J Robert Smith
- May 18, 2020
- 5 min read
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” – Tenth Amendment, 1791
“Without liberty, law loses its nature and its name, and becomes oppression. Without law, liberty also loses its nature and its name, and becomes licentiousness.” – James Wilson, Of the Study of the Law in the United States, 1790
Fear and ignorance are twin enemies of liberty. The COVID-19 pandemic has been fueled by both. The consequences are jarring. The economy is waylaid – but, critically, so are our rights.
In practically every state, citizens’ constitutional rights have been trampled. Restrictions have been imposed in the name of combating a public health menace. We’re told that limits on our constitutional guarantees are temporary, but are they? When the U.S. government infringed upon rights during past wars and emergencies, those rights weren’t restored completely.
Ted Galen Carpenter at the Cato Institute pinpointed this critical threat to our liberties. Carpenter wrote on March 30, 2020:
Although appalling, such attempted eviscerations of constitutional liberties should not be surprising. Governments invariably exploit crises to expand their powers—often to a dangerous degree. That certainly has been the track record in the United States throughout our history. Worse, a significant residue of expanded powers always persists after the crisis recedes and life supposedly returns to normal. [italics added]
Therein lies the danger. Federal and state governments aren’t likely to surrender all the authority they now claim. Precedents set during this contagion will be used to justify unrelated exercises of power in the future.
More from Carpenter:
More recently, the policy responses to the 9–11 terrorist attacks included that 2001 Authorization for the Use of Military Force (AUMF), ostensibly to wage war against Al Qaida and its allies. However, the AUMF became a veritable blank check for presidents to wage wars anytime, anywhere, for any reasons those presidents deemed appropriate. Domestically, the response to 9–11 included the so‐called Patriot Act and its legendary erosions of the 4th Amendment’s protections against unreasonable searches and seizures, as well as the weakening of other substantive and due process rights guaranteed in the Constitution. That measure was a crucial building block in the growth of the current pervasive surveillance state.
What about the FISA Court, lately abused in an attempt to frame President Trump?
The Foreign Intelligence Surveillance Act (FISA) was created in 1978. It was the handiwork of Senator Ted Kennedy. Kennedy was famous for expansions of government. The U.S. was still fighting the Cold War. FISA was enacted ostensibly to better protect Americans’ rights from being abused. But FISA has troubling aspects.
A warrant to wiretap someone suspected of spying with or for a foreign government is issued by the Foreign Intelligence Surveillance Court — or FISA Court. The court is actually a tribunal whose actions are carried out in secret. The tribunal has the authority to grant warrants for electronic surveillance. [italics added]
Secrecy, when it comes to rooting out spies and terrorists has cause, but governments operating routinely in secret are open to abuse. The Obama administration’s “Crossfire Hurricane” plot targeting Carter Page, George Papadopoulos, and, finally, President Trump is a study in FISA exploitation.
From the National Review, April 9, 2020:
Well, DOJ inspector general Michael Horowitz recently told the Senate that those FISA warrants used to spy on the Trump campaign were “entirely” predicated on information from that [Steele] dossier. And we now know that virtually every one of those applications to spy on American citizens was rife with errors, misleading information, and “fraudulent” evidence. You know, just some endemic, comprehensive, and highly targeted “sloppiness.”
The spin from the mainstream media is that the FBI didn’t commit fraud. The FBI wasn’t malicious in targeting Trump, General Flynn, and lesser players. The Bureau is simply incompetent. These New York Times and CBS News reports reflect the MSM’s misleading take.
In an April 16, 2020 article, Just the News succinctly lays out the damaging charges against the FBI:
The list of FBI misdeeds in the Russia investigation keeps piling higher.
In addition to filing inaccurate Foreign Intelligence Surveillance Act warrants, hiding evidence of innocence from the courts and falsifying a government document, the bureau collected inappropriate cell phone photos during two secret premises searches in summer 2017 while spying on Trump campaign adviser Carter Page.
The revelations surfaced belatedly this week when the government declassified once-redacted footnotes from Justice Department Inspector General Michael Horowitz’s investigative report on the bungled Russia case.
The point of raising the FISA misdeeds is that a Cold War measure, supposedly designed to prevent federal abuse of rights, led to rights being abused. The abuses are of great magnitude. Ambitious and scheming people in government are glad to game whatever means available to turn them to their advantages to achieve their power-grabbing ends.
“Progressives” have suddenly discovered the 10th Amendment, aka, states’ rights. Some conservatives have sheltered-in-place, claiming that governors are perfectly justified in exercising broad powers during emergencies.
From John Malcom at the Heritage Foundation, March 20, 2020:
The 10th Amendment reserves to the states broad police power to regulate behavior and enforce order within their territory in order to protect the health, safety, and general welfare of their inhabitants.
Significantly, the Supreme Court has held that states can invoke such authority—within reason—to respond to a health crisis.
In fairness to Malcom, read his article. But the tension between the 10th Amendment and the preceding nine amendments in the Bill of Rights isn’t much explored. There are national crises and emergencies that require extraordinary responses from governments. But the COVID-19 contagion isn’t as first understood and billed, yet harsh lockdown measures persist. Easing lockdowns from red to yellow levels in some states have only modest impacts on economies and rights.
The 10th Amendment was written principally as a bulwark against concentrations of power in the national government. The founders were correctly worried about tyranny rising on these shores. Power and authority dispersed and limited, within and among governments, were breaks on tyrannical ploys. Most powers, as the Constitution makes clear, reside with the people. We call those powers and their exercise “liberty.”
The founders had a keen grasp of human nature – its virtues, but most importantly, its many vices. They weren’t cynics; they were realists. Being an American conferred no immunity from power-lust. The first nine amendments that comprise the Bill of Rights make it crystal clear that citizens enjoy God-given rights. They can be abridged only with just cause, through due process, and limited in scope and time.
Actions by the national and state governments in times of crisis should not exceed the challenge of the crisis at hand. Measured responses are called for, and the minimal necessary response should be the default. Can we honestly say that’s been the case in dealing with the COVID-19 contagion?
In a couple of months, the nation and states have gone from a two-week “flattening the curve” in infections to Washington State’s governor, Jay Inslee, and Pennsylvania’s governor, Tom Wolf, aiming to create “contact tracing brigades” to fan out across their states to collect personal data from citizens.
But do these invasions of privacy matter? The people have been bombarded with misinformation, in many instances. We’re fighting the modern equivalent of the Black Death, aren’t we? So, restraints on government are cast aside. State governments creating and housing databases of our personal information can’t possibly be misused by them in the future, can they?
When fear and ignorance are in the driver’s seat, freedom takes a backseat. If we don’t suffer immediately for that, it’s very likely our children and grandchildren will.
What do you think?Weigh in!