OPINION:
“The means of defense against foreign danger have been always the instruments of tyranny at home.” — James Madison (1751-1836)
America today would terrify the Founding Fathers. Armed troops roam the streets of major cities, masked government agents arrest people without probable cause and disrupt the public speech the president hates and fears, and the president kills foreigners on the high seas who he says might commit crimes should their small speedboats miraculously make it 1,500 miles to the United States.
Here is the backstory.
Shortly after the Constitution was ratified, while the Bill of Rights was being crafted, the Federalists in Congress proposed the creation of a federal bank. James Madison, who had been the scrivener at the Constitutional Convention just four years earlier and who was chair of the House of Representatives committee drafting the Bill of Rights, argued forcefully against it.
In Madison’s speech on the Bank Bill, he articulated the views he offered when he wrote his portion of the Federalist Papers — namely, that the powers of the new federal government are few and limited and precisely written down, and establishing a bank is not among them.
Madison lost the debate as Congress approved the First National Bank of the United States. His argument, though, generally carried the day for the next 120 years, except for the Civil War era. That argument, known today as the Madisonian model, offers that the federal government may govern only in the 16 discrete areas of governance articulated in Article I of the Constitution.
The subtext of the Madisonian model was that the feds need the permission of the states or the people to do nearly anything. Safety was left to the states, and there would be no troops in the streets as the Colonists from Boston to Charleston had endured with British soldiers. The Fourth Amendment, guaranteeing the right to be left alone, would apply to all people and keep the government away from the people’s “persons, houses, papers, and effects” without search or arrest warrants.
By 120 years later, the Madisonian model had been discarded. The states lost their powers as checks on the federal government they had created, and the Wilsonian model, named after Woodrow Wilson, took effect. This model holds that the feds may govern in any area for which there is a national political will, except that which is expressly prohibited to them in the Constitution.
The subtext of the Wilsonian model is that the states and the people need the permission of the feds to do nearly everything. Those prohibitions — such as “Congress shall make no law abridging … the freedom of speech” — well, they apply only to Congress, not to the president. Wilson actually made this legally erroneous and law-school-flunking argument when defending his arrests for speech he hated and feared.
Every president from Wilson to Donald Trump has wittingly or unwittingly embraced the Wilsonian model, and so has every Congress.
The growth of government and the diminution of personal freedom are often tied to wars and economic crises — real, created for this purpose and imagined. History teaches that personal liberty once lost does not come back and government power once acquired remains.
The lessons of history, as instructive as they have been, are lost on Mr. Trump’s presidency. Three events he triggered are instructive here. The first is killing noncombatants at sea, the second is disrupting lawful free speech, and the third is the arrest of people and the acquisition of private data without judicially issued warrants.
The killings at sea will soon reach a federal court as the families of innocent murdered fishermen, and some survivors of botched killings, have signaled to the media their intention to bring actions against the government. Mr. Trump says the killings at sea are a war against foreign powers.
Meanwhile, the same office in the Justice Department that told President George W. Bush that he could torture people and President Obama that he could kill nonviolent Americans overseas has apparently told Mr. Trump just what he wants to hear: that he can wage an undeclared war on select foreign people and keep secret the legal rationale for doing so. Where is that in Madison’s Constitution, which says only Congress can declare war?
Second, in September, Mr. Trump directed federal agents to disrupt speech that is anti-Christian, anti-capitalism or un-American, and to use their own judgment as to which speech to disrupt. Never mind that all political speech is protected from government interference and never mind that Mr. Trump took the same oath as Madison and Wilson: to protect the same First Amendment rights.
Third, this spring, the Department of Homeland Security began arresting Americans and foreigners on suspicion of unlawful presence in the United States. They do this without arrest warrants based on probable cause of crime, and they wear masks so as to startle victims and retard identification in subsequent court proceedings.
Secretly, they have begun collecting biometric data on people they encounter — facial structure, iris sizes and touchless fingerprints (all of which they can acquire from a distance with their mobile phones) — without warrants. The Fourth Amendment expressly prohibits searches and seizures without judicially issued warrants based on probable cause of crime.
If all this were not enough to rouse Madison from his grave, there’s a new phenomenon in law called “The Kavanaugh Stop.” This is derived from a bizarre concurring Supreme Court opinion recently written by Justice Brett M. Kavanaugh in which he argued that race, ethnicity and presence at a car wash are permissible characteristics upon which the government may stop and demand to see papers. If the feds stop you, he opined, it’s no big deal. Just show them your papers; prove your citizenship.
In Justice Kavanaugh’s strange new world, East Germany has been reborn here. That’s just what the Founders feared most.
• To learn more about Judge Andrew Napolitano, visit https://JudgeNap.com.
Please read our comment policy before commenting.