Wednesday, June 6, 2018

The Emergency Destruction of American Liberty

By Jacob G. Hornberger - June 06, 2018 at 10:13AM

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Emergencies are the time-honored method by which people lose their freedom. That’s because public officials use emergencies as a way to acquire totalitarian powers, under the rationale that they need such powers to keep people “safe.” Of course, officials usually make it clear that the totalitarian powers will only be “temporary.” As soon as the emergency is over, they say, the powers will be canceled and things will return to normal.

During emergencies, much of the citizenry becomes afraid, very afraid. Being kept safe zooms to near the top of many people’s priority list. They become willing, even eager, for the government to acquire totalitarian powers to keep them safe, especially since the use of such powers is temporary anyway.

One of the best examples of this phenomenon was the Reichstag Fire in Nazi Germany, when the German Parliament building was made the target of a terrorist attack. After the fire-bombing of the building, German leader Adolf Hitler approached the Reichstag and requested totalitarian powers to deal with the terrorist threat facing Germany. After considerable discussion and debate, the legislature gave Hitler the powers he was seeking to wage a war on terrorism.

It was made clear, however, that the totalitarian powers granted to Hitler by the Enabling Act were to be temporary only. They would automatically expire after a set period of time. And sure enough, Hitler regularly returned to the Reichstag and secured renewals of such powers up until the time of his death.

Emergencies are one of the principal ways that the American people have lost their freedom. One of the best examples is the economic emergency of the Great Depression.

When the Constitution called the federal government into existence, it set forth what the lawful money of the United States would be — gold coins and silver coins. The federal government was not authorized to issue paper money, and the states were expressly prohibited from making anything but gold coins and silver coins legal tender.

Then the Great Depression hit, and President Franklin Roosevelt and Congress used the emergency as a way to completely change the monetary system that had been in use, pursuant to the Constitution, for more than a century. Roosevelt ordered everyone’s gold coins nationalized and announced that the United States would now have a paper-money monetary system. Everyone was required to deliver his gold coins to the federal government, and anyone caught owning gold coins was subject to a federal felony prosecution.

Ordinarily, it would take a constitutional amendment to change the nation’s monetary system. Obviously, that is an arduous process. But the economic emergency of the Great Depression was so large that Roosevelt and Congress were able to change the monetary system without going the amendment route. That’s because people were very afraid, and Roosevelt was promising to keep them safe with a paper-money system.

Interestingly, this drastic change in the nation’s monetary system did not turn out to be temporary. Once the Great Depression was over, the federal government did not return to a gold-coin standard. The drastic change to a paper-money standard became a permanent part of America’s governmental system.

There is something else important to keep in mind about emergencies: The federal courts, which have the responsibility of declaring illegal acts and laws unconstitutional, oftentimes go silent during emergencies. That’s because federal judges become as scared as most everyone else. They are not about to stand in the way of totalitarian powers that are being acquired and exercised in the attempt to keep people “safe.” Thus, the federal courts upheld the constitutionality of FDR’s nationalization of gold and his permanent conversion of the federal government to a paper-money standard.

The same sort of judicial silence took place in Chile after the Pinochet coup in 1973. Pinochet’s goons rounded up 60,000 people and proceeded to torture, rape, disappear, or execute thousands of them. Chile’s federal judiciary went silent, deferring to Pinochet’s acquisition and exercise of totalitarian powers.

The same phenomenon, of course, took place after the 9/11 attacks. Pointing to the terrorist emergency and the need to wage a war on terrorism, President Bush and his national-security establishment acquired such totalitarian powers as military arrests of civilians, torture of prisoners, indefinite detention, secret surveillance, and trial by military tribunal. As in Chile, the U.S. federal courts went silent or supportive after the 9/11 attacks, deferring to the president, the Pentagon, the CIA, and the NSA efforts to keep people “safe’ during a time of “emergency.”

An interesting aspect of Bush’s acquisition of emergency powers was that he didn’t go to the Congress and ask to be given such powers, as Hitler had done with the Reichstag after the terrorist attack on the Reichstag building. Instead, Bush simply held that since the federal government was now going to have to wage a war on terrorism (as Hitler had done), the president, as a “commander in chief” during wartime, now automatically wielded such totalitarian powers.

Finally, it should be noted that the people who crafted the Constitution and the Bill of Rights declined to insert an emergency exception to the prohibition on the federal government to adopt and exercise totalitarian powers. Such an exception was the last thing they wanted, since they understood that emergencies are when people are most likely to lose their freedom at the hands of their own government.

Reprinted with permission from Future of Freedom Foundation.

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