By Janet Levy
The U.S. Constitution, which has guided American society for over two centuries, inspiring nations worldwide and serving as a model for governance, is under serious threat today. Ironically, that threat comes from the very individuals charged with protecting the Constitution — federal, state, and local government officials.
All these public officials take an oath to support the Constitution and to refrain from actions or laws that interfere with individual rights and liberties specified in the Constitution. Yet President Obama and officials all along the way down to local police chiefs are today actively engaged in the daily shredding of the U.S. Constitution.
The Obama administration has expanded its executive branch powers under a comprehensive czar system and myriad executive orders. Meanwhile, Congress quietly passes questionable legislation with the potential to limit personal freedoms — and U.S. agencies, such as the Department of Homeland Security (DHS) and the Department of Justice (DOJ), engage in activities that raise serious concerns about constitutional violations. Even local law enforcement officials have become increasingly intrusive and hostile to civil liberties.
Several dramatic examples illustrate this growing problem and highlight the need for increased vigilance and public scrutiny if we are to remain a constitutional republic with our individual rights intact.
Obama has established a precedent of not working with legislators from both parties to pass congressional bills, instead resorting to changing laws and policies through executive fiat. With over 40 czars controlling various functions, he has structured a second tier of unaccountable government officials that operate behind the scenes away from the glare of public scrutiny. This shadow government undermines Congress, the people’s representatives, and the Cabinet secretaries who undergo a Senate vetting process. It subverts the foundational principle of government by representation for government by proxy.
A dramatic example is the Council of Governors, established in January 2010 when Obama signed Executive Order 13528. The stated intent was to solidify the relationship between the federal and state governments and protect the nation. State governors representing ten FEMA regions in the United States were appointed and serve at the pleasure of the president to “represent the Nation as a whole.” Their duties include “reviewing matters related to the National Guard of the various states, homeland defense, synchronization and integration of State and Federal military activities in the United States[.]”
Also on board are the secretaries of defense and homeland security, the U.S. Northern Command commander, the commandant of the Coast Guard, the chief of the National Guard, and other federal officials. The secretary of defense designates an executive director.
One small problem: the Council in effect ignores the 1878 Posse Comitatus Act, a law that bars the military from exercising domestic police powers. The Council’s existence also erodes the power of the states and their ability to control their militias.
Meanwhile, on Friday afternoon, March 16, with little fanfare, Obama issued another executive order, the National Defense Resources Preparedness Order. In this one, he granted himself absolute power over all American resources during times of peace and national emergency, including food, water, livestock, plants, energy, health resources, transportation, and construction material — all without the consent of Congress and the American people. Although this represented an amendment to an existing order, the new phrase, “under both emergency and non-emergency conditions,” fueled speculation that the new order could allow peacetime martial law.
As for who has the authority to declare war, the Obama administration apparently believes that it has no need to consult Congress, although the power to declare war is clearly enumerated to Congress in the U.S. Constitution. In March, Defense Secretary Leon Panetta denied any need for Congressional involvement and explained that the administration would instead seek permission from NATO and the U.N. for an “international legal basis” to commit U.S. troops abroad. This, despite the fact that our country’s founders clearly specified that only Congress shall declare war so that the People could be closely involved in a decision that could gravely impact their lives.
Congress, meanwhile, in February passed the Federal Restricted Buildings and Grounds Improvement Act of 2011. Signed into law by President Obama in March, the act empowers the Secret Service to designate areas in which free speech, association, and redress of government grievances are prohibited, even temporarily for specific events or if individuals are attending who are protected by Secret Service. Under the Act, anyone who congregates in a restricted area may be prosecuted and, if found guilty, imprisoned for up to ten years. In other words, Secret Service agents may decide where to create “no free speech zones” in which protests may be banned and protestors subject to arrest. This constitutes blatant government suppression of speech.
Also in February, Congress passed a $63-billion FAA appropriations bill, H.R. 658, that could result in up to 30,000 unmanned aerial vehicles surveilling the United States by the end of the decade. The bill authorizes the government to fly across the country conducting warrantless aerial searches but fails to address serious privacy issues raised by the drones. These unmanned aircraft have sensitive surveillance technology to see, hear and record, including GPS, high-power zooming, infrared, ultraviolet, and see-through capabilities.
Also involved with drones is the Department of Homeland Security (DHS), currently building its drone fleet for deployment along U.S. borders, allegedly to curtail the flow of human trafficking, weapons, and contraband. This stated use for DHS drones seems suspect in light of a recent DHS order for an unprecedented 450 million rounds of hollow-point ammunition. As has been demonstrated in Afghanistan and Pakistan, drones are capable of being weaponized and also hacked and captured by opposition forces. All of this deserves heightened concern in light of the ill-fated Fast and Furious operation, in which the Bureau of Alcohol, Tobacco, Firearms and Explosives, under the supervision of the Holder Justice Department, put weapons into the hands of Mexico’s narco-terrorists and then lost track of the firearms. The guns were linked to crimes, including the murder of a U.S. Border Patrol agent.
Further, recent policies belie the stated purpose for employing drones. The Justice Department is suing Arizona, Alabama, South Carolina, Georgia, and Utah for upholding immigration laws that are mirror-images of federal illegal immigration statutes, and the DHS is blocking deportation of illegal immigrants. Meanwhile, Obama signed an executive order to stop the automatic deportation of illegal aliens.
On the local government level, the New York police department is testing gun detection technology with a scanner placed on police vehicles to reveal concealed weapons. This could constitute a violation of Second Amendment rights to bear arms as well as a challenge to the 4th Amendment, which prohibits illegal search and seizure. Broad use of this new technology represents a trespass on personal property for information-gathering when a reasonable expectation of privacy exists and law enforcement lacks a judicially sanctioned warrant, which would check police power.
Police have also stepped up their attacks against the First Amendment right to religious expression. In May 2010, when junior high school students from an Arizona Christian academy visited the U.S. Supreme Court on a field trip and stopped to pray outside the building, a police officer abruptly interrupted their prayers and ordered the group to stop. The students were told they were violating the law. Later, a public information officer for the court stated that no policy prohibits prayer.
In Dearborn, Michigan, in June, 2010, a pastor and two lay Christians were arrested outside an Arab festival, under the pretense that they were blocking a tent entrance, creating a public danger, and “screaming into a crowd.” Video footage of the event clearly showed that this was untrue. Last year, an assistant evangelical pastor from a Southern California church and two church members were arrested by the California Highway Patrol for reading the Bible outside a DMV office to those waiting in line almost an hour before opening time. Although the Christians were 50 feet away from the entrance, they were cited for “impeding an open business.”
On an individual basis, any of the above orders, laws, and actions might seem innocuous and make concerns over government usurpation and abuse of power seem exaggerated and unsubstantiated. However, taken collectively, they represent an alarming trend of a small and steady overthrow of our constitutional guarantees and liberties by elected representatives and unelected government officials.
At a time when the president is using the EPA to limit access to vital energy resources and to impinge on private property rights and has instituted an unpopular, unprecedented mandate to purchase government health care under threat of legal action, the fight for constitutional restraint couldn’t be more critical. If Americans can be ordered to purchase health care and prohibited from the free and clear use of their private property, where does it end? Are our rights, guaranteed under the U.S. Constitution and the Bill of Rights, safe?
The Constitution’s unprecedented fundamentals — separation of powers among the three branches of government with its enumerated powers and checks and balances, the principle of limited government and the concept of a government that exists solely to represent the interests of the governed — were exquisitely designed to protect the natural liberties of the people and prevent government tyranny. The Bill of Rights, the first ten amendments to the Constitution, guarantees specific personal freedoms, limits the government’s power in judicial proceedings, and reserves all unspecified power for the states. The time to reaffirm and reinvigorate these constitutional principles, to limit government power, and to preserve individual liberties is now.
Read more: American Thinker
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A while back The New York Times Magazine ran what amounts to a puff piece about Harvard Law Professor Cass Sunstein, President Obama‘s long-time friend, former colleague and one of America‘s regulation czars. It was penned by Benjamin Wallace-Wells, who is identified as “a contributing writer for the magazine and a contributing editor for Rolling Stone” magazine.
The essay was a decent enough account of Sunstein’s career and personal life but it focused only upon one of his significant and controversial ideas, namely “nudging” or “libertarian paternalism.” This is the belief in a system of government regulations that amount to creating incentives for people to do the right thing (as per how the government or Professor Sunstein see it, of course). Instead of coming down on what government considers objectionable or undesired human conduct with a sledgehammer, nudging works by setting up various tricks with which people are led to act in the way the government people intend for them to act.
Call it behavior modification or libertarian paternalism, the gist of Sunstein’s type of government meddling in people’s lives is to use a not very subtle program of Skinnerian stimulus-response (after the late Harvard behaviorist psychologist, B. F. Skinner), whereby what government officials want the citizens to do isn’t commanded but made the result of various prompters. Although Sunstein and his collaborators prefer the term “nudging,” it is a misleading idea since if it involved no more than that, one could just sidestep it.
Suppose my neighbor wants his guests to stop wearing shoes in his home, so he leaves bits and pieces of suggestions to them as they enter it that lead them to take off their shoes and proceed into the home only in socks. OK, but they need not visit him in the first place. So when they realize they’re being manipulated into doing stuff they don’t want to do – say, showing people the condition of their socks – they can just not visit at all or take some evasive action. There are numerous such situations in our lives, when those with whom we interact desire for us and try to induce us to act in certain ways and we can either comply or opt out.
With governmental nudging, however, we are ultimately being forced to comply with how the government wants us to behave. There is no escape. If we don’t go along, we could end up fined or even sent to jail. That is why it is called paternalism, since the government acts as would parents act toward their children over whom they have full authority. The “libertarian” part is a ruse – it comes from the fact that government tries to keep the citizenry in the dark about what it is doing, making it appear that one is making one’s own choices when one isn’t really.
Anyway, this idea is almost the only one associated with Cass Sunstein and with what he is supposed to be contributing to the Obama regime. The article does mention that he has urged government to go to court in support of animal rights but what it failed to do is mention Professor Sunstein’s most dangerous and vile idea, namely, that government is the source of our basic rights.
In the American tradition of law and politics, the foundation of these come from human nature. That is what the Declaration of Independence points out, namely, that we have equal rights to life, liberty and the pursuit of happiness – among others – because of our human nature. They are unalienable so long as we remain human!
What Professor Sunstein and his co-author Stephen Holmes claimed, in their 1999 book, The Cost of Rights: Why Liberty Depends on Taxes, is that “individual rights and freedoms depend fundamentally on vigorous state action” and “Statelessness means rightlessness.” This is the pre-revolutionary, pre-Lockean – and pre-Jeffersonian – idea that governments grant us rights; that there are no natural rights but mere privileges we obtain from a government – i.e., a group of politicians and bureaucrats – that can also promptly take them away. As Sunstein & Co. see things, it isn’t just for the protection of our rights that a government is desirable but the very existence of our basic rights is due to government! Instead of the citizens having rights that government is instituted to secure, all governments, like monarchs, czars, dictators and such, give people rights, which they can promptly take away at their discretion. By what right they do this is left entirely unaddressed!
That such a reactionary view should be held by the foremost legal mind in the Obama administration is worth full disclosure and exploration, something The New York Times Magazine essay failed to do. Never mind nudging or animal “rights” – those are small potatoes. What matters far more is that Sunstein and Co. believe the thoroughly anti-libertarian and indeed anti-American notion that government is the source of law and rights, not their administrator and protector, respectively.
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