Post-Constitutional America: What We’ve Lost Since 9/11

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We Meant Well

Post-Constitutional America: What We’ve Lost Since 9/11

At issue in post-Constitutional America is not that all rights for all people all the time will disappear (though privacy seems on the chopping block.) It is that the government now decides when, where and how the rights which were said to be inalienable still apply. (Photo: John Moore/Getty Images)

Ed Snowden is right. We have lost too many of our freedoms. What the hell happened?

The United States has entered its third great era is what happened. The first, starting from the colonists’ arrival, saw the principles of the Enlightenment used to push back the abuses of an imperial government and create the Constitution and the Bill of Rights. The next two hundred some years, imperfect as they were, saw those principles progress, putting into practice what an evolving government of the people might look like.

We are now wading in the shallow waters of the third era, Post-Constitutional America, a time when our government is abandoning the basic ideas that saw our nation through centuries of challenges. Those ideas– enshrined in the Bill of Rights– are disarmingly concise, the haiku of a People’s government. Deeper, darker waters lay in front of us, and we are drawn down into them. The king, jealous of the People’s power, wants some back.

Pre-Constitutional America: 1765-1789

History turns out to be everything that matters. America in its Pre-Constitutional days may seem familiar to even casual readers of current events. We lived under the control of a king, a powerful executive who was beholden only to the rich landowners and nobles who supported him. The king’s purpose was simple: to use his power over Americans to draw the maximum financial gain out of the colony, suppressing dissent in service to the goal and to maintain his own power.

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If you lived in Pre-Constitutional America, you knew that imposed laws could be brutal, and punishments swift and often extra-judicial. Protest was dangerous. Speech could make you the enemy of the government that ruled you. Journalism could be a crime.

Nothing to Hide, Nothing to Fear?

There were many offenses against liberty in Pre-Constitutional America. One pivotal event, the Stamp Act of 1765, stands out. To enforce the taxes imposed by the Act, the king’s men used “writs of assistance” that allowed them to burst into any home or business, with or without suspicion. Americans’ property and privacy were torn apart, ransacked, often times more as a warning of the king’s power than any “legitimate” purpose the original approved law might have held. Some American was then the first to mutter in ignorance “But if I have nothing to hide, why should I be afraid?” He learned soon enough everyone was treated as an enemy of the government, everyone, it seemed, had something to hide, even if it turned out they did not.

The Stamp Act, and the flood of similar offenses, created in the Founders a profound suspicion of government unchecked, a confirmation that power and freedom cannot coexist in a democracy. What was needed, in addition to the body of the Constitution which outlined what the new nation’s government could do, was a remuneration of what that government could not do. The answer was the Bill of Rights.

Never Again: 1789 – 9/11/2001

There was no mistaking it: the Bill of Rights was written to make sure that America’s new government would not be the old government of a king. Each important amendment spoke directly to a specific offense committed by the king. The Bill would protect Americans from their government. The rights enumerated in the Bill were not granted by the government, but already present within the People. The Bill said what the government could not take away. Never again, the Founders said.

For over 200 years the Bill of Rights expanded and contracted. Yet through out, the basic principles that guided America were sustained despite war, depression and endless challenges. It was a bumpy road, but it was a road that traveled forward.

(The Founders were imperfect men, and very much of their era. As such, the rights of women and Native Americans were not addressed. Shamefully, the Bill of Rights did not destroy the institution of slavery, our nation’s Original Sin. It would take many years, and often much blood, to make up for those mistakes.)

Post-Constitutional America: 9/12/2001 to the Present

Then, one sharp, blue September 11 morning, everything changed, and our Post-Constitutional era began.

You know the story: NSA spying, drone killing, Guantanamo, arbitrary arrests and police violence. And for every short-hand example, there are many other motes of shame you have probably thought of as you read. If not, open today’s newspaper or Google “NSA” and they’ll most likely be there. Remember too that Manning, Snowden and other whistleblowers were able to pass on only relatively small portions of the information the government is trying to hide, and we haven’t even seen all of the Snowden documents yet.

But isn’t it all legal? Taking the most generous position, all the things the king did, and the government now does, were (albeit often in classified form) approved in (albeit often secret) courts. But in Constitutional America, there was a standard above the law, the Constitution itself. The actions of the executive and the laws passed by Congress were only legal when they did not conflict with the underlying principles of our democracy.

The accepted history of our descent into a Post-Constitutional state is following 9/11, evil people under the leadership of Dick Cheney, with the tacit support of a dunce like George W. Bush, pushed through legally-lite measures to allow kidnapping, torture, imprisonment and indefinite detention, all direct contraventions of the Bill of Rights. Obama, elected on what are now seen as a series of false promises to roll back the worst of the Bush era-crimes, went full-in for the same or more. That’s the common narrative, and it is mostly true.

What is missing is a more complete view. Even today, years after 9/11, 45 percent of Americans say that torture is “sometimes necessary and acceptable to gain information that may protect the public.” Snowden’s revelations about the NSA revealed in depth how far the government has gone, though much of the raw outlines of what he filled in have been known for several years without much exposure in the mainstream media.

Americans, ignorant of their own history, seem unsure whether or not the NSA’s actions are indeed justified, and many feel Snowden and the journalists who published his material are criminals. The most common meme related to whistleblowers is “Patriot or Traitor?” and toward the war on terror, “Security or Freedom?” There is no widespread movement toward any real change in what the government has been doing. It seems many Americans like it, and support it.

To return to the set of rules, laws and beliefs that we still claim in high school civics classes define us, the Bill of Rights, means first deciding we will no longer agree to have those rights taken away from us. No, no, not taken away– given away, too easily. Too many Americans, compelled by fear and assured by propaganda, want the government to expand its powers further, embracing dumb-headly the idea that freedom is in conflict with security. The Founders, even as they remained under significant threat from the then-World’s Most Powerful Nation, knew all along the real dangers did not lie out over the water, but on land, at home, inside.

But wait, people say. I write angry emails all the time and nobody has kicked down my door. I went to court for something and it worked just the way the rules said. I was randomly selected at the airport and it took five minutes, no big deal. True all. For people who’s last strongly held belief was over who got cheated on the last round of Dancing with the Stars, life isn’t very different.

At issue in post-Constitutional America is not that all rights for all people all the time will disappear (though privacy seems on the chopping block.) It is that the government now decides when, where and how the rights which were said to be inalienable still apply. Those decisions will likely be made in secret and will be enforced without recourse. You’ll never know who is next.

We are the first to see what is post-Constitutional America, and perhaps the last who might stop it.

Peter Van Buren

Peter Van Buren

Peter Van Buren spent a year in Iraq as a State Department Foreign Service Officer serving as Team Leader for two Provincial Reconstruction Teams (PRTs). Now in Washington, he writes about Iraq and the Middle East at his blog, We Meant Well. His new book is We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People (The American Empire Project, Metropolitan Books).

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