Judge Andrew Napolitano

Liberty and Safety

By Judge Andrew Napolitano - Thursday, July 25, 2013

When 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 persons, 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 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 persons 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. Since only free persons can consent to a government, the government cannot lawfully exist 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 its 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 only be bias — a continual predisposition toward and preference for freedom.

Every conceivable clash between the free choices of persons 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 will always 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.

COPYRIGHT 2019 JUDGE ANDREW NAPOLITANO/CREATORS.COM


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18 Responses to “Liberty and Safety”

  1. kate says:

    Great article – so shouldn't someone go to jail here for violating someone's rights under our constitution? How do we make the governement stop trying to take our liberty away? I like my liberty.

  2. Mark says:

    Amen……..Thank You Judge

  3. Aleae T Pennette says:

    Again a beautiful article. Thank you Judge.

  4. Daniel Joseph says:

    I saw a bumper sticker yesterday: "Think, before they make it illegal.” Thanks for another great article that helps us think.

  5. Tom says:

    The irony of all this is that it is the GOVT that has made the enemies who want to destroy us. The more enemies they make, it seems that is what this GOVT is most proficient at, the safer they have to make us. All of the spying on us will at best help them find someone AFTER an event has occurred. They were handed the Boston Marathon Bombers by the Russians BEFORE the bombing. How safe were the people of Boston?

  6. Carolanne says:

    Awesome and insightful article as usual.

  7. Lawrence Ekdahl, says:

    The trouble is : The people have been so badly dumbed down by the so called education system and the news media and the lies of government they are now indoctrinated to believe safety is preferable to liberty.

  8. proudtobefree says:

    "The Constitution was created by free men to define and limit the government so it can defend but not threaten our freedoms." ". . . .a majority of all but one cannot authorize the government in a free society to take freedom from that one individual."

    This being the case shouldn't it be possible to take the government to court and argue that reducing freedom of privacy to protect us is in violation of the Constitution? Has this been done? If not who can do t?

    • dan says:

      The problem is that the right to privacy is not explicit but implicit, as in the 4th Amendment. Implicit rights are used successfully by the left on many occasions, but Conservatives seem to have no standing when it come to this issue. The remedy is more conservative or libertarian judges.

  9. IHeartDagney says:

    I hope thousands of individual people send this article to Michelle Bachmann, who is otherwise a great conservative, but went off the rails on this issue.

    • Gill O’Teen says:

      I think she is too busy monitoring her pension plans to concern herself with her oath of office any longer. I also thought she was great, and until she dropped out, she was one of my top choices for the RINOcrat POTUS nomination last year. No longer. I wouldn't vote for her to scoop up after Gary Johnson's neighbor's two dogs. She's finally been flipped and has become one of 'them'.

  10. Gill O’Teen says:

    This is quite timely considering that late last night, the stupid party (RINO) in boner's bordello voted to continue funding of the NSA spy on America program. My own rep so voted and I let him have it both barrels this morning. You should make your own reps ears ring if they did also. If they voted for Liberty be sure to thank them. You can get a top notch account of this treason by doing a Google search on "Jamie Dupree" who's Washington Insider blog is made available at WSB-AM Atlanta. The specific title is: "NSA critics lose in House, but show strength". I'd give you the link, but Mr. Ringer zaps any of my comments containing one.

  11. rogerwickham says:

    I love you, Judge.

  12. State of the <Union> says:

    Beautifully written article!
    The inexorable drive to usurp social power is why Adam was expelled by God from the Garden of Eden. Satan working through the flesh of Adam and His descendents would soon be working endlessly to destroy both God's and man's inalienable rights just as he worked through Cain to destroy the inalienable rights of Abel [by murdering him].

    Hence the need of Christ through the cross to destroy sin and the devil which operate to destroy human society by endless division and ignorance of reality.

    Man will never heal himself collectively. Only the Life and guidance that God offers has the power to unite us into his kingdom on earth. [The Lord's Prayer].

  13. Carol says:

    Thank you Judge, How can God fearing men and women stand up against the
    tyranny that is tearing down out freedoms?

  14. dan says:

    "Liberty is the essence of our natural state. Liberty cannot possibly be equal to a good we have instructed the government to obtain."

    "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,…"

    Liberty is granted by Nature — and/or, as you believe — Nature's God. Safety is the domain of limited government (a necessary evil at best). Nowhere is safety a part of Nature on any level. We are not born with an unalienable right to safety. Therefore, "The two enemies of the people are criminals and government, so let us tie the second down with the chains of the Constitution so the second will not become the legalized version of the first. And, "If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions."

  15. Jay Reid says:

    As usual, Judge Napolitano, you have succinctly stated basic truths that our elected "representatives" do not comprehend, or more likely choose to ignore. I am frustrated by those of my acquaintance who argue that we must give up our liberty so that we may be safe. Is not the acceptance of slavery by internal tyrants under the guise of protecting our freedom from threats by external tyrants a fool's choice?

    I may desire comfort and security, but they are subordinate. My real quality of life demands Liberty first. Without that prime requisite, material wellbeing is meaningless.

    I continue to stand with Patrick Henry — "Liberty or Death"

  16. Teri says:

    Maybe if "we the people" would live a clean life the government wouldn't be so interested in spying on us. So many of us scream about our rights. And how many of the screamers are living on the dole?
    Just something I have observed at my work place. Management only spies on the ones screwing off all day.

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