Whose freedom in America is safe today?
In the years following the adoption of the Constitution, before he was Secretary of State under President Thomas Jefferson and then president himself, James Madison, who wrote the Constitution, was a member of the House of Representatives. During that period of his life, he gave illuminating speeches and wrote elegant essays and letters about human freedom.
In one of his essays, Madison noted that freedom came about in Europe when the people rose up and cast off or intimidated tyrants, who reluctantly granted the people the freedoms they sought. That was, in Madison’s words, “power granting liberty.” The American experience was the opposite, he argued. After we seceded from Great Britain, the free people of the 13 independent states voluntarily came together and through the states delegated discrete amounts of power to a central government. That was, in Madison’s words, “liberty granting power,” especially since the people reserved to themselves the liberties they did not delegate away.
Much of the political class of the founding generation, unlike our own, viewed the Constitution as restraining, not unleashing, the government. They recognized along with Madison and Jefferson that natural rights — areas of human behavior for which we do not need a government permission slip — are truly inalienable. An inalienable right, like speech, worship, travel, self-defense and privacy for example, is one that cannot be taken away by majority vote or by legislation or by executive command. It can only be taken away after the behavior of the person whose restraint the government seeks has been found by a jury to have violated another’s natural rights.
This process and these guarantees are known today as the presumption of liberty. Stated differently, because of our recognition of natural rights, and our history, values and written constitutional guarantees, we in America are self-directed and free to make our own choices. In fact, the constitutional guarantee of due process mandates that because our individual liberty is natural to us, it is always presumed; thus, it is always the government’s obligation to demonstrate our unworthiness of freedom to a judge and jury before it can curtail that freedom. It is not the other way around.
This past week has seen disturbing events in which the government, as if in “Alice in Wonderland” mode, has punished first and insisted its victims prove they are unworthy of that punishment. The IRS, for example, revealed that it has been seizing the contents of bank accounts of folks whose taxes have been fully paid. It has done so pursuant to a federal statute that permits confiscation if the government detects a series of bank deposits that appear to be structured so that a significant number of them are below $10,000. That number triggers a bank obligation of reporting the deposit to the feds.
Written by ANDREW P. NAPOLITANO
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