Jefferson Weeping
By Judge Andrew Napolitano | Judge Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. He is author of It Is Dangerous to Be Right When the Government Is Wrong and Lies the Government Told You and others.
Do you have more personal liberty today than on the Fourth of July 2012?
When Thomas Jefferson wrote the Declaration of Independence, he used language that has become iconic. He wrote that we are endowed by our Creator with certain inalienable rights, and among them are life, liberty and the pursuit of happiness.
Not only did he write those words, but the first Congress adopted them unanimously, and they are still the law of the land today. By acknowledging that our rights are inalienable, Jefferson’s words and the first federal statute recognize that our rights come from our humanity – from within us – and not from the government.
The government the Framers gave us was not one that had the power and ability to decide how much freedom each of us should have, but rather one in which we individually and then collectively decided how much power the government should have. That, of course, is also recognized in the Declaration, wherein Jefferson wrote that the government derives its powers from the consent of the governed.
To what governmental powers may the governed morally consent in a free society? We can consent to the powers necessary to protect us from force and fraud, and to the means of revenue to pay for a government to exercise those powers. But no one can consent to the diminution of anyone else’s natural rights, because, as Jefferson wrote and the Congress enacted, they are inalienable.
Just as I cannot morally consent to give the government the power to take your freedom of speech or travel or privacy, you cannot consent to give the government the power to take mine. This is the principle of the natural law: We all have areas of human behavior in which each of us is sovereign and for the exercise of which we do not need the government’s permission. Those areas are immune from government interference.
That is at least the theory of the Declaration of Independence, and that is the basis for our 237-year-old American experiment in limited government, and it is the system to which everyone who works for the government today pledges fidelity.
Regrettably, today we have the opposite of what the Framers gave us. Today we have a government that alone decides how much wealth we can retain, how much free expression we can exercise, how much privacy we can enjoy. And since the Fourth of July 2012, freedom has been diminished.
In the past year, all branches of the federal government have combined to diminish personal freedoms, in obvious and in subtle ways. In the case of privacy, we now know that the federal government has the ability to read all of our texts and emails and listen to all of our telephone calls – mobile and landline – and can do so without complying with the Constitution’s requirements for a search warrant. We now know that President Obama authorized this, federal judges signed off on this, and select members of Congress knew of this, but all were sworn to secrecy, and so none could discuss it. And we only learned of this because a young former spy risked his life, liberty and property to reveal it.
In the past year, Obama admitted that he ordered the CIA in Virginia to use a drone to kill two Americans in Yemen, one of whom was a 16-year-old boy. He did so because the boy’s father, who was with him at the time of the murders, was encouraging militants to wage war against the U.S.
He wasn’t waging war, according to the president; he was encouraging it.
Simultaneously with this, the president claimed he can use a drone to kill whomever he wants, so long as the person is posing an active threat to the U.S., is difficult to arrest and fits within guidelines that the president himself has secretly written to govern himself.
In the past year, the Supreme Court has ruled that if you are in police custody and fail to assert your right to remain silent, the police at the time of trial can ask the jury to infer that you are guilty. This may seem like a technical ruling about who can say what to whom in a courtroom, but it is in truth a radical break from the past.
Everyone knows that we all have the natural and constitutionally guaranteed right to silence. And anyone in the legal community knows that judges for generations have told jurors that they may construe nothing with respect to guilt or innocence from the exercise of that right. No longer. Today, you remain silent at your peril.
In the past year, the same Supreme Court has ruled that not only can you be punished for silence, but you can literally be forced to open your mouth. The court held that upon arrest – not conviction, but arrest – the police can force you to open your mouth so they can swab the inside of it and gather DNA material from you.
Put aside the legal truism that an arrest is evidence of nothing and can and does come about for flimsy reasons; DNA is the gateway to personal data about us all. Its involuntary extraction has been insulated by the Fourth Amendment’s requirements of relevance and probable cause of crime. No longer. Today, if you cross the street outside of a crosswalk, get ready to open your mouth for the police.
The litany of the loss of freedom is sad and unconstitutional and irreversible. The government does whatever it can to retain its power, and it continues so long as it can get away with it. It can listen to your phone calls, read your emails, seize your DNA and challenge your silence, all in violation of the Constitution. Bitterly and ironically, the government Jefferson wrought is proving the accuracy of Jefferson’s prediction that in the long march of history, government grows and liberty shrinks.
Somewhere Jefferson is weeping.
Happy Fourth of July 2013.
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Received this a few minutes ago from a friend in California who made the news lately. Thanks, Jan:
A VISITOR FROM THE PAST
(author unknown)
I had a dream the other night, I didn't understand.
A figure walking through the mist, with flintlock in his hand.
His clothes were torn and dirty, as he stood there by my bed.
He took off his three-cornered hat, and speaking low, he said:
"We fought a revolution, to secure our liberty.
We wrote the Constitution, as a shield from tyranny.
For future generations, this legacy we gave.
In this, the land of the free and the home of the brave.
"The freedom we secured for you, we hoped you'd always keep.
But tyrants labored endlessly while your parents were asleep.
Your freedom gone, your courage lost, you're no more than a slave.
In this, the land of the free and home of the brave.
"You buy permits to travel, and permits to own a gun,
Permits to start a business, or to build a place for one.
On land that you believe you own, you pay a yearly rent.
Although you have no voice in choosing, how the money's spent.
"Your children must attend a school that doesn't educate.
Your Christian values can't be taught, according to the state.
You read about the current news, in a regulated press.
You pay a tax you do not owe, to please the I.R.S.
"Your money is no longer made of Silver or of Gold.
You trade your wealth for paper, so your life can be controlled.
You pay for crimes that make our Nation, turn from God in shame.
You've taken Satan's number, as you've traded in your name.
"You've given government control, to those who do you harm,
So they can padlock churches, and steal the family farm,
And keep our country deep in debt, put men of God in jail,
Harass your fellow countrymen, while corrupted courts prevail.
"Your public servants don't uphold the solemn oath they've sworn.
Your daughters visit doctors, so their children won't be born.
Your leaders ship artillery, and guns to foreign shores,
And send your sons to slaughter, fighting other people's wars.
"Can you regain the freedom for which we fought and died?
Or don't you have the courage, or the faith to stand with pride?
Are there no more values for which you'll fight to save?
Or do you wish your children, to live in fear and be a slave?
"People of the Republic, arise and take a stand!
Defend the Constitution, the Supreme Law of the Land!
Preserve our Great Republic, and GOD-Given Right!
And pray to GOD, to keep the torch of Freedom burning bright!"
As I awoke he vanished, in the mist from whence he came.
His words were true, we are not Free, we have ourselves to blame.
For even now as tyrants, trample each GOD-Given Right.
We only watch and tremble, too afraid to stand and fight.
If he stood by your bedside, in a dream, while you're asleep,
And wonders what remains of our Rights he fought to keep,
What would be your answer, if he called out from the grave:
"IS THIS STILL THE LAND OF THE FREE AND HOME OF THE BRAVE???"
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