When U.S. Sen. Rand Paul, R-Ky., filibustered in March, the old-fashioned way, talking for approximately 13 hours and questioning whether the president had the constitutional authority to use unmanned drones to kill American noncombatants on U.S. soil, he unnerved many politicians and talking heads.
It seemed more than a few on the left and in the Republican Party deemed Paul’s reasoning foolish and possibly un-American. Sen. John McCain, R-Ariz., for one, considered Paul’s filibuster a “disservice.”
Many on the tube and in the blogosphere wondered why the senator from Kentucky was so concerned. After all, they said, no American has been killed on American soil by a drone attack, so Paul’s filibuster was about something that was speculative, at best.
Imagine if every American, from 1787 to 1789, had refused to ask hypotheticals. Well, we would not have the first 10 amendments to the U.S. Constitution, aka the Bill of Rights. It includes the Sixth Amendment — a recognition that American citizens, accused of criminal activity, have the right to a trial by a jury of their peers.
Rand Paul feared that drones may be used one day to bypass the protections in that amendment and overlook limitations on governmental authority. He questioned the commander in chief, and, in the end, Paul got an answer.
Attorney General Eric Holder replied to the senator in a terse memo: “It has come to my attention that you have asked an additional question. ‘Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?’ The answer to that question is no.”
Paul’s filibuster reminds me of those Antifederalists who wanted a written guarantee that acknowledged limited government and individual rights, and respected individual liberties.
During the ratification debates (1787-89), Antifederalists, in particular, wanted a Bill of Rights added to the Constitution. They, like Paul, were criticized for asking hypotheticals, and many proponents of the Constitution declared that a Bill of Rights was unnecessary.
In the end, the Antifederalists won. For their efforts we have the first 10 amendments to the Constitution. These amendments, to list four examples, guarantee freedom of speech and religion, ownership of guns, and the right to a trial by a jury of our peers.
Compare Paul’s filibuster and question with the concerns of some Antifederalists. “The Federal Farmer,” more than likely Richard Henry Lee, argued in his sixth essay: “There appears to me to be not only a premature deposit of some important powers in general government — but many of those deposited there are undefined, and may be used to good or bad purposes as honest or designing men shall prevail.”
In essay nine, he claimed that a trial by jury in criminal cases was a common right of Americans that had “been recognized by the state constitutions.” He wanted the proposed national constitution to limit national government authority and to acknowledge an individual’s right to a trial by jury.
Paul’s demands for a more specific answer to his question while referring to the Sixth Amendment reminded me in particular of the writings of DeWitt Clinton, who used the pseudonym A Countryman : “I would rather trust my life, liberty, and property to a verdict of 12 of my honest neighbors, than to the opinion of a great man in the world, for great men are not always honest men.”
Have Americans reached a point at which it is more acceptable to be sheeplike than to ask for limitations on governmental authority? I hope not. As the Antifederalists persuaded Federalists to add the Bill of Rights to the Constitution and specify limitations on the national government, Rand Paul’s reliance on the Sixth Amendment influenced the Obama administration to declare publicly the boundaries on its power.
Dr. Troy Kickler is director of the North Carolina History Project.