For the past few weeks, I have been writing in this column about
the government’s use of drones and challenging their
constitutionality on Fox News Channel where I work. I once asked on
air what Thomas Jefferson would have done if–had drones existed at
the time–King George III had sent drones to peer inside the
bedroom windows of Monticello. I suspect that Jefferson and his
household would have trained their muskets on the drones and taken
them down. I offer this historical anachronism as a hypothetical
only, not as one who is urging the use of violence against the
government.

Nevertheless, what Jeffersonians are among us today? When drones
take pictures of us on our private property and in our homes, and
the government uses the photos as it wishes, what will we do about
it? Jefferson understood that when the government assaults our
privacy and dignity, it is the moral equivalent of violence against
us. The folks who hear about this, who either laugh or groan,
cannot find it humorous or boring that their every move will be
monitored and photographed by the government.

Don’t believe me that this is coming? The photos that the drones
will take may be retained and used or even distributed to others in
the government so long as the “recipient is reasonably perceived to
have a specific, lawful governmental function” in requiring them.
And for the first time since the Civil War, the federal government
will deploy military personnel inside the United
States and publicly acknowledge that it is deploying them
“to collect information about U.S. persons.”

It gets worse. If the military personnel see something of
interest from a drone, they may apply to a military judge or
“military commander” for permission to conduct a physical search of
the private property that intrigues them. And, any “incidentally
acquired information” can be retained or turned over to local law
enforcement. What’s next? Prosecutions before military tribunals in
the U.S.?

The quoted phrases above are extracted from a now-public 30-page
memorandum issued by President Obama’s Secretary of the Air Force
on April 23, 2012. The purpose of the memorandum is stated as
“balancing…obtaining intelligence information…and protecting
individual rights guaranteed by the U.S. Constitution…” Note the
primacy of intelligence gathering over freedom protection, and note
the peculiar use of the word “balancing.”

When liberty and safety clash, do we really expect the
government to balance those values? Of course not. The government
cannot be trusted to restrain itself in the face of individual
choices to pursue happiness. That’s why we have a Constitution and
a life-tenured judiciary: to protect the minority from the
liberty-stealing impulses of the majority. And that’s why the Air
Force memo has its priorities reversed — intelligence gathering
first, protecting freedom second — and the mechanism of
reconciling the two — balancing them — constitutionally
incorrect.

Everyone who works for the government swears to uphold the
Constitution. It was written to define and restrain the government.
According to the Declaration of Independence, the government’s
powers come from the consent of the governed. The government in
America was not created by a powerful king reluctantly granting
liberty to his subjects. It was created by free people willingly
granting limited power to their government — and retaining that
which they did not delegate.

The Declaration also defines our liberties as coming from our
Creator, as integral to our humanity and as inseparable from us,
unless we give them up by violating someone else’s liberties. Hence
the Jeffersonian and constitutional beef with the word “balancing”
when it comes to government power versus individual liberty.

The Judeo-Christian and constitutionally mandated relationship
between government power and individual liberty is not balance. It
is bias–a bias in favor of liberty. All presumptions
should favor the natural rights of individuals, not the delegated
and seized powers of the government. Individual liberty, not
government power, is the default position because persons are
immortal and created in God’s image, and governments are temporary
and based on force.

Hence my outrage at the coming use of drones–some as small as
golf balls–to watch us, to listen to us and to record us. Did you
consent to the government having that power? Did you consent to the
American military spying on Americans in America? I don’t know a
single person who has, but I know only a few who are
complaining.

If we remain silent when our popularly elected government
violates the laws it has sworn to uphold and steals the freedoms we
elected it to protect, we will have only ourselves to blame when
Big Brother is everywhere. Somehow, I doubt my father’s generation
fought the Nazis in World War II only to permit a totalitarian
government to flourish here.

Is President Obama prepared to defend this? Is Gov. Romney
prepared to challenge it? Are you prepared for its
consequences?

Andrew P. Napolitano, a former judge of the Superior
Court of New Jersey, is the senior judicial analyst at Fox News
Channel. Judge Napolitano has written six books on the
U.S. Constitution. The most recent is “It Is Dangerous To Be Right
When the Government Is Wrong: The Case for Personal
Freedom.”