A Not So Happy 4th of July

Judge Andrew Napolitano has an essay on Reason.com with this title, and the subtitle: "How can we celebrate the degradation of liberty?"

The article begins with this question: "Do you have more personal liberty today than on the Fourth of July 2012?"

Regrettably, today we have the opposite of what the Framers gave us. Today we have a government that alone decides how much wealth we can retain, how much free expression we can exercise, how much privacy we can enjoy. And since the Fourth of July 2012, freedom has been diminished.

In the past year, all branches of the federal government have combined to diminish personal freedoms, in obvious and in subtle ways. In the case of privacy, we now know that the federal government has the ability to read all of our texts and emails and listen to all of our telephone calls -- mobile and landline -- and can do so without complying with the Constitution's requirements for a search warrant. We now know that President Obama authorized this, federal judges signed off on this, and select members of Congress knew of this, but all were sworn to secrecy, and so none could discuss it. And we only learned of this because a young former spy risked his life, liberty and property to reveal it.

[....]

In the past year, the Supreme Court has ruled that if you are in police custody and fail to assert your right to remain silent, the police at the time of trial can ask the jury to infer that you are guilty. This may seem like a technical ruling about who can say what to whom in a courtroom, but it is in truth a radical break from the past.

Everyone knows that we all have the natural and constitutionally guaranteed right to silence. And anyone in the legal community knows that judges for generations have told jurors that they may construe nothing with respect to guilt or innocence from the exercise of that right. No longer. Today, you remain silent at your peril.

In the past year, the same Supreme Court has ruled that not only can you be punished for silence, but you can literally be forced to open your mouth. The court held that upon arrest -- not conviction, but arrest -- the police can force you to open your mouth so they can swab the inside of it and gather DNA material from you.

Put aside the legal truism that an arrest is evidence of nothing and can and does come about for flimsy reasons; DNA is the gateway to personal data about us all. Its involuntary extraction has been insulated by the Fourth Amendment's requirements of relevance and probable cause of crime. No longer. Today, if you cross the street outside of a crosswalk, get ready to open your mouth for the police.

The litany of the loss of freedom is sad and unconstitutional and irreversible. The government does whatever it can to retain its power, and it continues so long as it can get away with it. It can listen to your phone calls, read your emails, seize your DNA and challenge your silence, all in violation of the Constitution. Bitterly and ironically, the government Jefferson wrought is proving the accuracy of Jefferson's prediction that in the long march of history, government grows and liberty shrinks. Somewhere Jefferson is weeping.

Please read the entire essay.