John Whitehead's Commentary

“The problem is whether the American people have loyalty enough, honor enough, patriotism enough, to live up to their own Constitution.”—Frederick Douglass

There was a time when thinking for yourself was considered a virtue.

These days, it can make you a political outcast.

Question the Democrats, and you’re accused of being a Republican. Question the Republicans, and you’re branded a Democrat. Criticize Donald Trump, and you’re dismissed as suffering from Trump Derangement Syndrome. Criticize his opponents, and you’re accused of enabling authoritarianism.

Somewhere along the way, Americans seem to have forgotten that independent thought is not an act of political betrayal. Neither is holding government officials accountable to the Constitution.

Yet we have become so accustomed to viewing every political controversy through the narrow lens of party loyalty that the most important question is often the last one we ask: is what the government is doing actually constitutional?

It shouldn’t matter whether the president is a Republican or Democrat, whether the policy is popular or unpopular, or whether the people being targeted are citizens or immigrants, conservatives or liberals, political allies or sworn enemies.

The Constitution is not supposed to change depending on who occupies the White House.

Neither should our commitment to defending it.

And yet, with another national election approaching, Americans are once again being asked to choose sides in a political battle in which accusations of treason, threats of prosecution, allegations of voter fraud and competing claims of patriotism threaten to drown out the principles that make constitutional self-government possible in the first place.

Perhaps the most troubling aspect of this political circus is not merely the conduct of those in power, but the willingness of so many Americans to excuse, rationalize or even celebrate abuses of power when they are committed in the name of a political cause they support.

This is how constitutional government begins to lose its meaning: not necessarily through a single dramatic overthrow, but through the gradual abandonment of principles that were supposed to apply to everyone.

Free speech becomes a right worth defending only when the speaker agrees with us. Due process becomes a technicality when the accused belongs to a group we distrust. Government surveillance becomes acceptable when it targets our political opponents. Executive overreach becomes decisive leadership when exercised by our preferred president.

And the Constitution, rather than serving as a restraint on government power, becomes just another weapon in the partisan arsenal.

The irony is that Americans who would never willingly surrender their own freedoms can become remarkably indifferent when those same freedoms are denied to someone else.

This is the danger of treating politics as a team sport: winning becomes more important than doing what is right, loyalty becomes more important than truth, and the ends are used to justify almost any means.

It also explains why the government keeps getting away with so much.

Every administration inherits the powers its predecessors accumulated. Every president discovers new ways to stretch the boundaries of executive authority. Every political party, once in power, finds reasons to defend practices it condemned when the opposition was in charge.

And every time Americans look the other way because their preferred politicians are calling the shots, they help establish precedents that will eventually be used against them.

The Constitution was intended to prevent precisely this kind of government by political convenience. Its protections were never supposed to depend on who holds power, who is popular, or who happens to be on the receiving end of government force.

Yet this is precisely the kind of government by political allegiance that Americans are being conditioned to accept.

Consider what is happening as the country prepares for another national election.

President Trump, who has spent years casting doubt on the legitimacy of elections he does not win, is once again raising the specter of widespread voter fraud while his administration uses the considerable power of the federal government to challenge state election practices and threaten election officials with prosecution.

In California, the Justice Department has demanded action against thousands of registered voters the Trump administration alleges are noncitizens—even going so far as to carry our raids and arrests as part of its so-called “Operation Protect the Vote,” while Trump has threatened election officials with lengthy prison sentences if they count ballots from individuals the administration contends are noncitizens.

Federal prosecutors have also announced criminal charges against 28 lawful permanent residents accused of illegally registering or voting.

To be clear, noncitizens are prohibited from voting in federal elections, and credible evidence of election fraud should be investigated and prosecuted. But individual allegations of unlawful voting are not evidence of a widespread conspiracy to steal an election.

Indeed, the available research offers little support for claims of widespread noncitizen voting.

In a study of the 2016 election, the Brennan Center for Justice examined 42 jurisdictions responsible for more than 23.5 million votes and found only about 30 suspected incidents of noncitizen voting—a minuscule fraction of the ballots cast.

Nevertheless, the rhetoric surrounding election fraud has grown increasingly threatening, raising concerns about the potential for federal enforcement authority to intimidate election officials, discourage lawful voters and undermine confidence in the electoral process itself.

This is where the constitutional question becomes unavoidable.

The government has a legitimate responsibility to protect the integrity of elections. It does not have unlimited authority to interfere with the voting process, threaten public officials or place political advantage above the rights of the electorate.

The right to vote means little if the government can manipulate the rules, intimidate those administering elections, or cast doubt on legitimate results whenever the outcome threatens those in power.

Nor should Americans be willing to accept such conduct merely because they support the political party directing it.

Imagine the reaction if a Democratic president threatened Republican election officials with imprisonment, deployed federal resources against states controlled by political opponents, or suggested that elections producing unfavorable results were inherently illegitimate.

Would the constitutional concerns be any less serious? Of course not.

The same standard must apply regardless of who occupies the White House.

Yet elections are only one front in a much larger struggle over the limits of government power and the extent to which Americans should overlook government misconduct when it serves their political interests.

The same double standard emerges when federal agents detain people without adequate procedural protections, when government officials threaten journalists for unfavorable reporting, when surveillance powers are turned against political opponents, or when executive orders are used to circumvent constitutional restraints.

Once Americans accept that certain people are entitled to fewer rights because of who they are, what they believe or whom they support, they have already begun dismantling the constitutional protections on which their own freedoms depend.

The question, then, is not merely whether government officials have overstepped their authority, but whether Americans are willing to hold them accountable when they do.

The Constitution is not a political manifesto, a campaign slogan, or a convenient weapon to be wielded against one's opponents.

It is the law of the land.

And every public official who takes an oath to support and defend it has an obligation to honor that oath, even when doing so interferes with political ambitions, party loyalties or the demands of those in power.

The oath is not to the president. It is not to Congress. It is not to the Republican Party or the Democratic Party.

It is to the Constitution.

Yet somewhere along the way, Americans have allowed allegiance to political parties and personalities to become more important than allegiance to the constitutional principles that are supposed to govern us all.

Consider former Congressman Ron Paul.

Throughout his years in Congress, Paul earned the nickname “Dr. No” for frequently voting against legislation he believed exceeded the federal government’s constitutional authority, even when that legislation was popular or politically advantageous.

What a novel concept.

Imagine what might happen if Americans approached elections with that same question in mind.

What if we stopped asking candidates whether they were sufficiently Republican or Democrat, conservative or liberal, loyal to Trump or opposed to him, and started asking whether they intended to uphold the Constitution?

What if we judged presidents not by how aggressively they wield executive power, but by how faithfully they respect its limits?

What if we demanded that members of Congress do more than rubber-stamp the president’s agenda or obstruct the opposition’s, and instead fulfill their obligation to serve as an independent check on unconstitutional government action?

What if we insisted that government officials defend free speech even when they despise the speaker, uphold due process even when they condemn the accused, and respect the right to vote even when they fear the outcome?

And what if Americans themselves refused to excuse conduct by their preferred political leaders that they would condemn in their opponents?

What a refreshing—and revolutionary—concept.

Of course, there will always be disagreements over what the Constitution permits and prohibits. The Founders themselves disagreed over the proper scope of federal authority. Those disagreements are part of constitutional self-government.

But there is a world of difference between debating the meaning of the Constitution and treating its restrictions as obstacles to be ignored whenever they interfere with a political agenda.

The real test of constitutional principle is not whether we defend our rights when they are threatened. It is whether we are willing to defend the rights of others when doing so comes at a political cost.

After all, it takes little courage to defend free speech when we agree with what is being said. It takes considerably more to defend the speaker whose views we find offensive.

It is easy to insist on due process when the accused is someone we admire. It is harder when the accused is someone we despise.

And it is easy to demand restraints on government power when our political opponents are in charge. The real challenge comes when those restraints stand in the way of policies we support.

That is when constitutional principles cease to be abstract ideals and become a measure of our commitment to liberty.

Because a Constitution that protects only the people we like, the causes we support, and the political leaders we favor is no Constitution at all.

It is merely another instrument of power.

This is how a nation that prides itself on freedom can gradually become accustomed to tyranny: not because the Constitution has been abolished, but because the people charged with defending it have learned to make exceptions whenever it suits them.

Too often, Americans have confused political victory with constitutional government.

It is a dangerous bargain.

As I make clear in my book Battlefield America: The War on the American People and in its fictional counterpart The Erik Blair Diaries, the powers we tolerate in the hands of politicians we trust will eventually pass to politicians who cannot be trusted. The constitutional protections we deny to others today may be the very protections we need tomorrow.

This is why independent thought matters.

A free people must be willing to question authority, challenge political orthodoxies, reject convenient falsehoods and hold their own leaders accountable—not merely when doing so is easy or popular, but especially when it is neither.

That does not make us disloyal. It makes us citizens rather than subjects.

And if demanding that government officials obey the Constitution makes us political outcasts, perhaps political independence is not such a bad place to be.

After all, the real betrayal of America is not questioning those in power. It is surrendering our principles to keep them there.

No constitutional safeguard can survive indefinitely when the people themselves stop insisting that it be honored.

The Constitution can’t protect you if you don’t protect it.

WC: 1967

ABOUT JOHN W. WHITEHEAD

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.

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