The Bill of Rights was created to state explicitly some of the individual rights that many of its authors thought the Constitution guaranteed and protected implicitly. So how many of these protections to our liberties have President Obama and his administration violated or tried to restrict?
First Amendment — Taking just the free speech provision, the U.S. Supreme Court ruled in Citizens United vs. FEC that the First Amendment prohibits the government from restricting independent political expenditures by corporations, associations and labor unions. And yet Obama has looked for ways to circumvent that decision and even criticized the Court in a State of the Union address.
In addition, the IRS has illegally and unconstitutionally stonewalled and harassed conservative-leaning and tea party groups trying to apply for tax-exempt status. It’s clearly an effort to limit their speech and free association, and yet Obama has recently dismissed the criticisms and supported even tighter restrictions.
Second Amendment — The president put gun-restricting legislation at the top of his political agenda at the beginning of 2013, and it failed miserably. He couldn’t even get many in his own party to go along. Ironically, his efforts boosted National Rifle Association membership from 4 million to 5 million.
Third Amendment — The Supreme Court has never decided a Third Amendment case, which prohibits the quartering of soldiers in an home without the owner’s consent. But a 21st century application of this amendment could be the government’s demand for what is in essence intelligence agency squatting rights on private sector communications companies’ servers.
While that legal theory might sound novel, Andrew P. Morriss and Richard L. Stroup argued in a paper that, under a “living Constitution” theory—which the president clearly holds to—the Endangered Species Act’s requirement that private landowners must allow government-designated endangered species to live on their land runs afoul of the Third Amendment.
Fourth Amendment — Some federal courts have ruled that the Obama administration violated the “unreasonable searches and seizures” clause by using the National Security Agency to “search” Americans’ phone calls, which has now become the subject of international debate—and criticism. Obama wasn’t the first president to rely on the NSA to collect data on U.S. citizens, but his administration took it to a whole new level.
Fifth and Sixth Amendments — Both amendments guarantee due process, which Obama clearly violated in killing Anwar al-Awlaki and his 16-year-old son, Abdulrahman. Both were U.S. citizens, and both were killed, at different times and places, by drone strikes in Yemen.
The government claims that Anwar was a terrorist, and he may have been, but he never got the chance to defend himself against those charges. And given this administration’s challenges with being truthful, it doesn’t get the benefit of the doubt.
As Anwar’s father, also a U.S. citizen, wrote in the New York Times: “The government repeatedly made accusations of terrorism against Anwar—who was also an American citizen—but never charged him with a crime. No court ever reviewed the government’s claims nor was any evidence of criminal wrongdoing ever presented to a court. He did not deserve to be deprived of his constitutional rights as an American citizen and killed.” You don’t have to be an Anwar defender—and I’m certainly not—to be concerned that by killing him and his son without a trial, Obama has trampled their constitutional rights.
Seventh Amendment — One of the constant liberal criticisms of President George W. Bush was that he held enemy combatants in the Guantanamo Bay detention camp in Cuba without ever being given a trial or released. There are constitutional scholars who argue that these non-citizens have no right to a jury trial, but Obama was convinced they did. As president he tried to bring them to the mainland, but he met with congressional resistance, including from his own party. He eventually signed legislation that keeps the camp open and the detainees in place, countering his stated constitutional concerns.
Eight Amendment — The Eight Amendment has to do in part with the imposition of cruel and unusual punishment. When Senator Rand Paul (R-Ky.) delivered his 13-hour Senate filibuster, he was trying to get Obama to agree not to use lethal drone strikes against U.S. citizens on U.S. soil. Obama eventually conceded, but only because his refusal had become a PR nightmare. The public understandably has a lot of trepidation about drones watching and targeting them, especially with a president who thinks it is morally superior to kill people with a drone rather than capturing them and putting them in prison.
Ninth and Tenth Amendments — Both the Ninth and Tenth Amendments deal with limiting the federal government and reaffirming that powers not specifically enumerated in the Constitution reside with the states and individuals.
The president has been so aggressive in expanding federal power—e.g., health care, environmental restrictions, marriage, etc.—that he has singlehandedly ignited a Tenth Amendment backlash, in which states, but also individuals, are increasingly challenging his unconstitutional overreach into spheres that belong to the states and citizens.
This is, of course, only a partial list of the president’s constitutional infractions. There are many others that don’t necessarily cross the Bill of Rights, such as his decision that he has the power to determine when the Senate is and is not in session. The one bright spot to come from Obama’s power grab is that millions of Americans are reexamining the Constitution for themselves, and they may act on that rediscovery in 2014.