The U.S. Constitution: an 18th century Patriot Act?

To be frank, 9/11 scared the hell out of the American public. How could this have happened? Was it part of a larger problem? Could it have been prevented? All of these questions were being asked in an atmosphere of conflicting information and a general feeling of helplessness. As with most crises of this magnitude, advocates for strong leadership—who were perhaps looked upon with ridicule or suspicion prior to that moment—found their way to the forefront of the quick-fix circles. Their solution was fairly standard: strengthen the powers of the central government. This combination of uncertainty and promises of security through consolidation led to the adoption of the Patriot Act —a document now derided in many quarters as the product of fear-mongering and creeping despotism.

What appears to escape the popular imagination is that the federal government itself was established under similar circumstances. Like the Patriot Act, the US Constitution was hastily debated and implemented in the aftermath of a crisis. As such, both the Constitution and the Patriot Act have a few things in common.

First, both documents were meant to correct well-known and legitimate problems with the existing system. According to the Department of Justice, the Patriot Act was intended to update anti-terrorism laws and break down communication barriers between federal agencies [1]. Likewise, the US Constitution was meant to strengthen the central government’s ability to protect Americans from insurrection, interstate rivalry, and foreign intrigue [2].

Second, the crises the Constitution and Patriot Act were meant to address had already been weathered by existing mechanisms. In the case of the former, Shays’ Rebellion had been put down by the Massachusetts state militia and steps were being taken to address the chaos of interstate commerce. Similarly, pre-9/11 institutions had traced the attacks to the Al-Qaeda network and had successfully overthrown the Taliban government in Afghanistan.

Third, the powers granted under both the Constitution and the Patriot Act represented the long-held views of particular interest groups. In 2001, the neo-conservatives—which had been lobbying for a more imperial American foreign policy since the fall of the Soviet Union—painted the 9/11 crisis as an example of federal weakness, countering any opposition to their emergency measures as encouraging further attacks [3]. In 1787, the supporters of the Constitution—known to posterity as Federalists—represented various commercial interests that wanted to recreate British mercantilism. As one anti-federalist writer at the time put it, all the distresses and difficulties [we] experience, proceeding from various causes, have been


ascribed to the impotency of the present confederation, and thence [the people] have been led to expect full relief from the adoption of the proposed system of government; and in the other event, immediately ruin and annihilation [4].


I know what you’re thinking at this point: he’s some sort of anarchist or whack-job conspiracy theorist who hates America. Nothing could be further from the truth. In fact, I think the individuals involved with both documents were just as much patriots as they were politically dangerous. Strength is sexy. It is comforting to think that someone or something has all the answers. But of course they rarely do.

Increasing the power of a central authority also increases the destructive impact of its mistakes and excesses. The Patriot Act, for example, certainly streamlined anti-terrorism tactics, but it has also led to dubious, possibly illegal, federal behavior. All of which previous institutional “barriers” had been erected to prevent. Likewise, the Constitution allowed the thirteen states to speak with one voice abroad, but it also gave rise to a period of military dictatorship (1861-1877) and a consolidated federal empire in all but name [5]. The Articles of Confederation—as flawed as they were—had been designed to prevent the central government from overstepping its bounds in this manner.

I just don’t get the double-standard. The Patriot Act is readily dismissed as the product of an executive power grab. The Constitution, however, is revered as a sacred document bequeathed to us by political geniuses. Both were products of a mix of fear, miscalculation, good intentions, and special interests. Nothing created by man should ever be viewed as sacred or infallible—especially if it was devised and implemented with unusual haste. If change is truly what Americans seek, then they must come to terms with the systemic roots of current dilemmas and reexamine the existing approach to federal union.