Is the Patriot Act Unpatriotic?

by Tom Mullen

Republican presidential hopefuls Newt Gingrich and Ron Paul had an interesting exchange at the National Security Debate hosted by CNN on November 22nd. Not surprisingly, Gingrich supported the Patriot Act, going so far as to say that it should be “strengthened.” Paul argued that “the Patriot Act is unpatriotic,” because the legislation undermines American liberties. He thinks it should be abolished. Both men did well making their points and each got enthusiastic applause from their supporters. But who was right?

At first glance, it might have seemed as if Paul had stumbled into a “gotcha” by bringing up Timothy McVeigh. In supporting his assertion that one must never give up liberty for security, Paul argued that Timothy McVeigh, the terrorist who blew up a federal building in Oklahoma City in 1995, was prosecuted, convicted, and executed under the existing laws, without the “tools” that the Patriot Act provides to law enforcers. Gingrich replied:

“Timothy McVeigh succeeded. That’s the whole point. Timothy McVeigh killed a lot of Americans. I don’t want a law that says after we lose a major American city, we’re sure going to come and find you. I want a law that says, you try to take out an American city, we’re going to stop you.”

Paul responded:

“This is like saying we want a policeman in every house, a camera in every house, because we want to prevent child beating and wife beating. You can prevent crimes by becoming a police state. So, if you advocate the police state, yes, you can have safety and security and you might prevent a crime, but the crime then will be against the American people and against our freedoms and we will throw out so much of what our revolution was fought for. So don’t do it so carelessly.”

It is likely that uncommitted observers – those not passionately for Paul or Gingrich – thought that both men made good points and that the right answer is “somewhere in the middle.” To be moderate is always viewed as being more reasonable. But is that really true? I believe that the question debated here between Paul and Gingrich is a fundamental question and compromise is impossible. To use a well-worn but appropriate cliche, Gingrich wants America to cross the Rubicon. Once we do, there is no going back.

The crux of the matter is preemptive government. Not just preemptive war, but the ability of the government to act preemptively in any situation. Paul takes the libertarian position that is based upon the non-aggression principle. Government force may never be employed against anyone until that person has invaded the person or property of another. Gingrich takes the more Hobbesian-conservative position: if the government is not all-powerful, we will all be killed.

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All Powers not Delegated are Reserved

From Chapter IX of Abel Upshur’s “A brief enquiry into the true nature and character of our federal government: being a review of Judge Story’s commentaries on the Constitution of the United States

In the first place, the Constitution of the United States is not a frame of government to which there is but one party. The States are parties, each stipulating and agreeing with each and all the rest. Their agreement is, that a certain portion of that power which each is authorized to exercise within its own limits shall be exercised by their common agent, within the limits of all of them. This is not the separate power of each, but the joint power of all. In proportion, therefore, as you increase the powers of the Federal Government, you necessarily detract from the separate powers of the States. We are not to presume that a sovereign people mean to surrender any of their powers; still less should we presume that they mean to surrender them, to be exerted over themselves by a different sovereignty. In this respect, then, every reasonable implication is against the Federal Government.

In the second place, the Constitution of the United States is not the primary social relation of those who formed it. The State governments were already organized, and were adequate to all the purposes of their municipal concerns. The Federal Government was established only for such purposes as the State government could not answer, to wit: the common purposes of all the States. Whether, therefore, the powers of that government be greater or less, the whole power of the States, (or so much thereof as they design to exercise at all), is represented, either in the Federal Government or in their own. In this respect, therefore, there is no necessity to imply power in the Federal Government.

In the third place, whatever power the States have not delegated to the Federal Government, they have reserved to themselves. Every useful faculty of government is found either in the one or the other. Whatever the Federal Government cannot do for all the States, each State can do for itself, subject only to the restraints of its own constitution. No power, therefore, is dormant and useless, except so far only as the States voluntarily decline to exert it. In this respect, also, there is no necessity to imply power in the Federal Government.

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The Terrorists Have Won

by Jack Hunter

Commenting on the controversial Section 1031 of the National Defense Authorization Act — which many contend gives the federal government new powers to arrest American citizens without charge — Sen. Lindsey Graham made clear this week that “1031, the statement of authority to detain, does apply to American citizens and it designates the world as the battlefield, including the homeland.”

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