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We have all been born and raised under a government that wields the power of assassination. State-sponsored assassinations at the hands of the U.S. government — and specifically the Pentagon and the CIA — have become a rather ho-hum affair. They have become fully accepted as part and parcel of American life.
Yet, when we stop to reflect on this phenomenon, we can’t help but come to the realization that this is truly an extraordinary power. It is an omnipotent power that enables the federal government to snuff out a person’s life simply on a determination that he is a communist, a terrorist, a threat to “national security,” or whatever other designation the government establishes.
The Framers and the American people in 1789 were totally opposed to living under a government that wielded the power of assassination. Don’t forget, after all, that after the break from England, Americans had lived under the Articles of Confederation for some ten years. Under the Articles, the federal government’s powers were so weak that it didn’t even have the power to tax, much less the power to assassinate.
That’s the way our American ancestors wanted it. They believed that the biggest threat to their freedom and well-being lay not with some foreign regime but rather from their very own government. That’s why they chose to live under a government with very few and very limited powers. In doing so, they felt safer and more secure.
When the delegates met in Philadelphia in what became known as the Constitutional Convention, it was with the purpose of simple amending the Articles to make the system work more efficiently. Instead, they came up with a proposal for a different type of governmental system — a limited-government republic — which would replace the Articles.
The American people were leery because the federal government under this new system would have more powers, including the power to tax. They were concerned that this new government would end up destroying their freedom and their well-being.
But proponents of the Constitution assured Americans that this would not be a government that wielded general powers — that is, powers that would enable federal officials to do whatever they wanted in the best interests of the nation. Instead, its powers would be limited to the few powers enumerated in the Constitution itself.
The American people were especially concerned about the power of assassination. The last thing they wanted was to live under a government that wielded the power to snuff out people’s lives for arbitrary reasons. In fact, if Americans had been told that this new federal government would wield the power of assassination, they never would have approved the deal. They would instead have continued operating under the Articles of Confederation.
Americans ended up approving the deal and accepting the new government under the assumption that its powers would be limited to those enumerated in the Constitution, which did not include the power of assassination.
To ensure that federal officials got the message, however, Americans demanded the enactment of the Bill of Rights, which included an express prohibition against assassination within the Fifth Amendment, which reads in part: “No person shall be deprived of life without due process of law.”
Due process of law is a term that stretches all the way back to Magna Carta in the year 1215. Over many centuries of resistance by British subjects against their own kings, due process came to encompass two principles: notice and trial.
Thus, under the Fifth Amendment before the federal government could assassinate someone, it would be required to provide him with formal notice of the offense for which they wish to assassinate him and then guarantee him a trial to determine whether he in fact was guilty of committing the offense.
Notice something important about the Fifth Amendment: Its protections apply to everyone, not just American citizens.
With the Sixth Amendment, the accused could elect to have a jury of ordinary citizens, rather than a judge or tribunal, determine his guilt or innocence. Our American ancestors simply didn’t trust judges or tribunals to make that decision.
Since a jury’s verdict of acquittal was final and non-appealable, juries were also empowered with the ability to judge the law itself in criminal cases. If they found the purported offense unconscionable, they could elect to acquit even if the accused had actually committed it, in which case there was nothing the judge or the government could do about it. The accused would walk out of the courtroom a free person.
After World War II, the federal government was converted into a third type of governmental system — a national-security state. Under this type of government, the federal government — specifically the CIA and the Pentagon — acquired the omnipotent power of assassination.
The conversion to a national-security state was justified under the rubric of the Cold War. The idea was that since the Soviet Union and the communist world were able to operate with omnipotent powers, including the power of assassination, the only way to prevent America from being conquered by the communists would be to adopt their same type of governmental structure — a national-security state, which came with the omnipotent power of assassination.
The conversion to a national-security state was done through legislation, not through constitutional amendment. Nonetheless, owing to the overwhelming and ever-growing power of the national-security establishment — i.e., the military, the CIA, and the NSA — the legislative conversion to a national-security state was held to operate as a nullification of the Fifth Amendment.
Today, the Pentagon’s and the CIA’s power of assassination is omnipotent. They are the final determiners of whether any particular person is going to have his life snuffed out. Their power of assassination is non-reviewable by any court in the land, including the nation’s highest court, the U.S. Supreme Court.
And that’s how we have come to live under omnipotent government, a type of governmental structure that wields the power to assassinate anyone it wants with impunity, simply by designating a person a communist, a terrorist, a threat to “national security,” or whatever.
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Jacob G. Hornberger is founder and president of The Future of Freedom Foundation. He was born and raised in Laredo, Texas, and received his B.A. in economics from Virginia Military Institute and his law degree from the University of Texas. He was a trial attorney for twelve years in Texas. He also was an adjunct professor at the University of Dallas, where he taught law and economics. In 1987, Mr. Hornberger left the practice of law to become director of programs at the Foundation for Economic Education. He has advanced freedom and free markets on talk-radio stations all across the country as well as on Fox News’ Neil Cavuto and Greta van Susteren shows and he appeared as a regular commentator on Judge Andrew Napolitano’s show Freedom Watch. View these interviews at LewRockwell.com and from Full Context. Send him email.
