Americans oftentimes forget that the Constitution called the federal government into existence and, equally important, limited its powers to those enumerated in the Constitution itself. In fact, the only reason our American ancestors accepted the Constitution was because they were assured that its powers would be few, limited, and extremely restricted.
Thus, the Constitution did not call into existence a government with inherent powers, like the traditional “police powers” that characterized governments throughout history. If it had done that, our American ancestors would never have approved it. Instead, it was clearly understood that the only powers that the federal government could legally exercise were those enumerated in the Constitution. If a power wasn’t enumerated, it could not legally be exercised.
This is what was meant by the term “limited-government republic.” For the first time in history, a people had limited the powers of their own government by the document that called the government into existence.
If Americans didn’t like that system, they could change it by amending the Constitution, which provided for the means to do that.
Our American ancestors were still not satisfied. They were still extremely concerned about the possibility that the federal government could end up wielding omnipotent, tyrannical powers over them, similar to those that had been wielded and exercised by King George.
They were particularly concerned that the president, even though democratically elected, might decide to use his power, especially in combination with the military, to arbitrarily kill people.
The advocates of the Constitution did their best to put their minds at ease. They pointed out that the Constitution did not give the federal government the power to arbitrarily kill people. Therefore, since such a power wasn’t enumerated, it could not legally be exercised.
Moreover, given the fierce opposition to “standing armies,” it was also understood that the president would never have a large military force to impose that type of tyranny on the American people, a tyranny that would involve the arbitrary killing of people.
Those arguments were still not sufficient for the American people. As a condition for accepting the Constitution, they demanded a Bill of Rights, which actually should have been called a Bill of Prohibitions because it doesn’t grant rights at all. Instead, it expressly prohibited the federal government from infringing or destroying rights. The Second Amendment guaranteed the right to keep and bear arms, which ensured that people would have the means by which to resist the tyranny of their own president and his army.
The Fifth Amendment prohibited the federal government from depriving any person of life without due process of law. Stretching all the way back to the Magna Carta in 1215, the term due process had come to mean, at a minimum, the dual requirement of formal notice and the right to be heard before being assassinated or executed.
Notice something important about the Fifth Amendment: Its protection applies to “persons,” not just American citizens. Our American ancestors ensured that the president would be precluded from killing anyone without due process of law — that is, without formal notice (e.g., an indictment) and the right to be heard (e.g., a hearing or trial).
Thus, under our system of government, there was simply no power of assassination, given that assassination obviously involves the taking of life without due process of law.
Central to America’s constitutional form of limited government was the judicial branch of the government. Its job was to enforce the Constitution against the other two branches of the federal government. Thus, if a president were to begin assassinating people, the judicial branch’s responsibility would be to declare such action in violation of the Constitution and to put a stop to it through injunctive relief.
The same thing applied to Congress, which wielded the constitutional power of impeachment. If a president and his minions began assassinating people, it would be the responsibility of Congress to impeach him and remove him from office.
That was our system of government for around 150 years. That’s a very long time. For a century and a half, the president had no power of assassination. I’d say that’s a very big success story.
That all changed in the late 1940s, when the structure of the federal government was changed from a limited-government republic to what is called a national-security state, which consisted of the Pentagon, a vast, permanent standing army, the CIA, and the NSA — that is, precisely the type of governmental structure our American ancestors had rejected. Federal officials justified this monumental conversion by claiming that it was necessary to protect the United States from a communist takeover.
Interestingly enough, however, they effected this revolutionary change without even the semblance of a constitutional amendment, which was required by the Constitution. Why is that important? Because as a practical matter, a national-security state comes with the automatic acquisition of omnipotent, totalitarian-like, dark-side powers, including the power of assassination.
Thus, as a practical matter, the conversion to a national-security state operated as a de facto amendment of the Constitution, one that amended the Fifth Amendment — but without a constitutional amendment. Once the conversion took place, the president and his national-security establishment wielded the omnipotent, dark-side power to assassinate anyone they wanted, so long as they determined that the victim posed a threat to “national security.”
Given the enormous power of this new vast, permanent, and powerful standing army, the U.S. Supreme Court and the rest of the federal judiciary immediately made it clear that they would never declare any action of the national-security establishment unconstitutional, including the newly acquired power of assassination. The reason for this judicial deference, notwithstanding its clear violation of the Fifth Amendment, was that the judiciary knew that it lacked the ability to enforce its rulings against the omnipotent power of the Pentagon, the vast military-intelligence establishment, the CIA, and the NSA.
Thus, that’s how the American people ended up living in a society in which the president and his vast, all-powerful national-security establishment wield the omnipotent dark-side power to assassinate anyone they want, foreigner or American. That’s obviously not what our American ancestors had in mind when they approved the establishment of the federal government.
Reprinted with permission from Future of Freedom Foundation.