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Wednesday, June 12, 2013

Today’s Myth of Life, Liberty, and the Pursuit of Happiness

“When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…” — Declaration of Independence, July 4, 1776.

Americans have grown up for years being told that they are free due to the words of our Founding Fathers as expressed in the Declaration of Independence and codified in the Constitution’s Bill of Rights. I certainly know that I did in a high school student of the 1950s. But the question I pose today is “is this really true?”

Asking if America is free becomes a relative exercise. Free compared to what? Compared to North Korea? Sure. How about, compared to other Western nations or, more importantly, to the ideals of its Founders, who intended America to be the world’s greatest experiment in human endeavor and liberty?

Among the questions prospective new Americans might be asked on their citizenship test is, “What is the supreme law of the land?” The correct answer, as specified in the official study guide, is: “The Constitution.”

Few have been as brazen in pronouncing the Constitution an unwelcome anachronism as was President Woodrow Wilson, though the last century has seen a peculiar, penumbral crusade to twist the plain meaning of the document, while theoretically preserving its primacy. This is how you get to folks supposing James Madison would be A-OK with partial-birth abortion or banning nativity scenes at Christmastime.

But the reason the Framers did not attach a Rosetta stone or decoder ring to the Constitution is because the language is plain enough. They understood that less is more, and it is often observed that the Bill of Rights is a list of negative liberties — things the government cannot do — and not one of those ten amendments is rendered in words that are indecipherable or too numerous to read.

Take, for example, the very first one:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

That means we can speak our minds in America. No legislator, no matter how adamant or esteemed, may write a law that prevents us from doing this, even at election time (Sen. John McCain, please call your office).

Yet here we are, with almost every aspect of that straightforward proscription demonstrably violated by America’s own government — and the rest of the Bill of Rights in not much better shape.

Recent scandals at the IRS, the National Security Agency and the Department of Justice have renewed Americans’ interest in reclaiming their freedoms. This is encouraging. What is discouraging, however, is the extent to which the debate has become reflexively politicized.

Left and right fight so predictably, even a casual observer of politics could recite both sides now. The ideological arguments practically write themselves. Let’s not do that this time. There is ample blame due both Republicans and Democrats for America’s oppressive and corrupt condition.

A handy example: George W. Bush should not have created the Department of Homeland Security. Barack Obama should not have preserved and expanded it. The next president should abolish it.

Law professor Jonathan Turley writes in the Washington Post of the administrative state, which he calls “the fourth branch of government.” He notes that, “in 2007, Congress enacted 138 public laws, while federal agencies finalized 2,926 rules, including 61 major regulations.” In this context, it is irrelevant who resides in the White House or holds the House speaker’s gavel. America is not a nation of laws, but of rules. Only a renewed cultural will to true reform, coupled with political leadership, can correct that. Professor Turley states [emphasis added]:

There were times this past week when it seemed like the 19th-century Know-Nothing Party had returned to Washington. President Obama insisted he knew nothing about major decisions in the State Department, or the Justice Department, or the Internal Revenue Service. The heads of those agencies, in turn, insisted they knew nothing about major decisions by their subordinates. It was as if the government functioned by some hidden hand.

Clearly, there was a degree of willful blindness in these claims. However, the suggestion that someone, even the president, is in control of today’s government may be an illusion.

The growing dominance of the federal government over the states has obscured more fundamental changes within the federal government itself: It is not just bigger, it is dangerously off kilter. Our carefully constructed system of checks and balances is being negated by the rise of a fourth branch, an administrative state of sprawling departments and agencies that govern with increasing autonomy and decreasing transparency.

For much of our nation’s history, the federal government was quite small. In 1790, it had just 1,000 nonmilitary workers. In 1962, there were 2,515,000 federal employees. Today, we have 2,840,000 federal workers in 15 departments, 69 agencies and 383 nonmilitary sub-agencies.

This exponential growth has led to increasing power and independence for agencies. The shift of authority has been staggering. The fourth branch now has a larger practical impact on the lives of citizens than all the other branches combined.

The rise of the fourth branch has been at the expense of Congress’s lawmaking authority. In fact, the vast majority of “laws” governing the United States are not passed by Congress but are issued as regulations, crafted largely by thousands of unnamed, unreachable bureaucrats. One study found that in 2007, Congress enacted 138 public laws, while federal agencies finalized 2,926 rules, including 61 major regulations.

This rulemaking comes with little accountability. It’s often impossible to know, absent a major scandal, whom to blame for rules that are abusive or nonsensical. Of course, agencies owe their creation and underlying legal authority to Congress, and Congress holds the purse strings. But Capitol Hill’s relatively small staff is incapable of exerting oversight on more than a small percentage of agency actions. And the threat of cutting funds is a blunt instrument to control a massive administrative state — like running a locomotive with an on/off switch.”

Turley echoes what I have been writing about for the past two years when he talks about the power of the Administrative State created by Woodrow Wilson and expanded over the past 100 years.

Senators Rand Paul and Ted Cruz are among the very few major politicians speaking out in favor of undiluted constitutional freedom. If and when they480px-Rand_Paul_by_Gage_Skidmore_10-11-10 run for president, one hopes their advocacy will find a larger audience, regardless of their prospects for victory. And this need not be only a Republican tack. If there is a Democrat who truly believes in scaling back the power and scope of the federal government, we should support that person, too (and one assumes such a Democrat would be easy to spot, as he or she will be riding a unicorn while collaborating with a leprechaun to perfect cold fusion).

Left or right, if people mean what they say about the sanctity of personal freedom and human dignity, now is the time to bring those convictions to bear.

We have learned of the IRS harassing citizens and the DOJ investigating journalists for exercising their First Amendment rights, and of the NSA collecting Americans’ phone records and emails. Meanwhile, DHS retains the right to copy the content of phones and computers at border crossings and erect checkpoints along the country’s roads and railways, and the Supreme Court has given its imprimatur to police extracting DNA samples from people who have been convicted of no crime.

Those who cried loudest that water-boarding or “torture” should not be used on hostile foreigners should be equally adamant that citizens not become government property (sorry, Sen. McCain, could you call back, just for a sec?). Similarly, abortion advocates who for decades have told government to keep its hands off their bodies could apply that slogan to the TSA’s abuse of travelers at America’s airports.

Many of these excesses are undertaken in the name of America’s infinitely elastic “War on Terror.”

Which means what, exactly? Stipulating that this vast and obscene apparatus could not detect Islamist terrorists like the Richard Reid the shoe bomber, Umar Farouk Abdulmutallab the underwear bomber, the Boston Marathon bombers, and the Fort Hood shooter (the latter of whom should have been easy to spot at half the price, since he was a U.S. Army major who had conducted official seminars on the gruesome things that should befall infidels), let us also assume there are many other plots we never hear of, prevented by these very methods.

But if so, so what? Does this actually save lives? Perhaps. But the Constitution was intended to codify freedom, to lay out God-given liberty such that while they live, future generations could surpass mere survival to enjoy unfettered humanity.

The administration, senior members of Congress and members of the intelligence community are now trying to reassure the American people that the massive data collection programs in place which collect records of something like three million telephone calls per day are completely harmless unless, of course, you are a terrorist.  In that case, this enormous effort will help protect the homeland.

Only terrorists need be concerned.  Otherwise, there's nothing to see here, so move along.

I seem to recall, however, that Janet Napolitano, our peerless Secretary of Homeland Security disseminated a white paper in 2009 that indicated that veterans returning from Iraq and Afghanistan, Tea Partiers, Pro-Life Groups, and other "right wing extremists," those who mistrust the government and others of like mind are potential threats and potential terrorists.

So is the government lying to us about this being a benign program of data collection that would require a FISA court to approve of any other use of this meta-data? Or are they, perhaps, telling us the absolute truth — absent one tiny, minor, trivial detail that is too irrelevant to even mention. They haven't, to my knowledge, actually defined what they mean when they say "terrorists".

That oversight allows the administration an awful lot of "wiggle room" in who they are targeting, wouldn't you think?

Actually, such government encroachment on civil liberties has been public knowledge for years. On March 10, 2008, the Wall Street Journal reported on the NSA’s efforts to “reach more broadly into data about people’s communications, travel and finances in the U.S.” The Wall Street Journal article hinted at the “cluster of powerful intelligence-gathering programs,” most of which are super-secret, off-budget “black programs.” These include an FBI initiative to track telecommunications data once known as “Carnivore” (now called “the Digital Collection System”) and electronic monitoring of the world’s main international banking clearinghouse to track money movements.

As confirmed by Senator Mark Udall (D-CO) and others last week, the public is seeing only the tip of the NSA’s SIGINT (signals intelligence) iceberg. Under PRISM, the federal government is able to collect raw data from emails, telephone conversations, texts, videos, photos, VOIP conversations (e.g., Skype), electronic file transfers, social networking details and login details (yes, they can access your email accounts at any time). This applies to both Americans and foreign nationals. NSA computers are programmed to collect data from emails and phones containing certain keywords (for example, anything related to Cuba, regardless of whether the communication refers to a beach vacation or a violation of the Trading with the Enemy Act).

Contrary to the assertions of President Obama and other government officials, PRISM and similar highly classified programs are not used solely for anti-terrorism or anti-money laundering purposes. The federal government collects business and technical data, as well as political information. SIGINT data on global financial transactions is routinely provided to the IRS for use in tracking foreign bank accounts held by law-abiding U.S. nationals, or what the federal government refers to as “persons subject to U.S. jurisdiction” — which the Justice Department can define to include just about anyone in the world. Data on foreign bank accounts is increasingly being used for tax collection purposes, especially for implementing the Foreign Account Tax Compliance Act (FATCA), which requires individuals to report their financial accounts held offshore and foreign financial institutions to report to the IRS about their U.S. clients. As a result of FATCA, a growing number of foreign financial advisors and banks are refusing to take American clients.

The government’s electronic snooping has outraged Americans across the political spectrum. When Senator Rand Paul and the American Civil Liberties Union agree on an issue, and the New York Times publishes editorials similar to those in National Review, it is clear that the federal government has overstepped its constitutional bounds.

Something is very wrong in Washington, D.C. We haven’t quite reached the world imagined in George Orwell’s 1984, but Big Brother — a.k.a. “Uncle Sam” — is definitely watching you. The federal government is becoming something very different from what the Founding Fathers envisioned.

Not only do we expect the government to respect our rights, but we don’t want it constantly staring down at us, either. We expect to conduct our daily business with only minimal government contact, except in a few areas that clearly require strict regulation for the public good, such as automobile driving. Otherwise, if we are breaking no laws, we expect to pass beyond the gaze of the State. Most of us want to obey the law, having no appetite for trespass or injury against our neighbors. Not only is this proper conduct for a civil society, but we understand that our respect for liberty can only flourish when most of us respect the law. The system of government necessary to restrain a great population of savage predators is very different from the way a community of essentially well-meaning folk can live.

But we don’t live that way, not any more.

Our body of laws has grown far beyond the ability of well-meaning people to understand it and voluntarily respect its full measure. Almost all of us could easily be established as criminals if the government wanted to. That’s one reason a vast, perpetual, easily searchable database of our communications is a dangerous tool in the hands of activist government.

And we do have activist government. It long ago lost its focus on the performance of a minimal set of duties, largely oriented toward promoting our common safety. In fact, it chafes at demands for it to address such duties when it finds them politically inconvenient — for example, border security. The government does not treat its citizens equally. It makes value judgments about what they “need” and “deserve,” then acts accordingly. Its agenda is so vast that it must tax away a portion of almost every productive activity, taking pains to fine-tune those demands just enough to avoid killing its host free-market organism. Notice how even in a time of slack economic growth and agonizing high unemployment, there is little serious talk of reducing the burden of government, not in any way that would greatly reduce the amount of power it wields. Such reforms are unthinkable; there is nothing to discuss except which industries the State will subsidize, or how it can distribute wealth to the “deserving” in a way that creates more jobs.

There can be no presumption of privacy or innocence against this system. You don’t have to do anything “wrong” to suffer punitive measures. Your activities must be monitored, so they can be controlled.

This extends to activities that should enjoy vigorous protection from our Constitution. When the IRS is criticized for telling politically disfavored groups how to practice their religion, apologists respond by saying they brought it upon themselves by seeking tax exemptions. But these measures were not distributed evenly across the political spectrum. Groups on the Left sailed right through the IRS process, gaining a valuable competitive advantage over the pro-life and Tea Party groups President Obama and his Party dislike. Granting such advantages disproportionately to one side in a debate is a disadvantage against the other side — a hill that some must climb, while others roll easily down the other side.

That’s not how we view the end-user license of liberty presented in our Constitution. It’s supposed to be a list of things the government cannot do, no matter how important or beneficial the political class thinks they are or even how many citizens they can convince to support them, unless, of course, they can rally enough support to change the Constitution itself. Isn’t that beautiful concept really just another way to say “innocent until proven guilty?” We shouldn’t have to justify those essential liberties, or defend them against constant assault. We shouldn’t have to explain why we really, truly need them to politicians angry that our insistence upon individual liberty has thwarted some grand design of theirs, to the grave disappointment of their enthusiastic constituents.

It’s vile sophistry to say our super-sized government still respects the rights of law-abiding citizens and then make it almost impossible to be a law-abiding citizen, despite the best intentions in the world. And in any event, the activist State no longer bothers with the pretense of leaving citizens alone until they commit a crime. The political class is now in the business of defining and punishing sins, which can lurk in the hearts of citizens even when every law is scrupulously obeyed. One of the sins they’ve been most exercised about over the past few years is “income inequality.” What laws must you break to be “guilty” of that? How can anyone hope to retain dignified privacy when the State is on constant patrol against such an “offense?”

At some point, the suggestion that liberties must be curtailed in order to be safe and preserved becomes very difficult to defend.

The elemental question of whether America is free, therefore, begets myriad other questions, including:

Why does America hold more prisoners than any other country in the world?

Why does America demand taxes from people who don’t live in America?

Why does America’s tax authority oversee political speech, religious worship and health care?

Why do government drones conduct surveillance of private property from America’s skies?

Why does America’s government collect the phone records and emails of its people?

Why does a Hayward, California school want a program to turn in toy guns with opportunities for the children to be fingerprinted and photographed?

And why does America seek to force such practices upon other countries?

Some may respond with a legal or military rationale for this policy or that program. But we cannot reply with the simple answer we would most like to give: “Because America is free.”

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