issues, educated about how the government operates, and willing to do more than grouse and complain.
As I point out in my book Battlefield America: The War on the American People and in its fictional counterpart The Erik Blair Diaries, “we the people” have the power to make and break the government.
The powers-that-be want us to remain divided over politics, hostile to those with whom we disagree politically, and intolerant of anyone or anything whose solutions to what ails this country differ from our own. They also want us to believe that our job as citizens begins and ends on Election Day.
Yet there are 330 million of us in this country. Imagine what we could accomplish if we actually worked together, presented a united front, and spoke with one voice.
Tyranny wouldn’t stand a chance.
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This article was originally published on The Rutherford Institute.
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute.
Nisha Whitehead is the Executive Director of The Rutherford Institute.
12 September 2023