Guantanamo and the Bill of Rights

by Jacob Hornberger, Future of Freedom Foundation

When one considers the Bill of Rights, an obvious question arises: Why did our American ancestors demand the enactment of the Fourth, Fifth, Sixth, and Eighth Amendments?

The answer is simple: Our ancestors believed that in the absence of those amendments, U.S. officials would end up subjecting people to the types of things that those amendments restricted. That is, if there was no Bill of Rights, U.S. officials would be jailing people indefinitely, torturing them, killing them, and mistreating them, all without such procedural guarantees as trial by jury, protection against forced confessions, the right to have a defense attorney, the right to a speedy trial, the right to cross examine witnesses and to summon witnesses, the right to be formally notified of criminal charges, the right to be free of cruel and unusual punishments, the right to be free of unreasonable searches, and the right to due process of law.

Of course, there are those today who would argue that our American ancestors were being paranoid. Federal officials would never do such things, they would suggest, especially to the American people. After all, they would point out, federal officials are Americans too. Moreover, they swear an oath to support and defend the Constitution. The Fourth, Fifth, Sixth, and Eighth Amendments are antiquated and superfluous, they would say, because U.S. officials would follow the principles enunciated in those amendments without being required to do so by the Bill of Rights.

Unfortunately, however, those who say such things are woefully misguided. The fact is that our ancestors were brilliant in foreseeing that those amendments were absolutely necessary. In the absence of those amendments, there is no doubt that federal officials would be doing the things that those amendments meant to restrict.

How do we know this? We know it because of what federal officials have done in Cuba, Iraq, and Afghanistan.

Consider the Pentagon’s and CIA’s prison and judicial system at Guantanamo Bay. In the beginning, the Pentagon and the CIA took the position that Gitmo would be entirely independent of the Constitution and the federal judiciary. It claimed the authority to establish its version of an ideal prison camp and judicial system without any outside interference.

What type of system did the Pentagon and the CIA establish when they were setting up what they considered to be a model prison and judicial system? Wouldn’t you think that the system would be one that would be modeled after the one that our American ancestors chose?


The Pentagon as a Jobs Program, Cont…

Last week I discussed the tendency for policymakers to treat the Pentagon like a giant jobs program. It was prompted by an article from the Associated Press on members of Congress shoving unwanted upgraded Abrams tanks down taxpayers’ throats because retooling tanks sustains jobs back in the district. As it turns out, former Reagan budget director David Stockman touches on the Abrams tank situation in his new book, The Great Deformation.

In Chapter 5 – “Triumph of the Warfare State” – Stockman gives an account of the behind-the-scenes dealings that resulted in the massive military buildup during the Reagan administration. Stockman says political calculations – and not “one scintilla of bottoms-up program detail or even a single hour of professional analysis” – drove the new Reagan administration to champion 7 percent (real) growth in defense spending every year for five years (1982-1986), and from a already elevated level. According to Stockman, the “7 percent real growth top line” was a “blank check” for the Pentagon to go on a spending binge – much to the pleasure of the military-industrial complex.

From p. 74:

No fresh start or strategically coherent defense plan was ever developed by the Reagan administration. This immense, content-free “top line” was simply backfilled by the greatest stampede of Pentagon log-rolling and budget aggrandizement by the military-industrial complex ever recorded.

In a process that went on week after week for the better part of a year, the huge swaths of empty budget space under the new defense “top line” were converted into more and more of virtually everything that inhabited the Pentagon’s vasty deep. Much of it, which had languished for years and decades on the wish lists of the brass and military contractors, now got funded without much ado.

With defense funds being virtually slopped onto the waiting plates of the four military services, it is not surprising that much of it went to the conventional forces. Notwithstanding all the scary stories about the nascent Soviet nuclear first-strike capabilities, there really weren’t many concrete programs to counter it except for a new strategic bomber and an MX missile upgrade.

At the heart of the Reagan defense buildup, therefore, was a great double shuffle. The war drums were sounding a strategic nuclear threat that virtually imperiled American civilization. Yet the money was actually being allocated to tanks, amphibious landing craft, close air support helicopters, and a vast conventional armada of ships and planes.

These weapons were of little use in the existing nuclear standoff, but were well suited to imperialistic missions of invasion and occupation. Ironically, therefore, the Reagan defense buildup was justified by an Evil Empire that was rapidly fading but was eventually used to launce elective wars against an Axis of Evil which didn’t even exist.

That leads to the Abrams tank. 


Common Core: An Attack on Freedom and What to Do About it

So what is happening in our education system? We reviewed a discussion of this topic with a representative of the American Principals Project.  And here are just some of the anti-constitutional and Orwellian goings on.

What is this Common Core about?

It is about the ideal of collective thought, your children will be “educated” not to their full free potential, but to become servants of the state.  They will be tested over and over again. The results of those tests will filed away and determine what their life will be.

How’d this happen?

Common Core (aka Race to the Top) presented the curriculum standards to the states while the legislatures were in recess and the fed “required” an answer in 2 months.  This did not allow the legislators to review, comment or even be consulted before the states had to answer.   And of course the Fed dangled a lot of money promises too.

States are Constitutionally granted right to Educate their citizens are denied.  Tenth Amendment is ignored.

The state must adopt ALL of the curriculum. Once adopted, no more than 15% in each area may be modified.  Teachers, Principals, nor Parents will have any say in the curriculum.  NONE.


Why Local Matters

The Kansas Chamber of Commerce again presented a plan earlier this year that attempted to liberate grocers in the state to sell wine and liquor. Soon after, they presented a bill to the legislature, hoping to liberalize the state’s regulation of alcoholic beverages. This is a regular occurrence, although it’s entirely unnecessary, given the recent history of alcohol legislation in the state of Kansas. If all of this seems strange to you, allow me to provide a little context.

Kansas has a storied history of alcohol prohibition; it was the first state to enact such a government program. Voters first moved to prohibit alcohol in 1881, and such restrictions continued until 1948 when again, a majority of Kansans voted to lift some prohibitions. Of course the 21st Amendment was adopted fifteen years prior, but that was of no concern to the legislature, who never considered the amendment, and to this day has not ratified it.

Carrie Nation made a name for herself in Kansas, helping to start a chapter of the Women’s Christian Temperance Movement. She began with harassing saloon owners and consumers of alcohol and within a short period was destroying their property. Wielding a hatchet, she would march into a saloon and attack the bar, before smashing as much of the stock as she could, to prevent the consumption of alcohol. Nation claimed to have been called to do this, and during her career of “hatchetations,” as they came to be known, was arrested dozens of times.


Colorado Legislature Nullifies the Federal Ban on Hemp

Colorado’s Industrial Hemp Bill (SB13-241) passed the last legislative hurdle as the State Senate concurred with the State House’s minor Amendments. The bill now moves to the Governor Hickenlooper’s desk for his signature.

If the bill becomes law, Colorado will nullify unconstitutional federal laws and regulations which ban farmers from growing this remarkable product. Currently, the United States is the world’s largest importer of Hemp (with China and Canada the top two exporters in the world), and the Colorado legislature wants their citizens to be allowed to participate and profit in this market.

The federal government has no constitutional authority to ban the production of this industrial plant, but has persisted in preventing its domestic production.  The result?  Products with hemp that are readily available at your local grocery store must be imported from another country – resulting in higher costs for you and fewer farming jobs in America.

The United States is the only developed nation that fails to cultivate industrial hemp as an economic crop, according to the Congressional Resource Service.  Recent congressional research indicates that the hemp market consists of over 25,000 various products. The same research found that America imports over $400 million worth of hemp from other countries.  At this time of economic difficulty, 13-241 would not only expand freedom and support the Constitution, it would also be a great jobs bill.


Missouri Legislature Nullifies All Federal Gun Control Measures by a Veto-Proof Majority

Jefferson City, Mo (May 8, 2013) – Tonight, the Missouri State House voted to send Governor Jay Nixon what could arguably be the strongest defense against federal gun control measures in American history.  The vote was 116-38.

HB436, introduced by Representative Doug Funderburk in February, was initially passed by the House in April by a vote of 115-42.  Last week, the State Senate approved the bill with an amendment which did not change any of its nullification aspects. The vote there was 26-6.  The bill then needed one final vote in the house which happened just before 10pm local time this evening.

The votes in both the House and Senate are by a strong veto-proof majority.  Local activist Matt Radcliffe acknowledged as much when he said, “Governor Nixon can do nothing and it will automatically become law July 1st.  Or he can sign it into law. Or he can veto it then his veto will be overridden in the house and it will become law anyway!”

As law, HB436 would nullify virtually every federal gun control measure on the books – or planned for the future.   It reads, in part:


Texas’ Firearm Protection Act: Fact and Fiction

The Texas House recently passed multiple gun measures designed to protect Texans from undesired, if not unconstitutional, federal gun laws. Two bills related to federal gun laws, HB 1076 and HB 928, are proceeding and at the time of this writing HB 1076 has passed the final vote in the Texas House, 100-47 and HB 928 has passed as well, 102-31. The bills seek to deny state and local resources for enforcement of federal gun laws and in support of this deny funding to state and local officials that do enforce federal gun laws.

Unfortunately, there is a wealth of misinformation published that obscures the legitimacy of this legislation. For instance, the  Dallas Morning News makes numerous claims inconsistent with facts.

Key statements made in this article are incorrect and mislead the reader regarding the content and legitimacy of the bill’s language. Starting in the third paragraph, Ms. Hoppe begins her summary of a “proposal to nullify new federal gun control laws.”. This is in regards to Steve Toth’s HB 1076.

Ms. Hoppe states: “Those gun laws not already on the books in Texas couldn’t be enforced here under the sweeping and unadjudicated argument that they wouldn’t be constitutional under the Second Amendment.”

It is true that the legislation would reject local enforcement of federal laws. That is the point of the legislation in general. In contrast to the implication, it is very workable in practice as state laws would be put in place as needed. This allows the Texas legislature to draft gun laws that are consistent with the Texas Constitution.

However, Ms. Hoppe’s claim that the legislation challenges the constitutionality of any federal law is false. No such argument is being made regarding the Second Amendment. In HB 1076, Texas is merely refusing to participate in the local enforcement of federal gun laws. In fact, the constitutionality of the gun laws is neither challenged nor validated. They simply deny resources and manpower to enforcement. The Constitutionality of this bill from the federal perspective is clear.  In Printz v. U.S., a 1997 Supreme Court case, Scalia rejected federal comandeering of state and local officers regardless of the constitutionality of the federal law. In other words, the federal government cannot, in any case, force states to uphold federal laws.


They Don’t Know What They Don’t Know

When you work to advance a controversial idea like nullification, you expect to deal with a certain number of hostile opponents.

But I’m not gonna lie; sometimes countering the same ridiculous arguments over and over again gets tedious. I mean, how many different ways can you say “nullification was never used to support slavery?” Or “only federal acts ‘in pursuance of’ the Constitution stand supreme?”

I try to be patient and just keep hammering the facts. Slowly but surely, we are making progress. A Rasmussen poll released this week actually indicates more Americans than not believe states should nullify unconstitutional acts. That’s pretty amazing and extremely encouraging.

But every once in a while, some of these clowns really get under my skin. The ones who sanctimoniously belittle those of us who support nullification, using smears like “wacky” and “demented” and “crackpot,” yet clearly don’t know the first thing about the history of nullification really make me see red. They act like no sane person could possibly support nullification. They don’t even attempt to counter the idea. They just smugly make fun of us with an air of intellectual superiority.

Yet in the process, these brilliant caretakers of conventional wisdom get basic facts completely wrong.

Take this second-rate columnist named Sid Salter. He recently wrote a wonderfully condescending tome condemning nullification.