Andrew P. Napolitano examines the moral and historical errors in the argument that less freedom produces more safety.
Trump on May 15 visiting troops at Al Udeid Air Base in Qatar, which Iran attacked on June 23 in retaliation for U.S. attacks two days earlier. (White House /Daniel Torok)
We have seen this before.
A foreign entity attacks American persons or property and the government warns that its sleeper cells have infiltrated the United States and it is somehow necessary to expand the powers of the government and shrink protections for civil liberties — and this shrinkage will somehow keep us all safe.
The premise of this deeply flawed argument is that less liberty produces more safety. That premise is historically and morally erroneous. Even if we had cops watching us on every street corner or F.B.I. agents virtually in every home, who will keep us safe from them? And who would want to live, who could be private and free, in such an environment?
A bulletin from the National Terrorism Advisory System warns US citizens of a “heightened threat environment in the United States” following Trump dropping bombs on Iran. pic.twitter.com/uPK5GsEFbJ
— Bill Madden (@maddenifico) June 22, 2025
Here is the backstory.
When James Madison referred to the creation of the American republic as an inversion, he must have been met with quizzical looks and curious laughter. He meant that throughout history, popular governments came about by monarchs and despots — the sovereign — begrudgingly giving up power. This was, to Madison, power giving liberty.
In America, however, Madison argued — following his neighbor and good friend Thomas Jefferson, who maintained that individual persons are sovereign — the government came about by an inversion of the old way. In America, liberty gave power.
Thus, at the end of the American war for independence, which began 250 years ago, there was no central government here. The king’s agents and soldiers had been chased back to England, and many of his judicial and administrative officials retreated into private life or suddenly became patriots.
“Even if we had cops watching us on every street corner or F.B.I. agents virtually in every home, who will keep us safe from them?”
The 13 states were the only meaningful governments, and all persons — actually, all land-owning adult white males — were recognized as sovereign. I say “recognized” because Jefferson’s theory of the primacy of the individual over the state was his understanding of Natural Law Theory, and the natural law is color- and gender- and wealth- and status-blind.
It teaches that all human beings possess equal natural rights from birth, recognized at the age of reason, and exercisable upon earliest adulthood.
Hence, because of perverse racial attitudes about Africans and Native Americans and antediluvian attitudes about women and wealth, Jefferson’s iconic language in the Declaration of Independence that “all Men are created equal, that they are endowed by their Creator with certain unalienable Rights” makes no sense unless it is understood to mean that all persons are created equal.
This uniformity of equality, which colonial society here limited to adult, white, landowning males, nevertheless was voluntarily exercised so as to create a limited government. When the Constitution was ratified by voters in the states — in numerous conventions, town meetings and political gatherings — it literally consisted of liberty giving power. This was Madison’s inversion.
Limited Powers
Monticello, Thomas Jefferson’s plantation home in Charlottesville, Virginia. (Joe Lauria)
But the power that individuals morally gave — legally, the power that the states delegated to the new central government — was not without limits. And those limits were reduced to writing in the Constitution and the Bill of Rights. Basically, the Constitution established the new federal government, and the Bill of Rights restrained it.
In the late 1860s, new amendments were added to the original Constitution that essentially applied the Bill of Rights to states and local governments.
The premise of the Bill of Rights — purely Jeffersonian and Madisonian — is that because our rights come from the Creator, they are inalienable; and hence each of us is sovereign. The Bill of Rights does not create rights; rather it restrains the government from interfering with them.
The key amendments for this discussion are the First (restraining the government from interfering with religion, assembly, speech and writings) the Fourth (guaranteeing the right to be left alone, and prohibiting searches and seizures unless by warrant issued by judges based on probable cause of crime), and the Fifth and 14th, which together guarantee fair trials to all persons whenever the government seeks their lives, liberties or property.
Now back to the coming police state.
9/11 & the Patriot Act
Shortly after the attacks of 9/11, the George W. Bush administration offered legislation that it had mysteriously drafted before 9/11. When Congress enacted the so-called Patriot Act of 2001, a 115-page piece of legislation that no one in the Congress read, it ignored the liberties retained by the people when they gave power to the government and which were purportedly protected by the Bill of Rights.
“The Bill of Rights does not create rights; rather it restrains the government from interfering with them.”
The Patriot Act — truly the most liberty-crushing and unpatriotic congressional legislation since the Alien and Sedition Acts of 1798 — bypassed the Fourth Amendment by permitting one federal agent to issue a warrant to another agent, mocked the First Amendment by prohibiting the recipient of an agent-written warrant from telling anyone about it, and trashed the Fifth and 14th Amendments by compelling your doctor, lawyer, banker, jeweler, car dealer, telecom and internet carrier, and postal worker to surrender your documents to the government without telling you.
[Related: Arresting a Judge and Holes in the US Constitution and The Government Compels Silence – Again]
Has any of this kept us safe? No.
In order to give the illusion of safety, the feds created fake crimes and then had the F.B.I. ostentatiously “solve” them. Dozens of sad folks were lured into the F.B.I.’s web by undercover agents pretending to be in sleeper cells and encouraging these folks to join a conspiracy to commit crimes that, of course, never occurred.
Does solving fake crimes in order to justify suppressions of civil liberties make any rational person safer than before the suppression? Does the suspicionless and thus warrantless seizure of private personal records and all communications from all persons enable the government to do anything about safety?
Does information overload lead to safety? Does the rampant violation of oaths to uphold the Constitution enhance anyone’s safety? The answers are obvious.
What is a police state? It is the reversion Madison most feared. The American model is liberty trumps power. In a police state, power trumps liberty. Is that what we voted for?
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, was the senior judicial analyst at Fox News Channel and hosts the podcast Judging Freedom. Judge Napolitano has written seven books on the U.S. Constitution. The most recent is Suicide Pact: The Radical Expansion of Presidential Powers and the Lethal Threat to American Liberty. To learn more about Judge Andrew Napolitano, visit here.
Published by permission of the author.
COPYRIGHT 2025 ANDREW P. NAPOLITANO
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The views expressed are solely those of the author and may or may not reflect those of Consortium News.
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Everything I’ve read by Mr. Napolitano recently had made me wiser, if not a bit more paranoid of the government, no matter who controls Congress.
“Shortly after the attacks of 9/11, the George W. Bush administration offered legislation that it had mysteriously drafted before 9/11. ”
Actually, the Patriot Act was drafted in 1995 by Joe Biden or so he proudly claimed. Of course he also claimed he is Neil Kinnock.
I think the Bush administration’s biggest achievement was the normalization of torture. (Outdone again by Biden normalizing genocide).
No, the biggest achievement the GW Bush administration was the normalization of “pre-emptive war” and “pre-emptive” law enforcement, concepts that undermined centuries of legislation and political philosophy in favor of individual and sovereign rights. The torture applied by his goons simply stemmed from the institutionalization of these concepts.
Excellent exposition concerning the theory under which the United States purportedly exists, albeit it turns out to be illusory: Sovereignty vests in the individual but the individual surrendered a portion (but only a portion) of that sovereignty to the individual state of which he was a citizen. The states surrendered a portion of the derivative sovereignty they had acquired from the individual but only a portion of that derivative sovereignty to the federal government. The individuals retained all of the sovereignty they had not surrendered to the states and neither the states nor the federal government could appropriate it, so sayeth explicitly the ninth and tenth amendments to the constitution (you know, the ignored amendments) as well as the constitution itself. The states retained all of the derived sovereignty they had received from the individual (but no more), except such portion of that derivative sovereignty as they gifted to the federal government. That gift could not me expanded without a further gift from the states, which in no event could infringe on the sovereignty retained by the individual citizenry.
Once more, so sayeth explicitly the ninth and tenth amendments to the constitution (you know, the ignored amendments) as well as the constitution itself. Unfortunately , as the antifederalists feared would occur, John Marshall and his successors on the Supreme Court and good old purportedly honest Abraham Lincoln had different ideas and subtly rejected the foregoing in favor of the Hobbsian perspective (enforced through Civil War) that somehow, the individuals and the states had relinquished all sovereignty to the federal government which, under whatever terms it chose, could return aspects of the benefits of that former sovereignty, albeit not the sovereignty itself, however it chose and under whatever conditions it chose, to whatever portion of the citizenry it selected, as “privileges”. Thus we live in a federal dictatorship, sometimes benign, but keep deluding ourselves into believing that we are free and enjoy the bounties of that liberty which we unfortunately seem to have mislaid.