In my previous books, I have attempted to demonstrate that because our rights come from our humanity and are integral to each of us, only we can surrender them. Some folks surrender their rights when they violate the rights of others and get caught. Under this theory of natural rights, a bank robber gives up his freedoms by his aberrant behavior. But he doesn’t give up your freedoms, or mine, or those of the bank he has just robbed, or even those of the bank’s shareholders and depositors, just his own.
No rational society would long permit a justice system to stay in place in which everyone’s rights were diminished because the bank robber got caught. He is the bad guy, he chose to gamble his freedom for the loot he took, and he lost the gamble.
But what happens if he does not get caught? Would a rational justice system punish the bank because the robber got away? Before you answer that quickly and obviously, let’s look briefly at the nature of human freedom.
When Saint Thomas More was representing himself in his treason trial, he made a brilliant, yet unsuccessful argument to his jury about the nature of freedom. The treason charge against him, and under the dreadful laws at the time, the proven act of treason, was his silence—his refusal to assert affirmatively that his former employer and confidant, King Henry VIII, and not the pope, was the lawful head of the Roman Catholic Church in England.
Thomas had been the lord chancellor under Henry—the sixteenth-century version of today’s British prime minister—and Henry needed his consent to help legitimize his break with Rome. Thomas had also been the pope’s lawyer in English courts, so having him on Henry’s side would have been a great public relations coup for the king.
Thomas knew that his jury was chosen by the king’s people and that he’d be convicted. But he also knew that he could strike a blow for fidelity to first principles—here, the Natural Law—if his argument was compelling, yet simple. So he argued that whether the earth was round or flat, an issue of public dispute in that era, the government could not, by act of Parliament or by king’s command, change its shape.
He was, of course, appealing not only to the common sense of his jurors but also to their understanding of the laws of nature. And those laws, which established natural abilities and natural limitations—men can sing but they can’t fly—restrained even the government. He then argued that silence was a natural right, and thus, he could not be punished for exercising it. If free speech was a natural right, then surely silence was. He lost. He joked with his executioner, who wept as he did his sad duty. More was beheaded. Four hundred years later he was canonized.
But his argument—that there are areas of human behavior in the exercise of which we do not need a permission slip from the government—imposes an affirmative obligation on the part of all governments to abide those rights. And when Thomas Jefferson wrote the Declaration of Independence, he made the same argument against King George III as Saint Thomas had made against George’s ancestor, King Henry VIII.
The argument declared that our rights are derived from our Creator, not from the government, and they are inalienable. That argument—which was not original to either Thomas—was adopted by the first U.S. Congress and remains American law today.
None of this should be new to anyone reading this book. And yet, it has largely been ignored by every American government since George Washington. Those governments have all reflected the inevitable growth of the power of government and the shrinkage of personal freedoms.
Not only has American government grown, but within the government, the executive branch of government has grown to dominate the legislative and judicial branches. George Washington believed he could execute soldiers without a trial, and John Adams believed it somehow was constitutional to punish speech that brought his government, or him personally, into disrepute.
Lincoln suspended natural rights, disobeyed lawful orders of the Supreme Court, and arrested newspaper publishers and elected officials who disagreed with him, all while reflecting the profoundly, embarrassingly immoral white supremacist attitudes of his day.
Woodrow Wilson tricked the nation into fighting a useless war and then used the war as an excuse for punishing speech critical of his administration with long jail terms. He seized private property without paying for it and even arrested a rival presidential candidate.
Franklin D. Roosevelt arrested Americans on the basis of their race and put them into concentration camps. He executed first and then sought judicial approval. He even stole millions of dollars in gold from innocent, law-abiding Americans. He no doubt fomented the Japanese attack on Pearl Harbor and then punished innocent military officers for not having caught him.
If you measure unpunished brutality by the number of innocent deaths in the shortest period of time, Harry Truman was the greatest war criminal and mass killer in history for the quarter million Japanese civilians he murdered in a few moments at Hiroshima and Nagasaki, after Japan had effectively surrendered. Then his Department of Justice set about systematically prosecuting people for publicly considering the wisdom—or lack thereof—of communism because the boss needed to look tough.
But (with the exception of Hiroshima and Nagasaki) all this pales in comparison with the constitutional monstrosities that followed the attacks on America on September 11th 2001.
C. S. Lewis once remarked that the greatest trick the Devil has pulled off was to convince us that he does not exist. This book argues that the greatest trick the federal government ever pulled was convincing us that we should voluntarily surrender our liberties, just because the monsters who perpetrated the 9/11 attacks did not get caught beforehand.
It is a central premise of this work that the federal government has never taken seriously the concept of natural rights, all the while paying lip service to that first principle. I argue that the government believes that it—and not the Creator—is the source of human freedom; and it alone can decide when to expand personal freedoms and when to contract them. And it believes that it can restrict freedom by majority vote or judicial ruling or executive fiat.
The first half of this book is a cursory history of presidential lawmaking and lawbreaking in the years before 9/11. The second half concentrates on the presidencies of George W. Bush and Barack Obama.
It is they who incarcerated without charge or trial, and who claimed the power to do so even after acquittal. It is they who have operated a Devil’s Island off the coast of Florida where prisoners were routinely tortured and where they had no hope of a fair hearing, much less eventual freedom. It is they who claimed the power to torture and kill non-combatants, and who did so. President Obama even went so far as to suggest that his summary murder of innocent Americans and foreigners is somehow consistent with constitutional language that forbids it. Each started wars without a declaration of war from Congress. Each signed legislation into law he had no intention of enforcing. Each claimed to derive power to make law and adjudicate its application from some extra-constitutional source he could not name.
And each effectively sought to punish the shareholders and depositors of a bank when the bank’s robber got away. They both believed that they could take away rights and create new ones. Surely one could, out of fear and desperation, surrender one’s rights to the government in return for a promise of safekeeping. That would be asinine, as it is tantamount to slavery, but it would be lawful.
One is simply without the moral, constitutional, or lawful power to surrender someone else’s freedom. Yet that is just what Bush and Obama did: Using fear and loathing, they persuaded innocent Americans and duped Congresses that they had nothing to lose and nothing to hide by surrendering freedom—their own and everyone else’s—into the arms of a government that would keep them safe and secure.
The consequence of this surrender is a federal government that acts as if it can regulate any behavior, right any wrong, and tax any event or non-event, all for “national security” reasons. The post-9/11 federal government plainly admits that it takes freedom from us in order to keep us safe.
But who or what will keep our freedoms safe from the government? To address that problem and to understand its scope, the reader is invited to dive in to this book and to do so with a warning: There is no happy ending.