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Life in a Post-Constitutional World

As I watched the unfolding of events in Boston this past week, I have several thoughts on my mind. Two have been pre-eminent:

  1. I feel deeply for those who have suffered losses of life, and limb, which means those directly touched by the bombs’ effects.
  2. I fear deeply for those who have suffered a loss of liberty, which is all the rest of us.

I don’t know when, or exactly how, we’ve come to where we are today. I mean, I have my theories. What happened to us hasn’t happened overnight; it’s been part of an inexorable execration of the constitutional principles we’ve been trained to believe do nothing but “protect criminals.”

However it happened, our Constitution can be variously, metaphorically, described as being in tatters, or shredded, or just as strong as paper ever is against an overreaching power-grab by the government.

Many believe it started with the “war” on drugs which has its roots in the late 1960s, and early 1970s.

Somehow, I think things must have started to change before that. Why did we need to amend, or change, the Constitution in order to prohibit alcohol — a completely failed experiment, by the way, which brought us modern organized crime and started the shredding of constitutional principles — but by the time we decided to have a Prohibition of marijuana and other drugs, we didn’t need to change the Constitution?

Because the government learned its lesson. Amending the Constitution — both to tighten the screws and then, having realized the failure of Prohibition, loosening them — had proven difficult. It would be easier to just pretend the Constitution wasn’t a hindrance to the expansion of governmental authority over citizens.

Appropriately, former-General Eisenhower was the first sitting U.S. President to call for a war on drugs in 1954, with the establishment of the U.S. Interdepartmental Committee on Narcotics. (Technically-speaking, Nixon allegedly coined the phrase “war on drugs,” but the New York Times reported Eisenhower’s establishment of the ICN as “a new war on narcotic addiction.”)

As with all wars, things started getting messy. Just as the government had ignored the Constitution in taking upon itself the right to regulate what people could, and could not, put into their bodies, so was it ignored when it came to the way in which this new “war” was conducted. I mean, it was a war, after all. And in war, who has time for the niceties of the Law?

To be fair — perhaps because until the Eisenhower administration there was no outright war waged by cops against American citizens — law enforcement did not know they had to honor the Constitution.[1]

The problem was ironically heightened when the Supreme Court began to inform them differently.

Suddenly, we had Mapp v. Ohio. [2] Gideon. Miranda.

Criminals. Going free. Based on “technicalities” of the United States Constitution.

And so the drumbeat towards ignoring constitutional blockades surrounding citizens’ rights became louder.

Blame it on the Supreme Court.

Or drugs. As Gore Vidal wrote in Vanity Fair in 1998:

Drugs. If they did not exist our governors would have invented them in order to prohibit them and so make much of the population vulnerable to arrest, imprisonment, seizure of property, and so on.

At any rate, the process appears now to be all-but-complete: we are living in a post-constitutional world.

I realized this when, after a citywide lockdown of one of the largest cities in America during which reportedly hundreds of warrantless searches (if not more) of people’s homes occurred, crowds stood in the streets and applaudedlaw enforcement officers.

Although the Dorner affair provided a preview, the lockdown was — so far as I know — unprecedented in U.S. history.

An article in the Jerusalem Post noted:

Millions of residents of the Boston metropolitan were ordered to stay in a “lockdown” on Friday as police and the FBI hunted down the second of the Boston Marathon bombers.

Politico, with its article, “Boston lockdown: the new normal?,” told of the completeness of the lockdown:

Local authorities told the city and nearby suburbs to “shelter in place” throughout the day and into the evening. They closed businesses, shuttered government buildings and suspended all public transportation in the metro area.

The Bangkok Post — yes, the whole world was watching how the allegedly-most-free-country-in-the-world conducted itself during this emergency — stated:

Thousands of police went “door-to-door, street-to-street” in the suburb of Watertown hunting for 19-year-old Dzhokhar Tsarnaev, who is alleged to have carried out Monday’s deadly Boston Marathon attack with his brother Tamerlan.

The fourth-most-densely -populated area of the United States ground to a halt, and citizens were told to stay inside, some of them to wait until the police arrived and went through their homes.

This was no gentle “may-we-come-in-mind-if-we-look-around “ search, either. It was one step short of The Siege.

All without constitutional authority. All without warrants. All demonstrating the completeness of America’s transformation into a police state — or, to make much more clear what this means, a police-owned state.

We are not Americans anymore. We are not by any shade of the imagination the land of the free. Your freedom ends the moment a police officer says that it does, whether you are doing anything wrong, or just in the wrong city at the wrong time. Perfectly legal behavior does not exempt you.

Even more bizarre, as the Jerusalem Post article states:

[C]onsider[] that from Monday – when the bombings took place – until Friday, there were two terrorists on the loose and there was no consideration of a lockdown. Now, with one terrorist still free there is a lockdown? Shouldn’t the opposite have happened?

That is, if it was going to happen at all — and, of course, I contend that it was unconstitutional and should never have happened — if it was going to happen at all, then why, when we didn’t have any clue who these guys were, while they were still running around with (allegedly) bombs strapped to themselves, did the entire city of Boston not have to be on lockdown then? Because the police had not yet decided that everyone’s freedom should be curtailed.

As I told you, your freedom ends the moment a police officer says that it does.

And now, the surviving alleged bomber has been caught. They seem to have the right guy. But, then, many of us thought that before.

So now that he’s been caught, we return to being a nation with a Constitution, filled with citizens who have constitutionally-protected rights, right?

Of course we don’t. We double down.

Some Republicans are urging the Obama administration to classify Tsarnaev as an enemy combatant, rather than trying him as a civilian.

Enemy combatant.

Sens. Lindsey Graham (R-S.C.) and John McCain (R-Ariz.), said Saturday in a joint statement that alleged Boston Marathon bomber Dzhokhar Tsarnaev should be denied a defense attorney and declared an “enemy combatant.”

They added in a statement on Graham’s Facebook page, “It is clear the events we have seen over the past few days in Boston were an attempt to kill American citizens and terrorize a major American city.”

Hey, why not? Our courts are too busy right now, anyway, what with all the people who have been arrested for trying to kill American citizens. Or beat them up. Or steal from them. Or rape them. I mean, there’s a whole lot of criminals out there already doing things against American citizens and then being dragged into court to answer for it.

We really can’t afford to have one more U.S. citizen dragged in to court to answer for his crimes against other U.S. citizens.

We can no longer deny that hindrance to instant gratification of our bloodlust: the United States Constitution.

But we will get used to it.

Amar’s house hadn’t yet been searched, but he and another neighbor, who was sitting astride a bicycle, watched as cops went through the houses closer to Mount Auburn Street. “You know the philosopher Žižek?” the other man said, remembering that, after the September 11 attacks, Slavoj Žižek wrote a book called Welcome to the Desert of the Real, in which he observed that the actual consequences of attacks like the Boston Marathon bombing are far less significant than the symbolic consequences. “In the end, three people died because of the bombing,” the neighbor noted. “But the real result is that we become acclimated to stuff like this.” He gestured across the street, as about ten cops in camouflage SWAT gear swarmed outside a house, holding rifles, preparing to go inside.

Welcome to life in a post-constitutional world.

  1. And for the government, unlike for you and me, ignorance of the law isan excuse. [↩]
  2. Mapp, perhaps ironically, was the result of an attempt by the police to enter a private residence to search for a bomber. [↩]