NAPOLITANO: Bad days for freedom

OPINION:

Presently in America, nearly half of all households receive either a salary or substantial benefits from the government. Presently in America, nearly half of all adults pay no federal income taxes. Presently in America, the half that pay no income taxes receive the bulk of their income courtesy of the government, but ultimately from the half that do. This money is extracted involuntarily from the paying half by a permanent bureaucracy that extracts and gives away more each year no matter who is running the government. The recipients of these transfer payments rely upon them for subsistence, so they have a vested financial interest in sending to Washington those who will continue to take your money and give it to them.

It is no wonder that we are now saddled with the micromanagement of health care by the same bureaucratic mindset that mismanages the U.S. Postal Service and everything else the federal government runs. It should not be surprising to know that presently in America, half of the people actually want the government to take care of their needs. The same was the case under communist regimes, but here those folks vote.

Hence, we have laws that force us to be charitable to those whom the government designates as worthy of our charity, that limit the amount of salt that restaurants can put into our food, that permit the government to watch us on street corners and subways and in the lobbies of buildings, that let the president fight wars of opportunity, that permit the Federal Reserve to print money with no value and inflate prices and destroy savings, that allow the government to listen to us on our cellphones and use those phones to follow us wherever we go, and, according to CIA Director David Petraeus, that let the government anticipate our movements inside our homes.

As of the last week in June, the government has a vast new power that was brought to us by the Supreme Court’s latest attack on personal freedom. Congress can now lawfully command any behavior of individuals that it pleases - whether or not the subject of the behavior is a power granted to Congress by the Constitution - and it may punish noncompliance with that command, so long as the punishment is called a tax.

Justice Antonin Scalia’s whimsical query during the Supreme Court oral argument on the health care law about whether Congress could make him eat broccoli suddenly isn’t as funny as it was when he asked it, because the answer is: It can fine him for not eating broccoli, so long as it calls that fine a tax.

Quick: If you call a tail a leg, how many legs does a dog have? Answer: Four, because calling a tail a leg doesn’t make a tail a leg.

How did we get here?

We got here because voters and the government we elected, and even the courts the popular branches appointed and confirmed, have lost sight of first principles. When Thomas Jefferson wrote in the Declaration of Independence that our rights to life, liberty and the pursuit of happiness are a part of our humanity, and when we fought and won the Revolution under that premise, and when the first Congress enacted that language as the first federal law, this became the irrevocable recognition of the natural law as the basis for our personal freedom and limited government. Since our rights come from our humanity, they don’t come from the government.

But you would never know that from looking at the government. In New York City, where I work at Fox News Channel, we are all embroiled in two disputes this summer over the constitutional role of the government in our lives. The mayor, a self-made billionaire who likes donuts and has bodyguards but wants to tell others how to live in private and in public, is trying to ban soda pop in containers larger than 16 ounces and wants the police to be able to stop and frisk anyone on a whim - and all in the name of health and safety. He is actually banning freedom.

Imagine Jefferson being told what to eat or stopped and frisked on a whim. And then imagine the Supreme Court telling him that he must pay a tax if he fails to comport his personal, private behavior as Congress - which doesn’t believe in privacy or personal freedom - commands.

Here is how you can tell that these are bad days for freedom: Does the government need your permission to violate your rights, or do you need the government’s permission to exercise them? The answer is painfully obvious.

Presently in America, what are we going to do about it?

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. He is the author of “It Is Dangerous to Be Right When the Government Is Wrong: The Case for Personal Freedom” (Thomas Nelson, 2011).