Wednesday, June 8, 2011

The Unfree States of America

By Tim Dunkin


Are Americans freer now than they have ever been?  I would answer this question with an emphatic "No!"  Indeed, I fail to see how any other answer could be given.  In a country where property owners can't use their own land because a snail darter lives on it, where citizens cannot own "scary-looking" firearms because of left-wing hoplophobic judges and legislators, where the police arrest Christians for handing out Gospel tracts on a public sidewalk in Dearborn, Michigan (because it might "offend" Muslims, you know), and where law-abiding citizens can be (and have been) victimized by police agencies that refuse to abide by the Constitution, how could anybody assert that we're freer now than at any time in the past?


                Freedom is not something that just happens.  Freedom requires effort.  It requires the continuous application of energy to stave off the entropic effects of human complacency.  When we the people get comfortable and fat and happy, we tend to forget that our freedom was paid for in blood and codified by the supreme intellectual and moral efforts of a generation of warrior-statesmen who took the bold step of trusting not in the authoritarian power of a king, but in the people themselves to govern themselves.  In forgetting this, we then throw away the sacrifices and effort that were made, trading in our self-government for other-government.  This is because self-government is hard, both in the personal, moral sense of controlling our own behavior, and also in the political sense of acting as an informed, engaged citizenry who steps forward to participate in our own governance.  It's much easier to just throw self-control to the wind and let the government clean up after us and keep us from getting into too much trouble.  And once the government gets a taste of that control, its appetite for more becomes insatiable.  That's where we're at today.


                Let's face it, in many ways our country is becoming a police state – one where the "needs" of "security" overrule and outweigh the necessity of liberty on the part of the citizenry.  This is in large part because our people have allowed it to be so.  We've decided that it's easier to let an overweening government control our lives and keep us out of trouble than it is to either exhibit self-control, or to deal with the consequences of our actions, both personally and communally.  It's to the point where even in situations where, theoretically, it would be proper for the government to exercise a role, we find that it does so in such a heavy-handed and totalitarian manner that the solution to the problem is worse than the problem itself.


                Take, for example, the "War on Drugs" that has been going on for decades now.  I will certainly agree that it isn't conducive to a healthy society to have millions of people on hard-core drugs like meth, cocaine, crack, PCP, and so forth, drugs that really do create paranoid, destructive, and violent behavior in those who use them.  But is also isn't conducive to a healthy society for the police to use the "War on Drugs" as an excuse for turning into a paramilitary occupying force, either.  And that is what has happened – even in dealing with non-violent offenders using relatively soft drugs like marijuana or heroin. 


                Let's face it – the "War on Drugs" has given cover to a lot of nasty types of behavior on the part of police agencies across the country.  It seems that the preferred method of executing a drug warrant now is by means of a SWAT-style no-knock raid in the middle of the night – referred to euphemistically as a "dynamic entry" – in which dozens of officers in body armor and armed will fully automatic weapons bust down the door to the recipient's home and come swarming in to point guns at the family's heads, typically shooting the family dog in the process (it's reported that SWAT teams even refer to their rifles as "hushpuppies" because of the policy on shooting any dogs on the premises, whether they're presenting a threat or not). 


                My question is, what kind of an idiot thinks that this is in any way a reasonable method for "executing a warrant," except in the most extreme circumstances where it is almost certain that heavily-armed gang members are ready and waiting for the police? 


                Yet, we see this type of thing all over the country, and it has been becoming more common.  It's also extending to other warrants besides those involved with drug cases.  Often, these types of raids occur because of spurious informants – those who even have a history of unreliability, or who are informing simply because they don't like their neighbor and want to cause trouble for them.  Many of these raids have taken place at wrong addresses, and law-abiding homeowners have been shot and killed defending their homes from armed, thuggish invaders who did not identify themselves as police, and who shot first.  Sure, everybody makes mistakes, and I can understand how the police might get the wrong address occasionally – but the consequences are much less detrimental when it's just a matter of a deputy politely knocking on a door, and then finding out he wants the house across the street.


                Take the case of Jose Guereno in Tucson, Arizona.  Here you have a Marine (veteran of two tours of duty in Iraq) whose door was busted down in the dead of night, who took steps to defend his home and family against unknown armed intruders, and was shot several dozen times, without his ever taking a shot first.  The police claim they identified themselves before entering, yet nobody seems to remember hearing them do so.  If they did, it was probably done in that "technicality" sort of way, in which they will shout "Police!" at the same time they are busting the door in, which obviously is not going to be perceived by somebody who is still in the process of waking up from a deep sleep, and which is obscured by the noise of the door coming down.  That technique has been used numerous times across the country too, and serves only as a way of absolving police officers of any trouble they might get into from civil rights lawsuits after the fact.


                But Guereno wouldn't be dead today, leaving behind a wife and a two young sons, if the police had simply acted like civilized civil servants, rather than jackbooted Nazis. 


                These raids aren't the only way in which the "War on Drugs" has been used to overturn the Constitution.  Take property forfeiture laws, for example.  These laws largely originated as a way of fighting the drug war by preventing drug dealers from enjoying the fruits of their crime – it was felt that it didn't do a whole lot of good to send these guys to prison for a couple of years, but allow them to continue to drive around the fancy cars and whatnot that they got from drug money after they got out.  Hence, the idea was (initially, at least) to create a disincentive by allowing the government to confiscate any property or money that was connected with dealing drugs. 


Like most other government "solutions," this one has simply turned into another source of oppression and government largesse.  In many jurisdictions, these laws are written in such a way that the government does not need to actually obtain a conviction to be able to confiscate property.  They merely need to charge you with a crime (these laws, by the way, have extended far beyond the drug issue), and it's bye bye personal property.  In most cases, the revenue from the sale of items and the confiscation of cash is funneled back to police departments – which obviously gives these agencies an incentive to more aggressively pursue anybody who can be considered "suspicious" on these grounds.  In some cases I've read about, the mere fact of having large amounts of cash in your home or car or on your person is considered "suspicious," and confiscation can take place – in some cases, formal charges weren't even filed.  I've even read about one sheriff's department in a rural county in Alabama back in the 1990s where the deputies would stop out-of-staters for contrived reasons, search their vehicles, and confiscate any cash they found (which was common, since travelers will tend to have larger amounts of money on them for travelling expenses), accusing them of being drug dealers and intimidating them into not fighting the confiscation with threats of prosecution.


All in all, I am thoroughly unconvinced that the "War on Drugs" is worth the destruction to our Constitution and civil society that has been wrought.  I say end it now.  I am perfectly willing to deal with a few potheads and crack addicts, rather than with a militarized police apparatus which basically has been given carte blanche immunity by the government to act in any manner it chooses.  I say that it's time to demilitarize the police, end the practice of no-knock raids, prosecute those officers and agencies who continue to conduct them, and restore our 4th amendment protections.   We have reached a point where the supposed zeal for "law and order" has created a thoroughly lawless, unconstitutional police apparatus – and too many professed conservatives support this monstrosity in a misguided belief that it "helps protect society."  Yet, if we were really serious about ending the drug problem, we would get serious about protecting our borders and interdicting the flow of drugs (and the people who carry them) into our country. 


                Coupled with all of this is the fact that the ability of the people to defend themselves and their homes from the police is being taken away.  It's gotten to the point where one Indiana judge, Stephen David, writing the majority opinion of a recent Indiana Supreme Court case, basically said that citizens have no right to defend themselves from police or to hinder the police in any way from entering their homes, etc.  His argument was that if citizens want to contest an illegal, warrantless entry of any sort, then let them take it to the courts after the fact.  In other words, don't expect the Constitution to protect you at the point in time when you actually need that protection.  Naturally, this judge wants people to take it to the same courts who just approved the violation of their constitutional rights to begin with – which does not inspire a lot of confidence in actually seeing justice done in a case of police overreach.  Not incidentally, within a couple of days of this ruling, one sheriff in Indiana went on record as saying that this would make it much easier for his department to engage in random or house-to-house searches if they wanted to, which suggests that the interpretation of this ruling by police agencies is pretty much along the lines feared by liberty lovers.  Fortunately (for now), this is confined to the state of Indiana.


                The whole premise of this judge's argument is flawed, when we look at it from a liberty perspective.  To have liberty, the people must be secure in their person and property – not just from common criminals, but also from the government.  To the extent that the people are not allowed to protect themselves, even from police officers when those officers are acting unconstitutionally, you have nullified the practical ability of the people to enjoy and exercise their liberty.  This promotes a dangerous attitude of deference towards the police and the government in any and all circumstances, even when the police and the government are themselves violating the supreme law of the land.  Frankly, I think that the rights of the people trump any concern of government, even the safety of police officers – because if police officers are acting in tyrannical and unconstitutional ways, then they ought to fear for their safety, and their safety should be in jeopardy.  I'll come right out and say it – I think homeowners ought to be able to protect themselves against police officers who are illegally executing unannounced, warrantless (or de facto warrantless) raids on private homes in the middle of the night, just like they can a common criminal who attempts a home invasion.  Further, I think the same laws should apply in these cases as would apply in a criminal, non-police home invasion.  The homeowner (if he survives) who defended his home in good faith ought to be immune from prosecution, just as if he protected his family from a gangbanger who tried to break in.  Likewise, police officers involved in the raid ought to be liable for prosecution on capital murder charges should the homeowner be killed.  This would probably go a long way towards making the government think twice about what it's getting ready to do.   Does this sound extreme?  It's only because liberty itself sounds extreme to too many of our people nowadays. 


                After all, our people need to make a choice – are we the masters in our society, or are the police agencies and the government?  Which was originally intended by our Founders who gave their blood and livelihood to give us an inheritance of freedom?  If we the people are the masters, then I think the government and its agents should be fearful of our wrath.  There should be a righteous indignation on the part of the people that serves to rein in and limit the ability of the government to act however it likes.  Concurrently, there should be a fear on the part of government employees at offending and abrogating our unalienable rights expressed (not granted) in our Constitution.  Yet, there's just not that sense of awe before the rights of the people.


                Keep in mind that all of this is not said to paint all police officers as perpetrators of these crimes against our liberty.  There are many police officers who really do have the best interests of their communities and the people at heart.  Many police officers are good people who respect the rights of the citizens, and who take seriously the mandate of their profession to "protect and serve."  It is not these folks that I am writing about.  Instead, much of the problem is systematic and administrative.  It's the fault of the government that has continued to prosecute the failed and anti-constitutional "War on Drugs," forcing police officers to go along.  It's the higher level bureaucrats within police departments who decide to militarize their forces and order them to pursue unconstitutional activities.  Your average police officer, while still responsible for his own actions, is in many ways being forced to participate, or else lose his livelihood.  Understandably, that puts a lot of pressure on them – it doesn't make it right when an officer participates in an illegal raid or confiscation, but it does make it understandable why they'd feel pressured to do so.


                I've gone on and on (at length) about the unconstitutional activities of many of our police agencies, but this is certainly not the only area in which our nation is becoming a police state.   There is also the denigration of the rights of the states and the people vis-à-vis the federal government.  We are seeing the proper balance between the state and federal entities be destroyed, that federalism that was enshrined into our Constitution.  Keep in mind, when we talk about federalism, we're not talking about the proper amount of power that the federal government "lets" the state governments have.  Viewing "federalism" through the lens of hierarchy – that the federal government is "above" the state governments in some sort of intrinsic and absolute sense – is the wrong way to look at it, I believe.  Rather, the state and federal governments share powers that are divided by sphere of interest – the federal government is supposed to provide a theoretically neutral arbitrator in issues between states, and represent the federation in its dealings with foreign powers, as well as a few other powers delineated in the Constitution.  Per the oft-forgotten 10th amendment, pretty much everything else is the province of the states.  In a sense, most of the effective "power" of government is supposed to belong to the states. 


                This is a liberty issue.  One of the benefits of federalism that is supposed to allow it to serve as a check on the pretensions of an overbearing national government is the fact that the spreading out of power and authority among the states should prevent a universally-applied tyranny.  If one state goes sour and starts to misuse its powers, people can escape and move to another, more freedom-friendly state.  However, if the federal government overreaches (as it is today and has been for decades), and is not hindered effectively in the application of its power (as it is not, thanks to the idiotically broad judicial interpretations surrounding the Interstate Commerce Clause), then there's nowhere for the citizen to turn, other than emigrating to a foreign country (which is not likely to be much better than it is here, frankly). 


                In all fifty states, the citizen faces the same unconstitutional EPA regulations on land use, water use, air use, and every other use. In every state, we all deal with the same Bureau of Land Management taking our land or hindering our use of it.  We square off against the same TSA unconstitutionally violating our 4th amendment rights.  We all have to deal with the same BATFE acting against our 2nd amendment rights, whether we live in Alaska, Maine, Hawaii, Florida, or anywhere in between.  There's no place to go to get away from it all.  It's bad enough if a California or a Massachusetts gets overbearing – it's intolerable when that power is transferred to the federal government. 


        This brings up yet another assault on our liberty, which is that even at the state and local levels, there is the fact of increasingly intrusive regulation that operates far beyond the intentions and principles of liberty promoted by our Founders.  In fact, state and local governments seem to specialize in the nagging little regulations that do so much to make our daily lives annoying and expensive.  You need a permit to build a treehouse for your kids.  You need to be licensed to start a small business.  You have to wear a helmet when you ride your motorcycle.  In municipalities all around the country, people are forced by the police powers of the state to spend their time sorting their trash by recyclables, to make sure that only just so much and no more of their own property area is covered by "impermeable layer," to yield the use of their land to "green way" or other environmental initiatives, and so forth.  And think about this – while we conservatives rightly grouse about the unconstitutionality of Obamacare and its individual mandate that forces people to purchase health insurance, we've already helped set the stage by going along with, and in many cases calling for, these sorts of regulations that do the same thing – make people spend time and money buying and doing things to meet a regulatory requirement.  After all, if you have to wear a helmet to ride a motorcycle instead of being free (the intelligence of the decision is another matter) to choose to take your safety into your own hands, then you will have to go out and buy a helmet – to satisfy the regulation, you were essentially forced by the government to buy something you might not otherwise have purchased.  Same goes for all the little permits and fees and whatnot that you have to buy and pay to use your own property, and so forth. 


        This is a 9th amendment issue.  If you will recall, the 9th amendment is the other amendment in the Bill of Rights that we never hear about today, and it says,


"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."


        While often spoken of in tandem with the 10th amendment, we need to keep in mind that this amendment is not about federalism.  The 10th amendment speaks of the states retaining the powers that have not been specifically delegated to the federal government, nor specifically denied to the states.  The 9th amendment, on the other hand, refers to the rights of the people, and is referring to the specific enumeration of rights in the previous eight amendments.  What it is saying is that the specifically enumerated rights are not the only ones that the people have, and that just because the Constitution and the Bill of Rights do not particularly mention some particular area or activity does not mean that the people do not retain their natural liberties in that sphere. 


        As an example, take the right to freely travel as we see fit.  Now, the Constitution nowhere states that we have this right.  It nowhere guarantees that we're free to hop in our cars and go where we like, or to contract with a private airline or shipping service to take passage in an airplane or on a ship.  Yet we still have this right, as a natural, unalienable liberty, even though it is not specifically enumerated in the Bill of Rights.  Another example – while the Bill of Rights guarantees us the right in the 4th amendment to be free from unreasonable searches and seizures of our property, that document never says that the people have the right to own or use any specific piece of property, whether real or personal.  It never says we can own a motorcycle, or build what we like on our own land.  Nevertheless, per the 9th amendment, we still retain the right to these things because they are simply a part of natural liberty – it is an essence of liberty to be able to own and use what we like, so long as we're not hurting somebody else in the process. 


        As such, the 9th amendment was intended to have a very broad application, since there are a myriad of things that are never mentioned in the previous eight amendments.  That's the essential fact of liberty – we can do what we want, as long as we're not harming someone else.  That's the basic premise of Lockean commonwealthianism – governments are formed by the consent of those forming them, for the purpose of safeguarding their natural liberties from the predations of other men in the "state of nature." 


        Yet, I've run across some who profess to be conservatives who are deeply offended by the broad understanding of the 9th amendment.  "Don't you realize," they exclaim alarmedly, "that taking the 9th amendment that way would mean that people would be free to do all sorts of bad things they shouldn't do???"  Insofar as the bad things that they do harm only themselves, and not others, my answer is "Yes."  The 9th amendment means that if people want to fritter away their wealth by gambling or drink, if they want to smoke cigarettes (or marijuana), if they want to watch things on TV that they shouldn't, or listen to music that they ought not, then they have the liberty to do so, even though I deeply disagree with all of those things and find them to be immoral and ungodly.  I, certainly, have the freedom to tell them that they shouldn't do these things, but I don't have the right to use the police powers of the state to make them refrain from these activities. 


        To put it bluntly, liberty means that you're free to mess up your own life if you want to.  It doesn't mean that I can forcibly nanny you so as to prevent you from doing so, as long as it's only yourself that you're hurting.


        This must be the way we understand the 9th amendment, if we're to escape the clutches of the regulatory nanny state.  First, this is truest to the actual wording of the amendment itself – and remember, we're supposed to approach the Constitution from a grammatical-literal perspective if we're not going to be chasing after our own penumbras of meaning in our own version of a "living, changing" document.  Second, understanding this amendment this way is truest to what liberty actually is.  It's most faithful to the spirit of liberty that animated our Founders, our Constitution, and our nation.  You don't have a free society when people can't make their own free choices for their own individual lives. 


And it is this spirit of liberty that is lacking in American, certainly among those on the Left, but also even among many on the right.  This is why we see so much of this "conservative big government" nannying and social engineering going on. 


We need to get back to the spirit of liberty in America.  We need to get serious about forcing our government and its agents to respect the unalienable rights of the people.  We need to start electing people who will be serious about liberty.  I would love to see legislators elected to Washington and to our statehouses who, instead of trying to find the next "problem" to solve and the next regulation to apply that we desperately "need," would instead work to remove laws from the books.  I would be ecstatic if we could see a legislative session that actually resulted in the U.S. Code becoming thinner, for its burden on the people would then be lighter.  Will we get back this animating spirit of liberty?  Only if we are willing to make the sacrifices necessary to do so.  Complacency can no longer be an option.