in America: Where's The Outrage?
Andrew Napolitano rips government notion 'balance' is required
between safety, liberty
By Andrew Napolitano
----------- For the past few weeks, I have been writing in this
column about the government’s use of drones and challenging
their constitutionality on Fox News Channel where I work. I once
asked on air what Thomas Jefferson would have done if — had
drones existed at the time — King George III had sent drones to
peer inside the bedroom windows of Monticello. I suspect that
Jefferson and his household would have trained their muskets on
the drones and taken them down. I offer this historical
anachronism as a hypothetical only, not as one who is urging the
use of violence against the government.
Nevertheless, what Jeffersonians are among us today? When drones
take pictures of us on our private property and in our homes,
and the government uses the photos as it wishes, what will we do
about it? Jefferson understood that when the government assaults
our privacy and dignity, it is the moral equivalent of violence
against us. The folks who hear about this, who either laugh or
groan, cannot find it humorous or boring that their every move
will be monitored and photographed by the government.
Don’t believe me that this is coming? The photos that the drones
will take may be retained and used or even distributed to others
in the government so long as the “recipient is reasonably
perceived to have a specific, lawful governmental function” in
requiring them. And for the first time since the Civil War, the
federal government will deploy military personnel inside the
United States and publicly acknowledge that it is deploying them
“to collect information about U.S. persons.”
It gets worse. If the military personnel see something of
interest from a drone, they may apply to a military judge or
“military commander” for permission to conduct a physical search
of the private property that intrigues them. And any
“incidentally acquired information” can be retained or turned
over to local law enforcement. What’s next? Prosecutions before
military tribunals in the U.S.?
The quoted phrases above are extracted from a now-public 30-page
memorandum issued by President Obama’s secretary of the Air
Force on April 23, 2012. The purpose of the memorandum is stated
as “balancing … obtaining intelligence information … and
protecting individual rights guaranteed by the U.S.
Constitution….” Note the primacy of intelligence gathering over
freedom protection, and note the peculiar use of the word
When liberty and safety clash, do we really expect the
government to balance those values? Of course not. The
government cannot be trusted to restrain itself in the face of
individual choices to pursue happiness. That’s why we have a
Constitution and a life-tenured judiciary: to protect the
minority from the liberty-stealing impulses of the majority. And
that’s why the Air Force memo has its priorities reversed —
intelligence gathering first, protecting freedom second — and
the mechanism of reconciling the two — balancing them —
Everyone who works for the government swears to uphold the
Constitution. It was written to define and restrain the
government. According to the Declaration of Independence, the
government’s powers come from the consent of the governed. The
government in America was not created by a powerful king
reluctantly granting liberty to his subjects. It was created by
free people willingly granting limited power to their government
— and retaining that which they did not delegate.
The Declaration also defines our liberties as coming from our
Creator, as integral to our humanity and as inseparable from us,
unless we give them up by violating someone else’s liberties.
Hence the Jeffersonian and constitutional beef with the word
“balancing” when it comes to government power versus individual
The Judeo-Christian and constitutionally mandated relationship
between government power and individual liberty is not balance.
It is bias — a bias in favor of liberty. All presumptions should
favor the natural rights of individuals, not the delegated and
seized powers of the government. Individual liberty, not
government power, is the default position because persons are
immortal and created in God’s image, and governments are
temporary and based on force.
Hence my outrage at the coming use of drones — some as small as
golf balls — to watch us, to listen to us, and to record us. Did
you consent to the government having that power? Did you consent
to the American military spying on Americans in America? I don’t
know a single person who has, but I know only a few who are
If we remain silent when our popularly elected government
violates the laws it has sworn to uphold and steals the freedoms
we elected it to protect, we will have only ourselves to blame
when Big Brother is everywhere. Somehow, I doubt my father’s
generation fought the Nazis in World War II only to permit a
totalitarian government to flourish here.
Is President Obama prepared to defend this? Is Gov. Romney
prepared to challenge it? Are you prepared for its consequences?
Napolitano, a former judge of the Superior Court of New Jersey,
is the senior judicial analyst at Fox News Channel and anchor of
FreedomWatch on Fox Business Network. His most recent book, It
Is Dangerous To Be Right When the Government Is Wrong, was
released in October 2011.
COPYRIGHT 2012 ANDREW P. NAPOLITANO.
DISTRIBUTED BY CREATORS.COM.