What If November Changes Nothing?

by Judge Andrew Napolitano

What if the principal parties’ candidates for president really agree more than they disagree?

What if they both support the authority of the federal government to spy on Americans without search warrants? What if they both support confining foreigners, uncharged and untried, in Guantanamo Bay? What if they both believe the president can arrest without charge and confine without trial any American he hates or fears?

What if they both believe in secret courts – kept away from the public and the press – that can take away the rights of Americans? What if they both think the president can disregard the Constitution when it comes to the rights of those the government has confined to speedy trials, to confront witnesses and evidence against them, and to counsel of their choosing? What if they both believe the government can use evidence obtained under torture at trials in American courts? What if they both think the president can incarcerate those he once prosecuted, even after acquittal?

What if both major presidential candidates believe they can fight any war, assassinate any foe or assault any country using the military or the CIA, and they need not ask Congress for a declaration of war as the Constitution requires, nor account to Congress or the public as the law requires? What if they both want American troops to remain in Afghanistan, even though no foreign country in history has successfully done so, and even though the culture in Afghanistan is as lawless, as vicious to women and children, and as harmless to America today as it was when President Bush invaded it in 2001?

What if they both think this costly and fruitless war – the longest in American history – is somehow good for American freedom and security, even though most Americans do not? What if they both refuse to understand that the longer we are killing people in foreign lands who can cause us no real harm the more likely will people from those lands come here and bring us real harm?

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Communists and Founding Fathers Opposite on Democracy

Given our constant drift from a Republic to a Democracy, it might be well to review what historical philosophies most favored the latter form of government. The Founding Fathers and the Communists were total opposites on the word Democracy, one distained; the other loved. Guess which one hated and which one loved?

First, those who favored Democracy: the most blunt was Karl Marx, the father of communism. He wrote, “Democracy is the road to socialism.” Vladimir Lenin, the one activating the communist philosophy into a government in Russia, agreed. In his 1905 work, Two Tactics of Social Democracy, he saw Democracy as a strategy leading to his desired socialist revolution. “Social-Democracy, however, wants, on the contrary, to develop the class struggle of the proletariat to the point where the latter will take the leading part in the popular Russian revolution, i.e., will lead this revolution to the democratic-dictatorship of the proletariat and the peasantry.”

In a letter to Inessa Armand in 1916, he added, “We Social-Democrats always stand for democracy, not ‘in the name of capitalism,’ but in the name of clearing the path for our movement, which clearing is impossible without the development of capitalism.” Class conflict and the philosophy “share the wealth” were, and remain, central to the empowerment of communism.

Next, those who abhorred Democracy: as far as we can tell the list included all the Founding Fathers. Benjamin Franklin wrote in 1759, “Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote.” Years later, when Franklin exited the Constitutional Convention, a woman inquired of him, “What form of government have you left us?” the brilliant Franklin answered, “A Republic, if you can keep it.” The phrase expressed some doubt as to whether man could understand the value of a Republic enough to protect it from a Democracy.

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Obama Admin. Argues for Warrantless Cellphone Tracking

In a document filed September 4 in the D.C. District Court, the Obama administration argues that there is no “reasonable expectation of privacy” in a person’s cellphone GPS data. The president’s lawyers argue that they do not need a warrant to request cellphone company records regarding a customer’s movements and location as tracked by their signal towers.

In its argument against a motion filed to suppress the government’s use of a defendant’s cellphone location data, the Obama administration claims that the customer tracking records kept by cellphone service providers are no different from other business-related “third-party records” such as store receipts and bank account statements, and customers have no legal basis for any additional expectation of privacy.

The feds are making their case for warrantless tracking of citizens in a re-trial of an accused drug dealer whose conviction was thrown out by the Supreme Court in its decision in the case of United States v. Jones.

In the Jones case the high court held that warrantless installation of tracking devices on cars was unconstitutional. In light of that decision, lawyers for the federal government are shifting their focus to Jones’s cellphone tracking data.

Wired describes the decision and the White House’s reaction:

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