Ten years after the opening of the prison at Guantanamo, I'm asking where are those religious right activists and tea partiers who want to return America to standards they think the Founders intended.
Proponent of "Christian American History" David Barton assumes the Founding Fathers had a single discernible intention that we can know today and that we are bound by today. He claims that they were referring to the "right to life" in the abortion debate when they sought to protect life, liberty and property. He has argued that the prohibition on quartering soldiers in the Third Amendment was recognition of the biblical "sanctity of the home." He says that the Founders settled the controversy over human origins in favor of creationism. He thinks the relative silence on God/religion in the Constitution is over-ridden by the Declaration of Independence (because it contains the phrase "inalienable rights endowed by the creator") and he thinks the First Amendment religion clauses apply only to Christians and Jews (and maybe, but probably not, Muslims). You can read what I have written about him here and here.
The tea partiers and the religious right follow Barton and insist that their understanding of the Constitution is the same as the Founders'. They invoke this as their source of legitimacy: "Return to the Constitution!" They cry.
Yet exactly half of those first 10 amendments in the Constitution, that we call the Bill of Rights, explicitly protect the rights of the accused. They limit searches and seizures by government; they prohibit incarceration without due process; they require a speedy trial by jury and the right to confront witnesses; and they prohibit excessive bail and cruel punishment.
There is little ambiguity about the revered Founders' views on these matters; these protections were, indeed, designed to limit the power of an over-reaching abusive government. And indeed, that they thought these rights were "inalienable" means that they are not just rights that American citizens have; they are rights human beings have. Yet the loudest proponents of limited government, those who would elevate the Founding Fathers to a level some might consider idolatry, do so only when it suits their interests.
Just as they drop their advocacy for limited government when it comes to subsidies and support for their preferred forms of family, the regulation of recreational use of substances they oppose, and government with guns sent all around the world, we hear no call from them to look to the intentions of the Founding Fathers on imprisoning people who have not been charged with crimes and have had no chance to defend themselves. On this they are absolutely silent about the Founders and limited government.
But it's not just the Founding Fathers who sought to protect the innocent from over-zealous prosecution, this principle is present even the "eye for an eye" books of the Old Testament/Hebrew Bible. In Genesis (18:23-25) Abraham successfully challenged God on the injustice of punishing the innocent along with the guilty.
"Will you sweep away the righteous with the wicked? What if there are fifty righteous people in the city? Will you really sweep it away and not spare[a] the place for the sake of the fifty righteous people in it? Far be it from you to do such a thing -- to kill the righteous with the wicked, treating the righteous and the wicked alike. Far be it from you! Will not the Judge of all the earth do right?"
Its seems that Barton and his tribe only invoke the Bible when it suits their interests too. We could use a little more literalism on this one.