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Principles and the Constitution

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Several weeks ago, the United States Supreme Court held that certain procedural safeguards in the U.S. Constitution did not extend to foreign citizens under certain circumstances. The case was noteworthy not just for its holding but, more important, for what it connotes with respect to the Constitution and the desire by U.S. public officials to violate its principles.

You will recall that at the time that a new Constitution was being considered in 1787, there was no Bill of Rights which expressly prohibited the national government from interfering with well-established rights of the people. Some claimed that since the Constitution set up a government of enumerated powers, there was no necessity for express provisions preventing interference with such rights; if a power was not enumerated in the basic document, they argued, there was no risk of government officials exercising it.

Others, knowing that public officials historically had used political powers to trample on fundamental rights, wanted an express prohibition against interference with such rights. This group of Americans won the day. The Constitution was adopted on the condition that a Bill of Rights would be enacted shortly after the new Congress convened.

Experience has proven that the second group of American patriots — those who demanded an express Bill of Rights-were correct. Government officials, including those in America, are invariably obsessed with gaining more and more power over the lives and property of other human beings. And they will do everything they can to achieve it unless constrained by some external force.

It is not a principled commitment to the rights of Americans that restrains American public officials from infringing upon such rights but rather the express provisions of the Constitution and the willingness of an independent judiciary to enforce them.

Several years ago, the U.S. government quartered American troops on Honduran soil. The property that they appropriated for this purpose happened to belong to the wholly-owned corporations of an American citizen. The American filed suit against the U.S. Government in an American federal court to enjoin any further occupation of the property. The U.S. government resisted the action and after many years of litigation, the request for injunctive relief was made moot by the departure of the American troops. But what was significant about the case was that throughout the many years of litigation, the U.S. government officials failed to make any payment for the property which they had seized without notice, hearing, or compensation.

The significance of the recent Supreme Court case is two-fold: first, that American government officials again implicitly have no reservations about violating the Constitution, albeit against foreigners; and, second, that the Supreme Court will uphold such violations even though the power to commit them is not expressly enumerated in the Constitution.

What prevents our government officials from doing the same thing to us here in the United States? A principled devotion to the rights of American citizens?

Balderdash! What restrains American public officials from violating the provisions of the Bill of Rights — taking our property away from us without due process of law or just compensation, depriving us of freedom of speech, religion and press, infringing on our procedural safeguards — is this: the threat of an independent federal judge slapping them down and, if necessary, incarcerating, or otherwise punishing, those officials who choose to remain recalcitrant.

The express safeguards in the Constitution, and the ability and willingness of the judiciary to enforce them, are what protect us from the President and the Congress and their swarms of officers whose primary mission in life is to harass us and eat out our substance. Thank God for those wise and far-seeing American patriots who had the courage of their convictions 200 years ago. Thank God they demanded and secured express provisions against the abuse of political power by their (and our) public officials. If they had failed to secure passage of the Bill of Rights, one can only imagine with horror what our present-day politicians and bureaucrats would be doing to us in the name of the public good.

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    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. Send him email.