UNDERNEWS

Undernews is the online report of the Progressive Review, edited by Sam Smith, who covered Washington during all or part of one quarter of America's presidencies and edited alternative journals since 1964. The Review has been on the web since 1995. See main page for full contents

August 3, 2009

A JUDGE ON OUR RIGHTS

From the keynote speech at the Ohio Rally for State Sovereignty, August 1

Judge Andrew P. Napolitano - When they were debating the Constitution in the Summer of 1787 in Philadelphia, there were two great arguments - one by the Jefferson and Madison crowd and one by the Adams and Hamilton crowd. Jefferson argued, though he wasn’t physically there in Philly, as he did in the Declaration of Independence that our rights are ours by virtue of our humanity. That as God is perfectly free, and we are created in his image and likeness, we too are perfectly free. The big government crowd - yes they had them even in those days - argued that you can’t have freedom without government, and that government gives us our rights, and therefore, that government can take them away. This is not an academic argument. Jefferson and the natural law argument prevailed because the Constitution was written to keep the government from interfering with our natural rights.

And so, your right to think as you wish, to say what you think, to publish what you say, to travel where you want, to worship as you see fit, to keep and bear arms to defend yourself against a tyranny. And, after the right to life, the greatest and most uniquely American of rights . . . is the right to be left alone.

We wrote a Constitution to ensure that the government would never interfere with these rights. Think about it - if rights come from the government, then the government, by ordinary legislation, or presidential decree can take them away. But if the rights come from our humanity, then unless we violate someone else’s natural rights, the government cannot take our rights away.

This is not just a democrat, upper case D, or a republican, upper case R, problem. It’s a problem with government today. There’s a Republican version of big government just as assaultive to our liberties as there’s a Democrat version of big government. . .

I was speaking to a group of congressmen . . . and they came up to me and said “this is the first time we have heard that the Patriot Act allows federal agents to write their own search warrants.” Remember, in the Constitution, we put in the 4th Amendment, the right to be left alone, to make sure that if the government had a target, no matter how guilty the target, no matter how widespread is the belief in the guilt of the target, no matter how dangerous is the target, the government has to go through a neutral judge with a search warrant before it can get to that target. These members of Congress said, “we didn’t know that the Patriot Act allowed the government to bypass the courts and write any search warrant they wanted.” Then I asked them a question I knew the answer to already - did you read the Patriot Act before you voted on it? The answer - no. What were you voting on? A summary we received. Let me guess who wrote the summary - some lawyers in the Justice Department, right? Of course. . .

During the civil war, Lincoln tried civilians in this state where no battles occurred, by military tribunal. After he died the supreme court invalidated everything the military tribunals did. During the first world war, the Wilson administration locked up 2000 people called anarchists - same thing as enemy combatants. No trial, no charge, just jail for the duration of the war. In world war II, FDR locked up 150,000 Japanese Americans, people born in the United States, who got no trial and had no charges, and when the war was over were given $25 and told to go home.

Jefferson was no saint but he was the greatest of our American presidents. He believed that the individual was greater than the state. He believed that the states were greater than the federal government. And when he wrote that our rights come from our creator, and that our rights are inalienable, he forever wed the notion of natural rights to the American experience and the American experiment. We must be vigilant about every right that the government wants to take away from us.

You’ve heard the president say, present president and his predecessor, “my first job is to keep you safe.” He’s wrong! His first job is to keep us free. It is his only job to keep us free.

Shortly before he died, Jefferson lamented, that in his view of the world that is was in the natural order of things for government to grow and freedom to be diminished; how ardently he wish that that wouldn’t happen. And in order to prevent it from happening he had a very simple remedy, “When the people fear the government, that is tyranny. When the government fears the people, that is liberty!”

5 Comments:

Anonymous Mairead said...

Pity the judge doesn't know his history (Madison at that time was definitely on the side of Adams and Hamilton, not Jefferson) and doesn't check his sources (there's no record of Jefferson ever having written those "when the people fear...." words, which according to the Jefferson Encyclopedia at monticello.org, first appeared in print in 1993.

Madison was the one who candidly admitted that the only reason he was willing to even give the people the appearance of a say in the new federal government was that he was afraid of a new revolution otherwise.

He was also the one who candidly told his fellow delegates to that illegally usurped Convention that their duty was to "protect the minority of the opulent from the majority"

He later wised up and repented his Federalism, but in 1787 he was essentially a Tory like Hamilton.

August 3, 2009 7:41 PM  
Anonymous As long as we're impugning whomever for whatever reason said...

A Tory and a federalist are not the same.

August 4, 2009 4:32 PM  
Anonymous Mairead said...

What do you see the difference being/having been?

Both want a powerful central government of aristos. Whether it's nominally a "republic" or an open monarchy seems to be a secondary issue, as apparently it seemed to Jefferson as well: "their younger recruits, who, having nothing in them of the feelings or principles of ’76, now look to a single and splendid government of an aristocracy, founded on banking institutions, and moneyed incorporations under the guise and cloak of their favored branches of manufactures, commerce and navigation, riding and ruling over the plundered ploughman and beggared yeomanry. This will be to them a next best blessing to the monarchy of their first aim, and perhaps the surest stepping-stone to it."

August 4, 2009 8:20 PM  
Anonymous Anonymous said...

Tories were obviously American colonists who wished to remain British subjects. Presently their descendants reside mostly in Nova Scotia and New Brunswick. Federalists, Washington and Hamilton included, wanted a strong central gov't. I guess the tories left the colonies because the monarchy was a secondary issue. More importantly, Napolitano's argument that rights are inherent in humanity rather than gifts from gov't. would seem to be more important than whether all or any of the founders were enlightened by today's standards.

August 7, 2009 1:14 PM  
Blogger wade said...

Interesting stuff.

Maybe someday the federalists will figure out why George Washington, perhaps the greatest President, didn't try to disarm his former Colonel, George Mason.

Pardon me if that's cavalier, but every rhetorical position has its limits, including federalism.

August 22, 2009 5:36 PM  

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