The wannabe fascists have a plan. They'll win if we don't fight back

This fight isn’t really about immigration. It’s about whether the Constitution still restrains government power at all.

When elected officials call it a “nonstarter” to require federal agents to get a judicial warrant before kicking in doors, to give people bail or a trial before they face long-term prison, and to allow protests, they’re not debating border policy, they’re testing whether the Bill of Rights is still binding or has become merely decorative.

The Bill of Rights was written to put friction between the state’s power to use force and the people it governs. To restrain government.

If that friction can be removed so government can attack any one disfavored group, then constitutional rights stop being universal guarantees and turn into conditional privileges. And once that shift happens, history — and Pastor Martin Niemöller’s famous poem — show us that the groups of people who’re unprotected never stays small for long.

This week’s news which highlights this crisis is that Republicans have shut down the Department of Homeland Security because they say Democrats’ call for ICE to follow the law and the Constitution is “a nonstarter.”

Seriously. Here’s the first sentence of the Democrats’ demand that Republicans say is so unreasonable:

“DHS officers cannot enter private property without a judicial warrant.”

Right now, ICE is kicking in doors and smashing windows of cars in order to attack and arrest both citizens and non-citizens alike. They do it because they say they can. And to arrest, detain, and imprison people they claim they can issue their own phony, made-up “administrative warrants” and don’t need a judge or court to see any evidence or say a word.

This is complete bulls---, and it’s genuinely astonishing that Republicans are backing them up. The Fourth Amendment isn’t complicated. Here it is, in it’s entirety (notice it does NOT say “citizens” but says “people”):

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

That’s it. Every word. And it applies to any “person” who happens to be in the United States. Nonetheless, ignoring 250 years of American law and history, DHS General Counsel James Percival said:

“[I]llegal aliens aren’t entitled to the same Fourth Amendment protections as U.S. citizens.”

His argument is that kicking in the front doors of the homes of people where undocumented immigrants may be staying, or smashing the windows of their cars, is not “unreasonable.”

This is a classic example of how law can get twisted into gibberish by a criminal regime like we are currently suffering under. And it doesn’t even include the right to a trial by jury, the right practice journalism, or the right to protest, all guaranteed by the Bill of Rights.

Yesterday I told you about something the people who started this country learned from bitter experience and their deep reading of history: a wannabe fascist government (like Donald Trump is trying to turn ours into) doesn’t have to openly break the law to destroy liberty.

It just has to have enough sycophants in positions of power to ignore the law so it no longer restrains the government’s awesome power.

To modern Americans that may sound like an abstraction, but it’s critical. Government is the only institution that has widespread cultural approval to use violence, to imprison or even kill us, and to tear our lives apart in search of alleged criminal activity.

The whole point of a democracy is to restrain that power and prevent it from ever becoming so concentrated in a small number of hands that it can be abused for the benefit of one group over another.

Our movies and old newsreels of the Nazi era seem to tell us that we’ll recognize tyranny when there are tanks in the streets, newspapers are shut down, elections are canceled, and we see public executions of protestors.

But that’s not how tyranny usually works in its middle stages, like the one we’re in now.

At our founding, for example, the British Empire never announced, “Colonists have no rights” the way ICE’s lawyer is now proclaiming that immigrants aren’t protected by the Fourth Amendment. In fact, Parliament repeatedly insisted the opposite. Americans were British subjects, protected by British law, and the king’s officials repeated that constantly.

And yet, nonetheless, British agents kicked in doors without meaningful warrants. People were faced with almost daily violence. British agents monitored, followed, and often beat or arrested people who protested. Newspapers were shut down and writers arrested. And the courts couldn’t meaningfully restrain officers acting in the name of the Crown because their authority was both granted and limited by a single man, the King.

Everything existed inside a legal framework, and the British repeatedly insisted that it was the colonists, not their own agents and troops, who were “breaking the law.”

That’s what finally snapped the colonist’s patience. It wasn’t a single outrage like the Tea Act or the Boston Massacre — although those highlighted the oppression they experienced — but their final realization that every complaint they filed was answered with a legalistic explanation of why the abuse was justified.

Read the Declaration of Independence — which I quoted yesterday — closely and you’ll see a pattern emerge. Jefferson doesn’t just list harms. He listed systemic, undemocratic structural and jurisdictional moves: judges who were dependent on the ruler, military power that was put above civil authority, the denial of power to local courts, tax laws that only benefited the rich, and people transported for trial elsewhere.

The issue wasn’t cruelty or British abuse of power, although both were terrible. It was that the very structure of authority, the system, had been arranged so law was constantly being rewritten on the fly, tweaked to confront defiance, and abused to enhance and justify government power over people’s lives instead of limiting it.

That distinction, after the Revolutionary War, shaped the Constitution that came next.

We tend to treat the Bill of Rights as a moral document, a statement of national values, but the people who wrote it were being much more practical than philosophical. They were building a machine they believed would make tyranny as a governing method impossible.

They assumed — again, based on their own experience and their reading of history —that every government would always want to expand its own power because every government throughout history always had.

That’s why they wrote our Constitution the way they did: to establish a structure, a system, that’s bigger than any politician (including the president).

• If the government wants to arrest or imprison someone, it must first charge them with a specific crime.
• If it charges them, it must present valid evidence to an independent judge or jury.
• If it presents evidence, the accused can confront it and has a mandatory right of defense counsel.
• Before force like arrest, home invasion, or imprisonment is used, the courts must review and can even prevent it.

Those protections enumerated in the Bill of Rights and the overall three-branch structure of our government weren’t there out of kindness or to enhance public morality. They were put into the highest law of our land to produce serious friction — a proverbial “throwing sand into the gears” of our system — that would slow down any politician’s or party’s rush to destroy democracy.

They understood that when politicians and bureaucrats have to explain themselves in public, when they must justify their actions, they’re less likely to abuse people the way the King of England had done during their era.

Perhaps even more important, the Founders and Framers of our Constitution also knew from history that when any group seizes enough power to rise above the law, the republic itself is on its last legs.

Once a segment of society (like the Epstein-billionaire-class or ICE) reached that point — whether because of government employment or vast riches — they knew that the system would be distorted and democracy could die, even if the black-letter text of the law remained intact.

When that happens — as we’re seeing today with Trump having ignored more than 4,400 court orders — court’s rulings become technically binding but the government feels free to ignore them.

The British abuse of the colonists in 1773 is an ancient echo of what we see in Minneapolis today where the FBI just this week officially refused to turn over evidence in the murders of Renee Good and Alex Pretti to the local authorities who, under the law, have jurisdiction over murder.

Under this Trump regime federal government officials now refuse to comply with the Constitution, the law, with court orders, and with even normal American expectations for human decency. They shop around for friendly judges, laugh at court orders, and daily ignore the First, Fourth, Fifth, and Sixth Amendments.

This is exactly why early Americans were obsessed that the due process provisions in the Bill of Rights must apply to everyone, not just citizens, not just allies, not just the respectable. The moment any government starts to decide who receives full legal protection and who the law can either abuse or elevate, it has quietly shifted into that second operating mode the King of England was asserting in 1773. What our nation’s founders called “tyranny.”

History shows what happens once the law restrains some and elevates others above itself: the category of both the abused and the exempt expands. Both always expand, because power, once exercised, becomes precedent. What began as an exception becomes “normal.”

The Founders knew republics — when corrupted by rich, unscrupulous men — drift into this new mode. Like in modern-day Russia and Hungary, elections continue, laws remain on the books, courts keep ruling and yet the poor, the workers, the dissenters, the protesters get crushed while the rich and well-connected — the Epstein billionaire class — rise above any accountability whatsoever.

Which raises the harder question we, as Americans suffering under this regime, must confront right now:

If our government can commit violence, violate the Constitution, lie to the public on a daily basis, repeatedly lose in court, and yet continue acting however they want because the structure now allows it, is there some specific point or line where we’ve officially moved from democracy to tyranny?

It turns out, history tells us that such a line exists. Political philosophers have argued about it for centuries, but the people who wrote our Constitution were quite certain they knew roughly where it lay.

History also tells us there is a line, a point where a democracy stops being a democracy. The people who wrote our Constitution believed that line is crossed when those in power can ignore the law and face no consequences.

It’s passed when rights can be denied to some, when court orders can be brushed aside, and when the government can use force without meaningful oversight. And when that happens, our republic itself is in danger.

Tomorrow I’ll walk through that threshold and explain what it means for us today, because whether we’ve crossed it or not determines whether normal political remedies like elections and legal processes can still function — or ever again function — the way most Americans still assume they do.

• Thom Hartmann is a New York Times best-selling author and SiriusXM talk show host. His Substack can be found here.