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April 9, 2014

Jonathan Tobin: Why Did Kerry Lie About Israeli Blame?

Samuel G. Freedman: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau

Jessica Ivins: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau

Kim Giles: Asking for help is not weakness

Kathy Kristof and Barbara Hoch Marcus: 7 Great Growth Israeli Stocks

Matthew Mientka: How Beans, Peas, And Chickpeas Cleanse Bad Cholesterol and Lowers Risk of Heart Disease

Sabrina Bachai: 5 At-Home Treatments For Headaches

The Kosher Gourmet by Daniel Neman Have yourself a matzo ball: The secrets bubby never told you and recipes she could have never imagined

April 8, 2014

Lori Nawyn: At Your Wit's End and Back: Finding Peace

Susan B. Garland and Rachel L. Sheedy: Strategies Married Couples Can Use to Boost Benefits

David Muhlbaum: Smart Tax Deductions Non-Itemizers Can Claim

Jill Weisenberger, M.S., R.D.N., C.D.E : Before You Lose Your Mental Edge

Dana Dovey: Coffee Drinkers Rejoice! Your Cup Of Joe Can Prevent Death From Liver Disease

Chris Weller: Electric 'Thinking Cap' Puts Your Brain Power Into High Gear

The Kosher Gourmet by Marlene Parrish A gift of hazelnuts keeps giving --- for a variety of nutty recipes: Entree, side, soup, dessert

April 4, 2014

Rabbi David Gutterman: The Word for Nothing Means Everything

Charles Krauthammer: Kerry's folly, Chapter 3

Amy Peterson: A life of love: How to build lasting relationships with your children

John Ericson: Older Women: Save Your Heart, Prevent Stroke Don't Drink Diet

John Ericson: Why 50 million Americans will still have spring allergies after taking meds

Cameron Huddleston: Best and Worst Buys of April 2014

Stacy Rapacon: Great Mutual Funds for Young Investors

Sarah Boesveld: Teacher keeps promise to mail thousands of former students letters written by their past selves

The Kosher Gourmet by Sharon Thompson Anyone can make a salad, you say. But can they make a great salad? (SECRETS, TESTED TECHNIQUES + 4 RECIPES, INCLUDING DRESSINGS)

April 2, 2014

Paul Greenberg: Death and joy in the spring

Dan Barry: Should South Carolina Jews be forced to maintain this chimney built by Germans serving the Nazis?

Mayra Bitsko: Save me! An alien took over my child's personality

Frank Clayton: Get happy: 20 scientifically proven happiness activities

Susan Scutti: It's Genetic! Obesity and the 'Carb Breakdown' Gene

Lecia Bushak: Why Hand Sanitizer May Actually Harm Your Health

Stacy Rapacon: Great Funds You Can Own for $500 or Less

Cameron Huddleston: 7 Ways to Save on Home Decor

The Kosher Gourmet by Steve Petusevsky Exploring ingredients as edible-stuffed containers (TWO RECIPES + TIPS & TECHINQUES)

Jewish World Review Apr. 25, 2013/ 15 Iyar, 5773

Boston and Freedom

By Judge Andrew P. Napolitano



http://www.JewishWorldReview.com | The government's fidelity to the Constitution is never more tested than in a time of crisis. The urge to do something — or to appear to be doing something — is nearly irresistible to those whom we have employed to protect our freedom and to keep us safe. Regrettably, with each passing violent crisis — Waco, Oklahoma City, Columbine, 9/11, Newtown and now the Boston Marathon — our personal freedoms continue to slip away, and the government itself remains the chief engine of that slippage.

The American people made a pact with the devil in the weeks and months following 9/11 when they bought the Bush-era argument that by surrendering liberty they could buy safety. But that type of pact has never enhanced either liberty or safety, and its fruits are always bitter.

The Constitution is the supreme law of the land. It was written to create and to restrain the federal government. Every person who works for any government in the U.S. has taken an oath of fidelity to the Constitution, not unlike the presidential oath, which induces a promise to preserve, protect and defend the Constitution.

The chief and final interpreter of the Constitution is the Supreme Court. One may not always agree with its interpretations, but they are, as legal scholars sometimes say, "infallible because they are final." Those interpretations are particularly final when we have relied on them for generations.

One of those rulings underscores the primacy of constitutional protections, no matter the environment in which they are claimed. Indeed, after the Civil War had ended and President Lincoln was dead, the Supreme Court in a case called Ex parte Milligan (1866) rebuked and reversed Lincoln's unilateral assaults on personal freedoms in the North and in so doing reminded us that the Constitution was written for good times and for bad, and its protections cover all persons at all times and under all circumstances who have any contact, voluntary or not, with the government.

The court has also ruled consistently throughout the 20th century that just as the First Amendment protects the freedom of speech, it also protects the freedom not to engage in speech. One hundred years after Milligan, the Supreme Court first recognized and articulated the constitutional basis for the right to remain silent in the Miranda case. That right is a natural right that is inherent in all human beings, and it is arguably articulated in the First and Fifth Amendments.

But since the court understood that most folks don't know that they have the right to remain silent in the face of government demands for speech, it mandated that all governments — local, state and federal — comply with their affirmative obligation to tell everyone in their custody whom their agents wish to interrogate about the existence of this right, as well as the obligation of the government to honor it faithfully once it has been invoked. That has consistently been the law of the land for the past 50 years.

The pact with the devil occurred in the fall of 2001, when then President George W. Bush and Congress decided that they would use the machinery of the federal government to secure safety, rather than liberty. So, the Bush-inspired Patriot Act permits federal agents to write their own search warrants, and the Bush-inspired new FISA statutes permit search warrants of some Americans' phone calls without a showing of probable cause as the Constitution requires, and the Bush-era intimidation of telephone service providers permitted our overseas spies to snoop on our domestic phone calls. None of this has enhanced safety, and all of it has diminished liberty.

In the Obama administration, the devil has demanded more. In the past five years, we have seen federal spies capturing the keystrokes on our computers, local police using federal dollars to install cameras and microphones on nearly every street corner, and, the latest lamentable phenomenon, the use of false emergencies to undermine freedom.

This began at the Mexican border, where immigration agents have been told to interrogate first and Mirandize later. It moved to Washington, where we have an attorney general who has told federal agents that the extremely limited public safety exception to the Miranda rule can exist for up to 48 hours. And it proceeded to the spectacle of well-meaning FBI agents being told to reject their training and the common understanding of well-regarded constitutional law and interrogate a half-drugged suspect with a hole in his throat whom they were about to charge with mass murder, in utter defiance of Miranda.

The public safety exception to Miranda goes to the safety of the officers and others present at the moment of arrest. It permits the police to express an excited utterance ("Where's the gun?") in an effort to protect themselves before securing the defendant and before advising him of his rights. According to the Supreme Court, it can last for just a few seconds.

The Obama administration's radical reinterpretation of the natural and constitutional right to remain silent is unprecedented, terrifying and disingenuous. Think about this: The governor of Massachusetts, the superintendent of the Massachusetts State Police, the mayor of Boston, the Boston police commissioner, and the head of the Boston FBI office all proclaimed on Saturday morning that the danger had passed and Boston and its suburbs could return to normal. Yet the attorney general in Washington told his FBI agents in Boston to disregard those officials and instead pretend that the public safety was still jeopardized and then expand a 10-second window to 72 hours.

The Constitution was written to preserve freedom by restraining the government. The courts from time to time have required the government to respect the natural law, as well. But when the attorney general arbitrarily changes the law to suit the demands of the people when they are weeping, it fundamentally undermines our freedoms. And a pact with the devil is the most dangerous of all, because his appetite can never be sated.

Every weekday JewishWorldReview.com publishes what many in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here.

Your comments are appreciated. Please send them by clicking here.

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the Senior Judicial Analyst at Fox News Channel and anchor of "FreedomWatch" on Fox Business Network.



Previously:


04/18/12 Taxation Is Theft
04/11/12 Drones, Guns and the President
04/04/12 When the Government Goes Bankrupt
03/28/12 Hope for the Dead
03/21/12 No More Asking for Permission To Speak
03/14/12 What if Nanny Is a Thug?
02/28/12 Obama's False Alarms
02/14/12 Obama's Secret Court for Killing
02/07/12 Obama Gives Himself Permission To Kill
01/31/12 Both sides in immigration debate overlook main issue
01/24/12 Guns and the President
01/17/12 Guns and the Government
01/10/12 Guns and Freedom
12/13/12 Government Spying Out of Control
12/06/12 Republicans for Big Government
11/29/12 Republicans and Taxes
11/15/12 Silencing General Petraeus
11/08/12 Four more years to crush personal freedoms
10/25/12 Silence on Libya
10/18/12 Who Is Responsible for the Mess in Libya?
10/11/12 Let Gary Johnson Debate
10/04/12 Two Failures
09/27/12 The Arab Spring Becomes a Western Winter
08/23/12 Abortion and Rape
08/16/12 November's Choices
08/09/12 Gazillions
07/19/12 The Rule of Law
07/12/12 We Are at a Turning Point
07/03/12 A Vast New Federal Power
06/28/12 Restraining Arizona, Unleashing the President
06/21/12 Can the President Rewrite Federal Law?
06/15/12 Squealing Versus Killing
06/07/12 Where Is The Outrage?
05/31/12 The Secret Kill List
05/24/12 What If We Have Only Memories of Freedom?
05/17/12 Is There a Drone in Your Backyard?
05/10/12 What Constitutes a Fair Trial?
05/03/12 The President's Private War
04/26/12 Rick Perry Was Correct
04/19/12 A Government of Waste
04/12/12 What If the Government Rejects the Constitution?
03/29/12 Can the Government Force You To Eat Broccoli?
03/22/12 Is the CIA in Your Kitchen?
03/15/12 Can the Secret Service Tell You To Shut Up?
03/08/12 Can the President Kill You?
02/23/12 What If Democracy Is Bunk?
02/16/12 Time To Tame the Federal Beast
02/09/12 Do Catholics Have Too Many Babies?
02/02/12 What Is a Just War?
01/25/12 A Few Words About Abortion
01/20/12 How Much Economic Freedom Do We Have in the United States?
01/12/12 What If Elections Don't Matter?
01/05/12 Big Government Cannot Pay Its Bills, Again
12/29/11 The Case for Austerity
12/22/11 New Ideas or Fidelity to Old Principles?
12/15/11 The Government as Lawbreaker, Again
12/08/11 What if our rights didn't come from the Almighty or from our humanity, but from the government?
12/01/11 Can Congress Steal Your Constitutional Freedoms?
11/24/11 What if the Constitution No Longer Applied?
11/17/11 Congress and Secrecy
11/10/11 Does the Government Work for Us, or Do We Work for the Government?
11/03/11 Look at What the Government Has Done with Your Money
10/27/11 What Have the Wars Done for You?
10/20/11 Is Freedom in America a Myth or a Reality?


© 2012, ANDREW P. NAPOLITANO

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