Bushs War on the Bill of Rights
- Bush's War on the Bill of Rights
BY: Anthony Gregory
Lately, I have argued that the Bush administration's attacks on the
Bill of Rights, egregious as they are, do indeed have their
precedents in history. I never meant to defend Bush on this basis,
but merely to give historical perspective. I stand by what I said.
Bush, bad as he is, has not violated the Constitution any worse than
Lyndon Johnson, Richard Nixon or Harry Truman, and not as badly as
Woodrow Wilson, Franklin Roosevelt, or Abraham Lincoln.
Nevertheless, Bush did swear an oath to uphold the Constitution, and
he has shirked that duty considerably. We should not hold him to the
standard of past American tyrants, but rather to the finest of
America's founding principles. It is useful, though perhaps
depressing, to see the many ways in which president Bush has trashed
the most noble and inspiring of all attempts to limit government
through law, the Bill of Rights. Even as he advocates a new amendment
to the Constitution to set national standards on marriage, the most
important amendments already in place have each fallen prey to the
ravages of his government.
Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the government for a redress of grievances.
George W. Bush has shown an outright hostility to freedom of speech.
In the name of combating "indecency," the FCC under Bush has raised
its punitive fines to outrageous new levels, wasted money on
an "investigation" of Janet Jackson's breast, and pressured Clear
Channel to drop the Howard Stern Show. Bush has applied and
maintained draconian restrictions on the press in Iraq, even
forbidding the photography of flag-draped caskets returning home.
Attacking the fundamental right of free political speech, he signed
the horrendous Bipartisan Campaign Finance Reform bill, which
severely restricts dissent. The law makes it a crime for non-profit
advocacy groups simply to mutter the name of a national candidate
within the last sixty days before a general election. There is no
excuse for Congress making a law abridging the freedom of speech when
the First Amendment says, "Congress shall make no law abridging the
freedom of speech." Some thought that the Supreme Court would gut the
law's worst provisions, which it did not. If Congress relied on
another branch of the government to intervene and protect the public
from its excesses, it is guilty of a major dereliction of duty.
As a result of Bush's policies, the government has even attacked
freedom of assembly, creating "free speech zones" and keeping war
protesters away when Bush appears on camera. At the outset of the
Iraq War, Oakland police injured several war protesters by assaulting
them with wooden bullets and concussion grenades, even as they ran
away. Some have argued that the protesters, interfering with war
commerce, got what they deserved, but the "collateral damage"
suffered by the dockworkers probably disrupted the flow of trade that
day more than the protests.
One could feasibly list examples of how Bush has compromised the
right of Americans to "petition the government for a redress of
grievances," but the single following statement from Bush to Bob
Woodward captures the president's feelings about his responsibility
to answer to the people:
"I'm the commander, see. I do not need to explain why I say things.
That's the interesting thing about being the president. Maybe
somebody needs to explain to me why they say something, but I don't
feel like I owe anybody an explanation."
It's a wonder that Bush would want to deny others freedom in their
speech when he so frequently demonstrates such inspiring eloquence in
A well regulated militia, being necessary to the security of a free
state, the right of the people to keep and bear arms, shall not be
Many have long argued that Republicans value the Second Amendment
more than Democrats. So far, Bush's policy has fallen in line with
the Republican and NRA doctrine on gun control: the right to bear
arms is an inalienable right, and instead of passing unconstitutional
gun laws, the government should enforce more strictly the 20,000
unconstitutional laws already on the books. In effect, Republicans
oppose government undermining the choices of Americans, but so long
as government is in the business of doing so, its programs should be
fully funded and carried out by Republicans with strict adherence to
the letter of the law, resulting in punishments as severe as possible.
Ashcroft's Justice Department has indeed turned up the heat on
enforcing unconstitutional gun laws, boasting: "Under the President's
Project Safe Neighborhoods program, federal gun crime prosecutions
have increased by 68 percent over the last three years. Last year,
the Department set a new record of charging 23 percent more
individuals for violating federal firearms laws." The Bush
administration has asked for a $95 million increase in spending on
gun control programs for 2005. He has also expressed willingness to
renew the Assault Weapons Ban.
Moreover, although Bush signed the law passed by Congress that
allowed airline pilots to carry guns on planes one of the few
security measures after 9/11 that might have actually prevented the
terrorist attack his administration initially refused to implement
it. Bush acquiesced only after Congress and the Senate reconvened and
voted, by a supermajority, to force Bush to put guns in the hands of
In spite of what Republicans in the NRA and Democrats in the Violence
Policy Center might say, Bush has hassled gun owners more than any
recent president, and has shown only contempt for any moderation in
the War on the Second Amendment.
No soldier shall, in time of peace be quartered in any house, without
the consent of the owner, nor in time of war, but in a manner to be
prescribed by law.
The Third Amendment is always the toughest to discuss in its
relevance to today. Just as we must recognize that the "well
regulated militia" line in the Second Amendment referred to a
citizen's militia when it was written in the late 18th century, we
must consider the Third Amendment in proper historical context.
The American colonists had just fought a revolution against Britain,
the world's superpower that had imposed its will on much of the
planet's peoples. The Third Amendment was written in memory of the
Quartering Act of 1765, which compelled American colonists not only
to give up sovereignty within their own homes, but also to pay taxes
to build housing for British soldiers. After winning the Revolution,
the Founding Fathers wanted to prevent the new American government
from coercing its people into providing for its imperial and colonial
ambitions the way Britain had done.
As the U.S. government levies taxes on Americans and even on
Iraqis to pay its soldiers fighting for the global quasi-Trotskyite
democratic revolution that the War on Terrorism has become, Americans
should judge for themselves if the Bush administration has disgraced
the spirit of the Third Amendment. The manner in which the U.S.
military treats the houses of Iraqis has hardly been a
manner "prescribed by law." We can only hope that the U.S. government
does not take the final steps in defying the letter, as well as the
spirit, of the Third Amendment, by giving new meaning to "bringing
the soldiers home."
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no warrants shall issue, but upon probable
cause, supported by oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized.
This one is a no-brainer. The Patriot Act allows the feds to come
into your home, search your residence, and leave without telling you
for up to six months. It has expanded the government's powers under
the Federal Intelligence Surveillance Act to get warrants for
wiretaps from special courts, not subject to the same oversight as
typical courts. Its "Sneak and Peak" provision allowed the FBI to
obtain library records from librarians, who had to keep their mouths
shut about confrontations with officials. Within months of 9/11, law
enforcers had visited nearly 10 percent of America's
libraries "seeking September 11-related information about patron
reading habits. "The Justice Department has resurrected COINTELPRO, a
surveillance program that subverted groups and incited violence
between political dissidents in the Vietnam era. The administration's
ultimate goal of "Total Information Awareness" flies in the face of
any decent understanding of the Fourth Amendment.
Under Clinton, the Fourth Amendment was already in serious trouble
due to the War on Drugs and other domestic surveillance programs. It
has gotten indescribably worse since the 1990s, when Ashcroft
complained that Clinton wanted "to hand Big Brother the keys to
unlock our e-mail diaries, open our ATM records, read our medical
records, or translate our international communications." If today's
Ashcroft met his counterpart from the 1990s, he would probably say
that his avatar's warnings against Clinton's policies were
frightening "peace-loving people with phantoms of lost liberty" and
that such anti-government paranoia only gives "ammunition to
America's enemies and pause to America's friends."
The Bush administration has no intention to allow the anachronistic
Fourth Amendment to disrupt the War on Terrorism. This is a war for
freedom, after all, and we cannot let trivial liberties get in the
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a grand
jury, except in cases arising in the land or naval forces, or in the
militia, when in actual service in time of war or public danger; nor
shall any person be subject for the same offense to be twice put in
jeopardy of life or limb; nor shall be compelled in any criminal case
to be a witness against himself, nor be deprived of life, liberty, or
property, without due process of law; nor shall private property be
taken for public use, without just compensation.
Shortly after September 11, the Immigration and Naturalization
Service and Justice Department detained more than a thousand
individuals, whom Bush labeled as "terrorists" even after the Justice
Department admitted the detainees had no connection to terrorism. In
addition, at least dozens of Americans were detained without due
process of law because of a phony "material witness" status.
The Patriot Act has greatly expanded federal asset forfeiture powers,
which allow the government to confiscate property without even
accusing its owners of a crime. Those who "smuggle" their own money
out of the country may now see it seized. The administration has
worked to extend the despotic power of eminent domain, which allows
the government to seize property for such unconstitutional purposes
as federal production of interstate electrical lines.
When the founders discussed "due process of law" they meant more than
the arbitrary power of executive edict. The Fifth Amendment has
fallen victim to numerous beatings over the years, but Bush and
company rank among its all time worst enemies.
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the state and
district wherein the crime shall have been committed, which district
shall have been previously ascertained by law, and to be informed of
the nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining
witnesses in his favor, and to have the assistance of counsel for his
Perhaps James Madison meant to write at the end of this
sentence, "unless the president considers the accused an `enemy
Guantanamo Bay is the clearest and most troubling example of accused
criminals detained without any of the benefits of an impartial trial
with the due process spelled out in the Sixth Amendment. They do not
receive the rights of war prisoners, nor of criminal defendants,
because they fall under the makeshift category of "enemy combatant."
Of course, Bush does not "accuse" these prisoners of being "enemy
combatants" because then they would have the rights of
the "accused." He simply asserts they are "enemy combatants," and
that settles that.
The assertion that Guantanamo is constitutional because it is located
outside America is ludicrous and unsettling. It is ludicrous because
the U.S. has jurisdiction there, and if the government can violate
your liberties by moving you outside the country, the Bill of Rights
is meaningless. It's unsettling because it is an admission that the
goings on in Guantanamo are even more oppressive than the run-of-the-
mill Bill of Rights violations that Americans will tolerate at home.
Bush has violated the Sixth Amendment in other ways, but Guantanamo
typifies his attitude toward its basic principles. The Founding
Fathers would probably have an impossible time believing Bush's
flagrant disrespect for the rights of the accused. Of course, the
Founding Fathers would have probably been considered terrorists, and
would likely find themselves detained as "enemy combatants" for all
their un-American beliefs and subversive political activism.
In suits at common law, where the value in controversy shall exceed
twenty dollars, the right of trial by jury shall be preserved, and no
fact tried by a jury, shall be otherwise reexamined in any court of
the United States, than according to the rules of the common law.
The Seventh Amendment is often misunderstood. Written in the
aftermath of the American Revolution, its purpose was not only to
guarantee the rights of defendants in civil cases, but also the
rights of plaintiffs especially of plaintiffs suing government
agents for violations of their rights. After seeing mock courts set
up by King George III to protect his minions from any meaningful
legal recourse, the colonists wanted to guarantee that Americans
suing government officials would be guaranteed a trial by jury.
The Bush administration has been frightening in the way it has
nullified lawsuits against its actions. The Justice Department simply
laughed at attempts of the ACLU to get lists of detained suspects
through lawsuits in early 2002. Ellen Mariani's lawsuit against the
Bush administration, accusing it of foreknowledge of, and failure to
act on, September 11, may seem to many like the material of a
conspiracy theory, but we can be fairly sure that the question will
never go to a jury. Quite recently, an ACLU legal challenge against
the Patriot Act became news after being silenced for three weeks by
the Patriot Act.
Perhaps the reason for the inability of Americans to successfully sue
administration officials in a trial by jury is that none of these
transgressions of which the government is accused is a controversy in
which the value at issue exceeds twenty dollars.
Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.
We have seen Martha Stewart sentenced to prison for claiming
innocence of a victimless crime. We have seen Tommy Chong sentenced
to jail time for manufacturing glassware into the politically
incorrect shape of marijuana paraphernalia. We have seen Clear
Channel fined by the FCC for about half a million dollars, all over
Howard Stern's performing the same radio material he's done for years.
These are only some high profile cases of Americans suffering
excessive punishments for victimless activities. One low-profile
example, which should be widely known, is Mohammed Hussein, the
first "criminal" ever convicted under the Patriot Act. He was called
a terrorist by the government and media, he lost his money
transmitting business, and he received an eighteen-month prison
sentence. What did he do to deserve this? What was his crime under
the Patriot Act? He incorrectly filled out an application for a state
business license. Of course, conservatives still argue that the
Patriot Act has not been abused.
For decades Americans have endured punishments that had no semblance
of proportionality to their "crimes." Under the Bush administration,
the Eighth Amendment has been circumvented as increasingly cruel
punishments have become decreasingly unusual.
The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.
When the Constitution and Bill of Rights were being considered for
ratification, some Americans pointed out possible loose ends.
The "Antifederalists" who often preferred the term "Federalists,"
and resented their opponents for stealing the label wanted to
ensure that the federal government only exercise those powers
mentioned in the Constitution and that it did not violate certain
fundamental rights. The Antifederalists tended to favor the Bill of
Rights, but they feared that the listing of specific rights would be
used to rationalize violations of unlisted ones. The Ninth and Tenth
Amendments were meant to hammer home the notion that the federal
government was subservient to the people.
George W. Bush has no conception of the inalienable, unenumerated
rights of the American people. He has flouted the personal, intimate
right to self-medication by closing down medical marijuana
facilities. He has affronted the right to peaceful trade by
establishing protectionist steel tariffs and imposing sanctions on
other countries, most recently Syria. His administration has
abrogated the right to travel with his no-fly list, which uses the
pretext of fighting terrorism to prevent political dissidents and
those with names similar to those of suspects from flying. On
September 11, 2001, the federal government even impeded the right to
emigrate by forbidding anyone from leaving the country. His Patriot
Act made it a crime to carry significant amounts of cash on a plane.
While the Bush administration assaults the liberties specifically
spelled out in the Bill of Rights, it also punishes those who wish to
relieve their pain from cancer, improve their lives with commerce, or
quietly leave the country with their savings all unwritten,
essential rights that James Madison and Thomas Jefferson would be
appalled to see so routinely eviscerated in America.
As constitutional scholar Randy Barnett says, "The Ninth Amendment
mandates that unenumerated rights be treated the same as those that
are listed."8 Bush would probably agree wholeheartedly, as he trashes
our enumerated and unenumerated rights equally.
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.
The Tenth Amendment concludes the Bill of Rights with a demand that
the federal government be restricted to activities authorized in the
Constitution. The constitutional powers of the president, Congress,
and the Supreme Court are highlighted in Articles I, II and III of
the main body of the Constitution, and anything outside of this
delegated authority is not the proper jurisdiction of the national
government. For years conservatives rightly complained that Democrats
advanced all sorts of federal programs that had no constitutional
Almost every government abuse I mention in this essay qualifies as a
violation of the Tenth Amendment. In addition to these violations,
Bush has sharply increased farm subsidies, signing a record $190
billion dollar farm bill, and severely distorting domestic and
international markets. He signed into law the largest expansion of
Medicare since its inception, looting present and future taxpayers of
hundreds of billions and maybe more than a trillion dollars in one of
most shameless giveaways to preferred voters and business interests
in decades. Aside from giving prescription drugs away free he has
unleashed plans to build national surveillance systems to
monitor "prescription drug abuse."
Bush has increased federal funding for education, welfare, foreign
aid, local law enforcement, and "faith-based" initiatives, and he has
developed programs to encourage marriages and to provide relationship
counseling. Since Bush took office, the U.S. budget's discretionary
spending has increased about 28%. Through his "compassion
conservatism," George W. Bush has perhaps done more to advance the
American welfare state than any other president in American history.
There is not a single aspect of Americans' economic and personal
lives that the modern federal government considers off limits. When
it comes to providing the federal government with new powers and
duties for which there exists no constitutional authority, President
Bush ranks among the very few most ambitious presidents in American
The Bill of Rights RIP?
The Bush administration has been utterly hostile to the entire Bill
of Rights. I did not focus on it, but one can quickly realize that
Bush has violated all the principles of the Bill of Rights in regard
to the Iraq War alone. Iraqis have been censored, disarmed, occupied,
searched, hassled, regulated by curfew, severely and arbitrarily
beaten and punished, tortured, humiliated, and generally abused by a
foreign government that respects no limits on its power and regards
Iraqis as if they have no impermeable rights at all. This is not to
say that Saddam respected anyone's rights, but it speaks to the
lunacy of the U.S. government brutally instituting a constitution
abroad when it has no regard for the constitutional safeguards
against any of its own actions.
During wartime, the Bill of Rights and its corresponding liberties
tend to suffer extraordinary abuse. Bush prides himself as a "war
president," and so it should come as no surprise when he treats his
foreign and domestic subjects accordingly.
Although, as I've said before, some previous presidents may have been
as bad or even worse, we must still have a clear understanding and
appreciation for how much George Bush and the present government are
undermining the principles that made America so special. The first
Ten Amendments of the Constitution provide a blueprint for an
incredibly free society. Perhaps Bush, who has a phobia against
reading anything aside from what his advisors give him, should break
with personal custom for at least half an hour and read the Bill of
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