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 applauded law 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 is an excuse. []
  2. Mapp, perhaps ironically, was the result of an attempt by the police to enter a private residence to search for a bomber. []

About Rick

Rick Horowitz is a criminal defense attorney with an extreme dislike of the criminal "justice" system which routinely ignores the Constitution, the Law, and the lives it ruins.

In addition to this blog, Rick also owns Fresno Criminal Defense.


  1. Thank you for writing this.

    -abhoring the police state

  2. Henry Bowman says:

    It’s time to admit, once and for all, that the concept of a constitutional republic is an abject failure.

    The Constitution was an experiment at keeping government in check by writing words on a piece of paper. It didn’t work. It could never have worked.

    As in England, where they have all the official trappings of a monarchy but none of the actual operational characteristics, the United States has kept the facade of being a government run by the people, whereas in actuality it is a plantation where nearly 300-million people labor so that a million or so can rule in comfort.

    That is not to say that our masters do not do hard work. Some of the hard work they do is to explain why “congress shall make no law abridging the freedom of speech” REALLY means “you can speak freely only if you get into this chain-link cage a half mile distant from the event”; “right of the people to keep and bear arms” means “right of the government to have armies”; “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” means “we will tap and trace whatever we please, and order you out of your own homes at gunpoint without telling either you or a judge, and meanwhile you WILL show the officer your papers and answer any questions he asks you”; and “interstate commerce” means… well, anything, as long as it isn’t immobilized in concrete — and even if it is, can you tell us for sure where the bag was made that the concrete came in?

    Jefferson said, “The constitution…is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.” If he were alive today, he would say the same thing about the legislature. How many times have we heard ignorant legislators PUBLICLY ADMIT that “we just write the laws, we don’t worry whether they’re constitutional, that’s up to the courts”?

    The only part of the American design that is worth saving is the set of basic principles behind it of the sanctity of life, liberty, and property. But that’s not even the Constitution, that’s the Declaration. The Constitution is nothing more than an operating manual for a bad implementation of the ideals in the Declaration.

    What needs scrapping is the idea that writing this operating manual on a piece of paper will ever ensure anything about what a government will or will not do — especially when the fox is in sole charge of “interpreting” the lock on the henhouse.

    For one example, the whole “separation of powers” fraud needs to be thrown into the ashbin of history — because it only takes a short while before all the players involved tumble to the fact that the game of “branch against branch” is nowhere near as personally rewarding as the game of “government looters against citizen suckers.” Jefferson: “experience has already shown that the impeachment…is not even a scarecrow… When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated.”

    Franklin knew the constitution alone would not be enough to guarantee a republic without eternal vigilance. The problem is that eternal vigilance is impossible in a collective state. Jefferson went even further — he said we needed a revolution every generation or so to flush out the pipes of the government sewer and keep them smelling fresh. Notice he never said “a revolution to return to the constitution,” he just said “a revolution” — and he made it plain as day that he didn’t believe that people had a right to bind their progeny to any form of government by any signed agreement whatsoever. “No society can make a perpetual constitution, or even a perpetual law… The earth belongs to the living, not to the dead. The will and the power of man expire with his life, by nature’s law… We may consider each generation as a distinct nation, with a right, by the will of its majority, to bind themselves, but none to bind the succeeding generation, more than the inhabitants of another country.” (Or, as many libertarians put it today, “Show me my signature on this ‘social contract’ you claim I agreed to.”)

    Do the following thought experiment: imagine you could wave a magic wand and cause a bloodless revolution, after which you were in charge. Now your life’s goal is achieved — you can return the country to constitutional rule, and at the same time change the “sloppy parts” of the constitution so that evil politicians will not be able to twist things like “interstate commerce” and “general welfare” from then on.

    How exactly would you do that? Would you change the second amendment to say “really never, ever, be infringed, cross your heart and God will strike you dead if you do?” Is there anything at all you can do to save the concept of a constitution that can never again be nibbled to death by opportunistic ducks?


    As the Danes say, “Turning black into white is the life’s work of painters and lawyers.”

    So of what value is the Constitution? Let Jefferson have the last (three) words:

    “Some men look at constitutions with sanctimonious reverence and deem them like the Ark of the Covenant, too sacred to be touched. They ascribe to men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well; I belonged to it and labored with it. It deserved well of its country. It was very like the present; and forty years of experience in government is worth a century of book reading; and this they would themselves say, were they to rise from the dead… Laws and institutions must go hand and hand with the progress of the human mind.”

    “Each generation is as independent as the one preceding, as that was all which had gone before. It has then, like them, a right to choose for itself the form of government it believes most productive of its own happiness; consequently, to accommodate to the circumstances in which it finds itself, that it received from its predecessors; and it is for the peace and good of mankind, that a solemn opportunity of doing this every 19 or 20 years, should be provided in the constitution, so that it may be handed on, with periodic repairs, from generation to generation, to the end of time, if anything human can so long endure.”

    “I have no fear but that the result of our experiment will be that men may be trusted to govern themselves without a master.”

    Maybe that’s what we need to try next.

  3. You have to look at the tipping point too.

    Remember back in the early 20th century when anarchists were blowing things up — the access they had and the lack of police control. Or any number of protests that sparked violence with nary a police officer in sight. That was fairly common in the old days.

    Now though, we have protest after protest against some of the intensity of our security and control measures themselves, for being too complete, too oppressive and at many protests the only violent and offensive people on site are the police (e.g. Officers pinning an Occupy Wall Street protester, spreading the eyelid, and spraying pepper spray at point blank range, casually, without flinching.

    It is downright sick and my opinion is that it breeds discontent — it defeats the purpose of a generally content and peaceful society.

    One you reach that tipping point, if you don’t correct and back off, it just keeps expanding and getting worse.

    I haven’t been all that livid about the way things have been handled in Boston. I think police could easily justify “in hot pursuit” and “exigency” grounds under the fourth amendment for some of it.

    But I do think you have a point and let’s just look at the news today for the questions it raises on this point: Here is an excerpt:

    “Meanwhile, New York’s police commissioner said the FBI was too slow to inform the city that the Boston Marathon suspects had been planning to bomb Times Square days after the attack at the race.

    Federal investigators learned about the short-lived scheme from a hospitalized Dzhokhar Tsarnaev during a bedside interrogation that began Sunday night and extended into Monday morning, officials said. The information didn’t reach the New York Police Department until Wednesday night.”

    Remember, this was the emergency no-miranda interview that happened on Monday. And the FBI didn’t believe there was anyone else who would follow through, any network of which those two boys were connected. Any chance that this emergency wasn’t over, or was ongoing. Why? Well, obviously, if they thought there was a chance for that they would have relayed this to the NYPD immediately. They wouldn’t have waited two days.


  1. Wake up America - Trial Theory - Myrtle Beach criminal defense lawyer Bobby G. Frederick says:

    […] Horowitz at Probable Cause writes that he feels deeply for those who are suffering as a result of the bombers’ attack, […]

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  3. […] he felt enough had been said about that by Scott Greenfield, Mark Bennett, Gideon, Kennedy, and myself, among […]

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