The United States Of America: Is The Constitution A Failed Experiment?
02 April 2015
By Jacob G. Hornberger
Some people say that given the massive welfare-warfare state under which we
now live, itís clear that the Constitution and the Bill of Rights have proven
to be a failed experiment in the protection of the rights and liberties of
the American people.
But is that true?
Consider the fact that Americans are not forced to send their children into
state institutions to receive religious indoctrination. If it wasnít for the
First Amendment, there is little doubt that that would be happening in
various states and localities across the country.
How can we know that? By the fact that so many people, particularly
conservatives, would love to get prayer in public schools. Donít forget that
public schools are government institutions whose students are there by state
compulsion. Rather than bring an end to such educational compulsion,
conservatives and others want to subject those students to religious
Thus, thank goodness for the First Amendment and its protection of religious
liberty. Without it, the state would be using its public-school system to
indoctrinate children not only in education but also in religion. What a
shame that our American ancestors didnít extend the provisions of the First
Amendment to both religion and education.
Or consider free speech. Unlike in Egypt, where people are being rounded up,
jailed, and tortured for speaking out against the government, U.S. officials
are not doing the same to American citizens. Thatís not because U.S.
officials wouldnít love to do such things but because they know that the
judicial branch of the federal government would quickly order the release of
people in habeas corpus actions, based on the First Amendmentís protection of
freedom of speech.
How do we know that U.S. officials would do those things if there wasnít a
First Amendment? Because they are continuing to funnel millions of dollars of
U.S. taxpayer money into the coffers of Egyptís military dictatorship for the
precise purpose of helping it to do those things to the Egyptian citizenry,
in order to be able to maintain its tyrannical grip on power and its
partnership with the U.S. government.
What about gun rights? If it wasnít for the Second Amendment, there is no
doubt that the U.S. national-security branch of the federal government would
be doing what it does when it invades and occupies foreign countries ó
bashing down peopleís doors in warrantless searches and confiscating guns,
all with the aim of maintaining peace, order, and stability within the
Or consider the procedural guarantees that our ancestors had the foresight to
include in the Fourth, Fifth, Sixth, and Eight Amendments. If they hadnít
done that, there is no doubt that such guarantees would be nonexistent in
judicial proceedings, at least insofar as drug cases are concerned but most
likely in all federal prosecutions.
How can we be sure of that? Look at the model ďjudicialĒ system that the
Pentagon set up in Cuba. No trial by jury, no due process of law, no speedy
trials, and no right to confront witnesses. In fact, before the U.S. Supreme
Court stepped in and assumed jurisdiction, they werenít even going to permit
criminal-defense lawyers to participate in their ďjudicialĒ system.
The military limited its system at Gitmo to terrorism cases but there can be
no doubt that if they were able to get away with it, theyíd have the same
type of system for drug cases that they have for terrorism cases. No jury
trials, no due process, no speedy trials. Just warrantless searches of cars,
homes, and businesses, to find drugs, followed by kangaroo tribunals,
indefinite detention, torture, and even execution of suspected drug
What about the welfare-welfare state, whereby Americans live under a massive
socialist-interventionist economic system and a massive overgrown
military-intelligence establishment? Didnít the Constitution and the Bill of
Rights fail to protect Americans from those two massive infringements on the
rights and liberties of the American people?
There is no question about it. And statists were able to achieve those
revolutionary transformations of Americaís governmental system without even
the semblance of a constitutional amendment.
But letís be clear about the purpose of the Constitution and the Bill of
The Constitution brought into existence a federal government whose powers
were limited to the few enumerated in the document. The Framers werenít
naÔve. They knew that most people who got into federal office would not
willingly and eagerly comply with constitutional constraints. The Framers
knew that the thirst for power is oftentimes unquenchable for those who seek
Thatís why they formed the judicial branch as part of the constitutional
structure. Its responsibility would be to enforce the Constitution against
officials in the executive and legislative branches who inevitably would be
doing things in violation of the constitutional constraints. After all, if
federal officials could be trusted to voluntarily comply with constitutional
constraints, there wouldnít have been a need for the judicial branch to have
the power to declare acts of the president and Congress unconstitutional.
Even the Constitution itself wasnít good enough for the American people,
however. They demanded the enactment of the Bill of Rights to make certain
that federal officials in all three branches of the federal government got
the message: Donít jack with our fundamental, God-given rights.
Thus, when officials in the late 1700s and 1800s took actions in violation of
the Constitution, such as the Alien and Sedition Act, no one was surprised or
should have been surprised. Again, everyone knew that federal officials, ever
thirsty for more power, would do such things.
But what mattered was that such actions were not a permanent part of the
system. They were considered to be outside the system.
The difference between then and now is that the socialist-interventionist
state and the national-security state are now considered to be a permanent
part of Americaís federal government system.
So, why didnít the Constitution and the Bill of Rights protect us from the
getting a welfare-warfare state?
Consider a sea wall, one that is designed to protect a community from
extremely high tides. It works for 100 years, keeping extremely large tides,
including those caused by hurricanes, from reaching the community, which
remains high and dry for a century.
But one day, a tsunami hits. The wave is so enormous that it easily overcomes
the sea wall and inundates the community, destroying property and killing
dozens of people.
Can we say that the sea wall failed? No, because the sea wall was never
designed to withstand a tsunami. It was designed only to keep out high tides,
which it succeeded in doing for 100 years.
By the same token, for more than 100 years, the American people lived in the
following type of society: No income tax, no IRS, no Federal Reserve, no fiat
(paper) money, no gun control, no drug laws, no Social Security, Medicare,
Medicaid, Obamacare, or welfare, few economic regulations, no
public-schooling systems, no overgrown military establishment, no CIA, no NSA,
no immigration controls, few trade restrictions, no sanctions or embargoes,
and no European or Asian wars. No system of torture, assassination, secret
prisons, indefinite detention, and extra-judicial execution.
And then came the welfare state and the warfare state, which were supported
by the vast majority of the American people, maybe even exceeding 98 percent.
Americans wanted a welfare-warfare state and there was nothing that was going
to stand in their way, certainly not the Constitution and the Bill of Rights.
In other words, like a sea wall, the Constitution and the Bill of Rights were
designed to withstand cases where, say, 70 percent of Americans wanted
something like mandatory religious indoctrination for children, gun
registration and confiscation, or denial of due process in drug cases, but
have been prevented from doing so on a permanent basis by virtue of the
Constitution and the Bill of Rights. But the Constitution and the Bill of
Rights were never designed to withstand a tsunami of public demand for
statism that reached, say, 98 percent of the public.
Thatís how we got the welfare-warfare state. Thatís how things like socialist
redistribution of wealth, minimum-wage laws, torture, and assassination
became permanent features of Americaís governmental system, without even the
semblance of a constitutional amendmentóbecause the Constitution and the Bill
of Rights werenít designed to withstand a statist tsunami.
Can the tide be reversed? Of course it can. People canít help but notice the
damage that statism has done and is doing to our country, to our sense of
morality, and to our nationís founding principles. Itís quite possible that a
tsunami in favor of liberty is building.