The State Is Trying To Throttle Us

May 16th, 2013

Peter Nolan

Storm Clouds Gathering

by
Andrew P. Napolitano

Recently
by Andrew P. Napolitano: Why
We Should Mistrust the Government

Government
is bad for personal freedom. That argument is premised upon the
truism that everything government does interferes with freedom because
it either prohibits or compels. Everything it owns it has taken
from others. Much of what it says is divorced from the truth. President
Obama, like President George W. Bush, has argued that his first
job is to keep America safe, and if he impairs personal freedom
in the process, that is a small price to pay for safety. Many of
my colleagues in the media on the left and right have bought this
argument, notwithstanding its fallacies.

Until now.

This past week,
we learned that the IRS has targeted for additional scrutiny the
tax exemption applications of groups with whose messages it disagrees.
We also learned that the Department of Justice obtained the personal
telephone records of hundreds of reporters and editors employed
by the Associated Press without a search warrant issued by a judge.
And during this past week we learned that the White House, the Department
of State and the CIA all engaged in a conspiracy of disinformation
so that the official version of events of what caused the murders
of four Americans at our consulate in Benghazi, Libya, would not
impair Obama’s re-election campaign in 2012.

The common
threads in all of this government secrecy and lying are a general
rejection of government’s moral obligation to tell the truth, a
disturbing yet brazen willingness to evade and avoid the restrictions
the Constitution has deliberately built around government, and a
glib admission that the government can do as it pleases so long
as it can politically get away with it.

The Constitution’s
Equal Protection Clause requires that the government treat all similarly
situated entities in a similar manner. The Constitution’s First
Amendment prohibits the government from using the speech and expressive
activities of persons in America as a basis for the disparate treatment
of them.

Thus, on its
face – that is, on the basis of what the IRS has admitted and without
any further investigation – we have violations of these constitutional
principles. If the IRS were to examine the applications for tax
exemption of Media Matters with the same level of scrutiny as it
does with Tea Party Patriots, it would not run afoul of these principles.
But Congress has given the IRS broad latitude to scrutinize the
behavior of the taxpayers it chooses to scrutinize, and the IRS
has given itself authority to probe, prod and plunder wherever
it wishes. I say “given itself,” because the IRS has rule-making
power, which when overlooked by Congress (as is almost always the
case) actually serves to enhance IRS powers beyond what Congress
permits.

Short of criminal
behavior such as bribery or conspiracy, the IRS employees who have
singled out applications for tax exempt status for more scrutiny
based on anticipated political expression are subject to removal
from office, but they cannot be prosecuted or sued. Here again,
Congress is to blame, as both Republicans and Democrats have used
and abused the IRS to their advantage, and neither party inwardly
wants laws that will prevent it from doing so in the future. Is
this what you expect of our tax collectors?

The First Amendment
also assures the right of professional journalists to seek and protect
their sources, and it gives them immunity from government prosecution
or retribution for truthfully publishing matters of material public
interest, even when it involves information stolen from the government.
The Supreme Court taught us this in the Pentagon Papers case.

Moreover, the
Fourth Amendment requires that if the government wants private information
about who stole its secrets, it needs a search warrant from a judge.
But the Patriot Act, which was celebrated by some in the media whose
telephone records have since been seized, permits federal agents
to write their own search warrants when they seek records from a
third party like a telephone company and can claim that pursuit
of terrorists is at stake. The Patriot Act makes a mockery of the
Fourth Amendment, and the government knows that. When the government
chills free speech, we all suffer. Thomas Jefferson preferred newspapers
without government to government without newspapers. Whose personal
records will the government authorize itself to seize next?

The lesson
of Benghazi is that we had no lawful right to interfere in the domestic
affairs of the Libyan government. It was unlawful for Obama to bomb
Col. Gadhafi without a congressional declaration of war. The organized
assault on our consulate was the unintended consequence of us using
force to infuse American-style democracy on a people whose culture
is unable and unwilling to accept it.

But the president’s
people were terrified that the murder of our ambassador to Libya
during the 2012 presidential campaign might impair Obama’s re-election
chances. So they and he tried to rewrite history, and the more they
and he lied the more they and he needed to lie to cover up their
original lies. Would you retain an employee who lied to you about
the deaths of innocents and lied more to cover up the original lies?

Now, back to
Bush and Obama and the president’s job. According to the Constitution,
the president’s first job obligation is to preserve, protect and
defend the Constitution. According to the Constitution, that means
preserving Americans’ freedom first and safety second. Freedom is
our natural state and is the ultimate natural right. Safety is a
need that we ourselves can provide when unimpeded by the government.
If the president keeps us safe but not free, he is not doing his
job. Do you know anyone who feels freer or even any safer because
the government trampled personal freedoms and so far has gotten
away with it?

Reprinted
with the author’s permission.

May 16, 2013

Andrew P.
Napolitano [send
him mail], 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. The most recent
is Theodore
and Woodrow: How Two American Presidents Destroyed Constitutional
Freedom. To find out more about Judge Napolitano and to read
features by other Creators Syndicate writers and cartoonists, visit
creators.com.