Andrew P. Napolitano*
The tragedy in Paris last Friday has regrettably been employed as a catalyst for renewed calls by governments in western Europe and even in the United States for more curtailment of personal liberties. Those who accept the trade of liberty for safety have argued in favor of less liberty. They want government to have more authority to intrude upon the daily lives of more innocent people. Their targets are the freedoms of speech and travel and the right to privacy. Their goal is public safety, but their thinking is flawed.
The clash between liberty and safety is as old as the republic itself. The United States was quite literally conceived in liberty. In the Declaration of Independence, Thomas Jefferson painstakingly listed the ills and evils of the British government’s administration of the Colonies. There were no complaints about the absence of public safety; rather, Jefferson’s “long train of abuses” cataloged the British government’s interference with the colonists’ personal liberties.
What has made the Declaration so enduring and unique in world history is its unambiguous embrace of the natural law as its explanation of the origin of our rights. The British king thought he reigned by the will of God -- the so-called divine right of kings.
Jefferson, influenced by the British philosopher and political theorist John Locke, turned that belief on its head. He argued that our liberties are natural, even inalienable, because they stem from our humanity, which is a gift from God. How could the same God have given us natural, inalienable personal freedoms and also have given the king the natural right to interfere with those freedoms?
The Declaration’s answer is the profound rejection of the moral legitimacy of any government that lacks the consent of the governed, and its articulation of the Judeo-Christian ethic of valuing human life, and its acceptance of the belief that humans possess inalienable rights “endowed by their Creator.”
Notwithstanding the values of the Declaration of Independence, big government and petty tyranny reared their ugly heads almost at the start of the republic. In 1798, the same generation -- in some cases the same human beings -- that wrote in the First Amendment that “Congress shall make no law … abridging the freedom of speech” also enacted the Alien and Sedition Acts, which punished speech critical of the government. Abraham Lincoln locked people up for speaking out against the Civil War. Woodrow Wilson locked people up for singing German beer hall songs during World War I. FDR locked people up just for being Japanese-Americans in World War II. All of this was later condemned by courts or Congresses -- and surely by enlightened public opinion.
It is in times of fear -- whether generated by outside forces or fomented by the government itself -- when we need to be most vigilant about our liberties. When people are afraid, it is human nature to accept the curtailment of liberties, whether it be speech or travel or privacy, if they become convinced that the curtailment will somehow keep them safe.
But if Jefferson and all the history and tradition of American cultural and legal thought have been correct, these liberties are natural rights, integral to all rational people. I can sacrifice my liberties, but I cannot sacrifice yours. Personal liberty is subject only to due process, not majoritarianism. Stated differently, we can only morally and legally and constitutionally lose our personal liberties when our personal behavior has been adjudicated as criminal by a jury after a fair trial; we can't lose them by a majority vote of our neighbors or our representatives in government or a presidential executive order.
Moreover, the Paris killings, the Fort Hood massacre, and the Boston Marathon killings are all examples of the counterintuitive argument that the loss of liberty does not bring about more safety. It does not. Rather, it gives folks the impression that the government is doing something -- anything -- to keep us safe. Because that impression is a false sense of security, it is dangerous; people tend to think they are secure when they are not. In fact, the government's reading everyone’s emails and listening to everyone’s telephone calls is making us less safe because a government intent on monitoring our every move suffers from data overload.
Because government is buried in too much data about too many folks, it loses sight of the moves of the bad guys. Add to this the historical phenomenon that liberty lost is rarely returned -- as a new generation accustomed to surveillance attains majority, surveillance seems the norm -- and you have a dangerous stew of tyranny. Just look at the Patriot Act, which permits federal agents to bypass the courts and write their own search warrants. It has had three sunsets since 2001, only to be re-enacted just prior to the onset of each -- and re-enacted for a longer period of time each time.
Since the Charlie Hebdo massacre in Paris in January, the police in France have been able legally to monitor anyone’s communications or movements without a warrant and without even any suspicion. Today they can break down any door and arrest whomever they please, and this past weekend, the French Cabinet declared that authorities can confiscate all firearms in Paris. All that gives law enforcement a false sense of omnipotence over the monsters.
Only good old-fashioned undercover work -- face to face with evil, what the professionals call human intelligence on the ground -- can focus law enforcement on the bad guys. And an armed citizenry strikes terror into the hearts of would-be killers and even stops them before they complete their horrific tasks. But don’t try telling that to the French government.
*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.