Liberty in shambles
By Andrew P. Napolitano
Published: Saturday, June 15, 2013, 9:00 p.m.
When British soldiers were roaming the American countryside in the 1760s with lawful search warrants with which they had authorized themselves to enter the private homes of Colonists in order to search for government-issued stamps, Thomas Paine wrote, “These are the times that try men's souls.” The soul-searching became a revolution in thinking about the relationship of government to individuals. That thinking led to casting off a king and writing a Constitution.
What offended the Colonists when the soldiers came legally knocking was the violation of their natural right to privacy — their right to be left alone.
Thomas Jefferson made the case for natural rights in the Declaration of Independence. The Bill of Rights was added to the Constitution to reduce to writing the guarantees of personal liberty. And, of course, to prevent the recurrence of soldier-written search warrants and the government dragnets and fishing expeditions they wrought, the Constitution mandates that only judges may issue search warrants.
But after 9/11, Congress enacted the Patriot Act. This permitted federal agents to write their own search warrants, as if to mimic the British soldiers in the 1760s. It was amended to permit the feds to go to the Foreign Intelligence Surveillance Court (FISA) and obtain a search warrant for the electronic records of any American who might communicate with a foreign person.
Congress made all these changes, notwithstanding the oath that each member of Congress took to uphold the Constitution. It is obvious that the current standard, probable cause of communicating with a foreign person, bears no rational or lawful resemblance to the constitutionally mandated standard: probable cause of crime.
Now we know that the feds have seized the telephone records of more than 100 million Americans and the email and texting records of nearly everyone in the U.S. for a few years. They have obtained this under the laws that permit them to do so.
These laws were validly enacted but they are profoundly unconstitutional because they change the clear and direct language in the Constitution. Congress is not authorized to make those changes. These laws directly contradict the core American value that our rights come from our humanity and may not be legislated away — not by a vote of Congress, not by the consensus of our neighbors, not even by agreement of all Americans but one.
The government says we should trust it. Who in his right mind would do so after this?
The modern-day British soldiers — our federal agents — are not going from house to house; they are going from phone to phone and from computer to computer, enabling them to penetrate every aspect of our lives. If anything violates the lessons of our history, the essence of our values and the letter of the Constitution, it is this.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel.
Show commenting policy
TribLive commenting policy
You are solely responsible for your comments and by using TribLive.com you agree to our Terms of Service.
We moderate comments. Our goal is to provide substantive commentary for a general readership. By screening submissions, we provide a space where readers can share intelligent and informed commentary that enhances the quality of our news and information.
While most comments will be posted if they are on-topic and not abusive, moderating decisions are subjective. We will make them as carefully and consistently as we can. Because of the volume of reader comments, we cannot review individual moderation decisions with readers.
We value thoughtful comments representing a range of views that make their point quickly and politely. We make an effort to protect discussions from repeated comments either by the same reader or different readers.
We follow the same standards for taste as the daily newspaper. A few things we won't tolerate: personal attacks, obscenity, vulgarity, profanity (including expletives and letters followed by dashes), commercial promotion, impersonations, incoherence, proselytizing and SHOUTING. Don't include URLs to Web sites.
We do not edit comments. They are either approved or deleted. We reserve the right to edit a comment that is quoted or excerpted in an article. In this case, we may fix spelling and punctuation.
We welcome strong opinions and criticism of our work, but we don't want comments to become bogged down with discussions of our policies and we will moderate accordingly.
We appreciate it when readers and people quoted in articles or blog posts point out errors of fact or emphasis and will investigate all assertions. But these suggestions should be sent via e-mail. To avoid distracting other readers, we won't publish comments that suggest a correction. Instead, corrections will be made in a blog post or in an article.
- Garden Q&A: Firecracker vine OK for trellis?
- Davis embraces new opportunity with Pirates
- NHL notebook: Bruins’ Lucic fined $5,000 for spearing
- Mail for IRS delivered to Squirrel Hill home
- Riverhounds squander 2-goal lead, settle for draw
- NFL notebook: Pryor will be cut if he’s not traded
- ‘Patriots’ back Nevada rancher; Reid labels them ‘domestic terrorists’
- Frye: Commission discusses ‘second opening day effect’
- Architecture photos show difference between drama, fact
- State Police: People injured in Parkway crash resulting from police chase
- Instagram builds Oakmont barber’s rep for innovative cuts, ‘hair tattooing’