NAPOLITANO: Liberty vs. ‘safety’

OPINION:

W hen Edward Snowden revealed that the federal government, in direct defiance of the Fourth Amendment to the Constitution, was unlawfully and unconstitutionally spying on all Americans who use telephones, text messaging or emails to communicate with other people, he opened a Pandora’s box of allegations and recriminations. The allegations he unleashed are that Americans have a government that assaults our personal freedoms, operates in secrecy and violates the Constitution and the values upon which it is based. The recriminations are that safety is a greater good than liberty, and Mr. Snowden interfered with the ability of the government to keep us safe by exposing its secrets, and so he should be silenced and punished.

In the course of this debate, you have heard the argument that we all need to sacrifice some liberty in order to assure our safety, that liberty and safety are in equipoise, and when they clash, it is the government that should balance one against the other and decide which shall prevail. This is, of course, an argument the government loves, as it presupposes that the government has the moral, legal and constitutional power to make this satanic bargain.

It doesn’t.

Roman emperors and tribal chieftains, King George III and French revolutionaries, 20th-century dictators and 21st-century American presidents all have asserted that their first job is to keep us safe, and in doing so they are somehow entitled to take away our liberties, whether it be the speech they hate or fear, the privacy they capriciously love to invade or the private property and wealth they salaciously covet.

This argument is antithetical to the principal value upon which America was founded. That value is simply that individuals — created in the image and likeness of God and thus possessed of the freedoms that He enjoys and has shared with us — are the creators of the government. A sovereign is the source of his own powers. The government is not sovereign. All the freedom that individuals possess, we have received as a gift from God, who is the only true sovereign. All of the powers the government possesses it has received from us, from our personal repositories of freedom.

Thomas Jefferson recognized this when he wrote in the Declaration of Independence that our rights are inalienable — they cannot be separated from us — because we have been endowed with them by our Creator. James Madison, who wrote the Constitution, observed that in the history of the world, when freedom has been won, it happened because those in power begrudgingly permitted freedom as a condition of staying in power or even staying alive.

But not in America.

In America, the opposite occurred when free people voluntarily permitted the government to exercise the limited power needed to protect freedom. That is known as “the consent of the governed.” To Jefferson and Madison, a government lacking that consent is illegitimate.

So, the principal author of the Declaration of Independence and the principal author of the Constitution were of one mind on this: All people are by nature free, and to preserve those freedoms, they have consented to a government. That was the government they gave us — not power permitting liberty, but liberty permitting power — and the instrument of that permission was the Constitution.

The Constitution was created by free men to define and limit the government so it can defend but not threaten our freedoms. Because only free people can consent to a government, the government cannot exist lawfully without those consents. Here is where the modern-day tyrants and big-government apologists have succeeded in confusing well-meaning people. They have elevated safety, which is a goal of government, to the level of freedom, which created the government. This common and pedestrian argument makes the creature — safety — equal to the creator — freedom. That is a metaphysical impossibility because it presumes that the good to be purchased is somehow equal to the free choices of the purchaser.

What does this mean?

It means that when politicians say that liberty and safety need to be balanced against each other, they are philosophically, historically and constitutionally wrong. Liberty is the default position. Liberty is the essence of our natural state. Liberty cannot possibly be equal to a good we have instructed the government to obtain.

What is the only moral relationship between liberty and safety?

It cannot be balance, because liberty and safety are not equals, as one created the other. It can be only bias — a continual predisposition toward and preference for freedom.

Every conceivable clash between the free choices of people and their instructions to their government to safeguard freedom must favor the free choices because freedom is inalienable. Just as I cannot authorize the government to take away your freedom any more than you can authorize it to take away mine, a majority of all but one cannot authorize the government in a free society to take freedom from that one individual. So if somehow freedom and safety do clash, it is the free choice of each person to resolve that clash for himself and not one the government can morally make.

The government always will make choices that favor its power because, as Ludwig von Mises reminded us, government is essentially the negation of freedom. If anyone truly believes that by silencing him or monitoring him or taxing him the government keeps him safe, and that those are the least-restrictive means by which to do so, let that person surrender his own speech and privacy and wealth. The rest of us will retain ours and provide for our own safety.

The reasons we have consented to limited government are to preserve the freedom to pursue happiness, the freedom to be different and the freedom to be left alone. None of these freedoms can exist if we are subservient to the government in the name of safety or anything else.

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the author of seven books on the U.S. Constitution, including his latest, “Theodore and Woodrow: How Two American Presidents Destroyed Constitutional Freedom” (Thomas Nelson, 2012).