Staff & Sling
Ministry

Joseph E. Hébert, Ph.D.

98119 N 3745 Rd
Okemah, OK  74859
918 623 3078

Stare Decisis Notwithstanding

an
amicus libertas brief

Liberty

At one point I thought to write this as an amicus curiae (friend of the court) brief, except an amicus curiae brief addresses the author's concerns or interests involved in a single case. I, on the other hand, am writing out of an abundance of concern for far more than any single case. I am writing out of concern for, and to defend my interests in, a host of court decisions, indeed all court decisions. At the risk of seeming hyperbolic, I am writing out of concern for liberty itself, for the continuation of our very nation as envisioned and built by the founders. So instead of amicus curiae, I call this an amicus libertas (friend of liberty) brief.

Ah, yes. Liberty! The very word is so patriotic, so noble. Except it isn't, not anymore anyway. Whatever it may have once been, today it is nothing more than an empty and meaningless rhetorical device, used and abused of politicians and propagandists to assuage the ignorant masses. If it seems, to some at least, resonant with the patriotism of our forefathers, that is only because, like anything that still resonates long after its impact, it has been made an empty shell, a hollow void filled only with echoes where once was substance.

So let me begin by making clear just what it is that I am writing to defend. And let me do that by asking, what is liberty? What is freedom? What is the substance of my interest?

Is freedom simply to be possessed, or controlled, by no one and nothing? Some would say that freedom is nothing more than what you possess when you possess nothing else. Is this liberty, freedom, to neither possess nor be possessed? Let me state plainly that I will neither befriend nor defend such liberty.

If this is liberty then I for one am not free nor would I choose to be were the choice mine to make. I am first a bondservant of God, bought and paid for with His own blood. Second I am bound by covenant and love to my wife and by providence and love to the rest of my family. I chose my wife, God chose my parents and sons, and I love them all unconditionally. Finally, I am bound by honor and citizenship to this country, the nation built by my forefathers. I am, unapologetically and without hyphenation, American. Succinctly, I possess and am possessed of God, Family and Country, in that order, and I would have it no other way.

Moreover, I am neither friend nor defender of the kind of liberty championed by Franklin Delano Roosevelt and articulated in his Four Freedoms speech. Such liberties are based on the deception that man can achieve divine ideals without need of the Divine. Call it Marxism, communism, liberalism, progressivism, secular humanism or by whatever label you like, but such liberties are deceit, serving only to subvert the greatness of America by undermining those qualities of men that made America great.

Such liberties trade dignity for pride, gratitude for a sense of entitlement, confidence for arrogance, optimism for hubris and individual responsibility for collective dependence. But worst of all such liberties trade humble faith in God for a vanity that can only end in both moral and fiscal bankruptcy. Such liberties are destructive, both to man and society, and there is nothing American about them.

True liberty, American liberty, is something else. American liberty is power. It is the power to direct, indeed to govern, your own life and property in accordance with your own wishes and interests. Moreover, American liberty is not granted but is protected by the founders and the founding documents of this nation. This is made explicit in the second paragraph of the Declaration of Independence and codified into law by the Ninth and Tenth Amendments of the Constitution.

American liberty is freedom, not from the consequences of your own choices, but from the tyranny of others. American liberty is freedom from the tyranny of those, be they monarchs or brigands, be they one or many, be they malicious or benevolent, who would insinuate their will into the affairs of others, who would subvert the interests of others for the sake of either themselves or the so-called greater good. To sacrifice one's self for others is noble, but to sacrifice others for anything is base cowardice and it is wholly un-American.

This is the liberty I defend, true American liberty, that liberty penned in the blood of my forefathers and manifest in the Constitution of these United States. I will defend it because it is my birthright. I'll not sit quietly aside while it is lost to the designs of subversive politicians, the whims of activist judges or the fear of ignorant masses. I will defend it because it is mine as surely as the land and home that are deeded to me. I will defend it, not because I am the progeny that the founders intended it for, but because my sons are after me.

So it is toward that end, the defense of American liberty, that I am writing this manuscript. Therein will I illuminate errors of logic, language and principles that, having been the basis for or derived from more errant court decisions than I am inclined to count, threaten American liberty. Hence the title, Stare Decisis Notwithstanding.

Interpretation and Reason: The Role of the Courts

Perhaps the most egregious error of logic, one that has led to so many bad judicial decisions, is the unchallenged and errant assertion that the Supreme Court is somehow charged with interpreting the Constitution. Instead of protecting liberty, such an assertion will, if accepted as true and acted upon accordingly, guarantee liberty's inevitable demise.

It's not a trivial point, nor should it be ignored, that the Constitution never empowers the Court to interpret its meaning. Article III of the Constitution gives the courts in general, and a Supreme Court in particular, jurisdiction over the law and the Constitution. But to confuse jurisdiction, i.e. application and stewardship, with interpretation is the foundation of sedition.

If the Constitution is at all subject to interpretation, beyond the well-defined and objective meaning of its text, then its entire meaning is, by definition, subjective; anyone can interpret it to mean anything that seems right in their own eyes. In such a circumstance, when controversies arise who will say who is right? The answer of course, as obvious as it is unpleasant, is whomever wields the greatest force, be they a band of renegades or a federal bureaucracy. Order will be kept, if at all, not by law and reason but by the most powerful. Under the rule of a subjective Constitution, reason, like history, is defined by the victor alone.

So a subjective Constitution is sufficient alone to ensure totalitarian rule. It is not merely wholly unsuited to the preservation of liberty, it is antithetical to the rule of law and reason. After all, reason can no more derive from the subjective than can whim from the objective.

And that brings immediately to mind the observation of another error of logic that has undermined our Constitution, and thus our liberty. Indeed, this error is so insidious as to lend credence to the idea that it may be based in intentional deceit. It is the way in which the word "reasonable" has been so abused that today it is taken as its own antithesis, as it's own diametric opposite.

I have personally sat in open court and listened to judges instruct jurors on the standard of "reasonable" as it applies in law. The judge invariably briefs the jury on how the word "reasonable" is hard to define, but that it means "as would seem reasonable to the average man," to some hypothetical "every-man." Apparently they teach of neither the errors nor dangers of circular definitions in law schools.

But "reasonable" is not difficult to define, and it is the foundation of deceit to claim otherwise. "Reasonable" means "able to be reasoned," or "logically deducible from a fact, or sequence of facts." In other words, a conclusion is reasonable if and only if it it the logical consequence of some predicate fact or facts.

On the other hand, the nebulous "every-man" standard of "reasonable" is a first order deception. Every man thinks of himself as being representative of the hypothetically typical "every-man," and therefore believes that whatever he thinks of as being "reasonable" is, by legal definition, the standard of reason. But "reasonable" has come to colloquially mean "obvious" or "plainly true." Therefore, the net result is that the word "reasonable" is effectively changed to mean "intuitive," which is in fact the diametric opposite of reasonable.

How is it then possible that the Constitution might protect even the minority, much less the individual (the ultimate minority), from the whims of the majority if their whims are the standard of what is permissible?

It may be ironic, but it was nonetheless always quite predictable that what has been errantly accepted as "reasonable" has led to some pretty outrageous, even egregious, conclusions, and not only by the standards of rigorous reasoning. Even by the colloquial standard of "intuitive" as "reasonable," there are points in case wherein today's conclusions are so laughably errant as to call into question the respectability of those who hand them down. And one such case in point is the so-called doctrine of the separation of church and state.

The Separation of Church and State

One of the best examples of the Court and precedent being as objectively and completely wrong as possible, in both cause and consequence, is concerning the issue that is popularly called the separation of church and state. Even relying on the colloquial "intuitive" standard of "reasonable," case law in this matter is indefensible. One needn't be a Constitutional scholar, or even a lawyer, to understand that any interpretation of the First Amendment that defends and protects filth mongers like Larry Flynt and Hugh Hefner, all the while prohibiting high school seniors from praying at their own graduation, is anathema to the founding principles of our nation. It is ridiculous beyond the pale, yet it is the reality of modern case law.

So how did this happen that case law and the Court could possibly stand, like a naked emperor, so brazenly errant before us all? It happened because two words were misinterpreted. By misinterpreting two words in the Establishment Clause of the First Amendment, the whole meaning is changed from something that would guarantee religious liberty for everyone to a deception that is both logically nonsensical, and the very foundation of religious intolerance.

Someone misinterpreted the word "establishment" as a verb, and the word "religion" as a noun. That error leads directly to the fiction that the founders intended to produce a religiously neutral nation, as though such a thing is even possible.

Before proceeding let's be clear on this point, as it is apparently a point of confusion for many. The most casual deliberation will reveal that it is not possible to have a nation without a national religion. All civilization is the manifestation of the commonly held religious beliefs of the population. And this makes sense. Without a unifying belief system there can be no unity.

It has been foolishly said that one cannot legislate morality, or one cannot impose one’s morality on others. But in point of fact the rule of law is, by definition, the imposition of morality, whether by legislation or fiat. And since morality is, by definition, the product of one's religious beliefs, it is impossible to have any society governed by laws that are religiously neutral.

And no, a secular government is not religiously neutral. Like all governments, a secular government will reflect whatever morality is dictated by the religious beliefs of the people it governs.

It is a trap to many, the mistaken belief that “secular” means “religiously neutral.” It does not. “Secular” simply means, “pertaining to worldly or empirical matters.” It does not mean “free from religion or religious influence.” If it did, “secular humanism” would be an oxymoron.

So make no mistake. Secular humanism is very much a religion. It, like all forms of atheism, is a system of religious beliefs based on the fundamental tenet that there is no Creator God, no Sovereign of creation to whom man must account. There are many examples of atheistic religions, including Paganism and Buddhism, but they are religions nonetheless, as is secular humanism.

Since, then, the founders explicitly cite God as the source of the liberties they undertook to preserve, it is not possible to argue that they intended our nation to be humanist, or that they even naively intended it should be free of religion or religious influence. Though they clearly intended to make our government secular, they absolutely never intended it should be secular humanist.

And yes, I do believe it is important to consider the founders' intent, but I believe it's more important to consider what they actually wrote and ratified. So let's examine the actual text of the Constitution.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

If in the Establishment Clause the word "establishment" is a verb, and the word "religion" is a noun, then Congress is forbidden to establish a national religion. Consequently the phrase "prohibiting the free exercise thereof," applying to the noun of the antecedent clause, would become a prohibition against Congress (or, by extension via the XIV Amendment, any state) forbidding any religious practice.

But is it reasonable (by any standard) that this was the intent of the founders? Is it reasonable to believe that the founders intended to protect all religions and all religious practices? In keeping with the more rigorous standard of "reasonable," let's test this hypothesis by applying the technique that mathematicians call "proceeding naively." We will assume the hypothesis is true. If then the hypothesis produces a consequential dilemma, it is shown to be unreasonable.

The Establishment Clause prohibits government from outlawing any religious practice. Human sacrifice is irrefutably a religious practice, having a pedigree established by a long history, predating even Judaism and Christianity. Therefore the Establishment Clause protects the practice of human sacrifice.

Obviously the hypothesis fails quickly, but there is more to note nonetheless. There is no human activity that cannot be couched in religious terms. From temple prostitutes to the use of hallucinogenic substances, even to include military conquest, men have made religious practice, even duty, of everything they have desired in their hearts. So it is no stretch then, that if this interpretation of the Establishment Clause of the First Amendment is accepted, we would be hard pressed to imagine any law that would not be thereby unconstitutional.

Now notice how those who would defend the contemporary interpretation of the Establishment Clause are immediately forced to invoke the colloquial standard of "intuitive" as "reasonable." They are forced to argue that we must "be reasonable" in what we recognize as a "religious practice," and of course by extension of precedent all liberties enumerated in the Constitution.

That's right. Their argument in this, as in every other case, is that we must make subjective, and thereby limit, those rights guaranteed by the Constitution. So how precisely does this even hypothetically protect true American liberty?

In truth it is plainly and demonstrably not reasonable to believe that the founders intended to protect all religious practices, or even (by extension) all religions. But if that conclusion is not yet evident, as it might not be to the intransigent mind, we need only examine that text which the founders actually penned and ratified.

Toward that end note that the word "establishment" is prefaced with an indefinite article, not the definite article, and the word "religion" is prefaced with no article at all. In other words, the Establishment Clause states, "Congress shall make no law respecting an establishment of religion," not "the establishment of a religion." Thus "establishment" in this clause is a noun, not a verb, and "religion" is an adjective, not a noun.

Consequently, and contrary to both popular consensus and contemporary case law, the Establishment Clause emphatically does not preclude Congress from establishing a national religion. To the contrary, all evidence suggests that to the founders' thinking the United States has a national religion, specifically Judeo-Christianity. The founders apparently understood that a religiously neutral government is not possible, so they wrote the Establishment Clause, not to preclude a national religion, but to preclude Congress from vesting jurisdiction of the national religion into any particular establishment of that religion, such as a particular denomination or sect.

As for the phrase "prohibiting the free exercise thereof," it applies to the noun of the previous clause, not the adjective. In other words it applies, not to religion in general, but to any of the aforementioned establishments of religion. It is a guarantee that Congress can not make any one favored denomination or sect, any one favored establishment of religion, the de facto establishment by criminalizing, regulating or otherwise interfering in the affairs of the others.

There is, then, nothing unconstitutional about Congress making a law affirming that the United States of America is a Judeo-Christian nation, and that it's laws, customs and traditions will reflect the same, so long as it does not impart favored status on any of the particular establishments of Judeo-Christianity.

Clearly the founders did not want the nation or its citizenry made subject to any establishment of religion, but it is equally clear that the founders never intended to build, or tried to guarantee anyone, a nation free of religion, or even one in which all religions were equally respected.

That's right. It is a mistake to believe that the Establishment Clause was ever a blanket protection for all religions, or for all things religious. At best it guarantees (and then only implicitly) that religious affiliation can never be made compulsory. It in no way guarantees that all religions, or their practices, are protected. Otherwise Muslim honor killings and all human sacrifices (not just the prenatal variety so important to secular humanism) would be Constitutionally protected practices.

In other words, even if the Establishment Clause effectively ensures that non-Judeo-Christians can not be compelled to subscribe to Judeo-Christianity, it does not guarantee that if they choose to live in the United States they will be exempt from living in a society based on, and expressive of, the tenets of Judeo-Christianity. Neither does it guarantee that they will be exempt from laws based on the morality of those very tenets. Moreover, it does not guarantee anyone that society or the nation will afford equal, or even any, respect or deference to all religions or religious practices. To believe it does is asinine.

Even if an atheist is not compelled to proclaim personal faith in God, he can be compelled to swear an oath before God, and then act accordingly, when called to give testimony in court. Moreover, the First Amendment in no way guarantees the atheist that he will be exempt from living in accordance with laws that derive from the Ten Commandments, or even that those Ten Commandments will not be venerated and displayed on the courthouse walls and lawn.

It is ironic that the Court, through errant decisions over the past several decades, while claiming to protect religious liberty in the United States by prohibiting any national religion have in fact been establishing secular humanism as the national religion. And not only have their actions been the diametric opposite of their claims, the consequences of those actions have been the diametric opposite of their claimed intentions. Far from preserving religious liberty in the United States, they have created a secular faction, of which they are currently a part, that is discriminately intent on purging Judeo-Christianity, indeed all things thereby moral and decent, from the public square altogether, and from our culture in general.

Of course, and as before, though ironic this should not be unexpected. As I said, it truly is not possible to have a nation without a national religion. But there is nothing to say that religion must revere, or even recognize, God.

On the other hand, there is no prerequisite that a society be intolerant of other religions. That, though, will depend on the particular religion, not the nation.

So it may seem that the founders intended to create a religiously tolerant nation, but understand that it is no coincidence that they did so from within an overarching framework of Judeo-Christianity. As errant as it is to believe that the Establishment Clause was ever intended as a blanket protection for all religions, for all things religious, it is equally errant to believe that the religious tolerance that is so characteristic of the American ideal is Constitutional in origin. America's religious tolerance stems not from its governmental, but from its religious foundations.

That's right. We are a religiously tolerant nation because we are, and were from our founding, a Judeo-Christian nation. It is a fundamental tenet of Judeo-Christianity that men can only come to God by way of free will. But not all religions hold such a belief.

So what will happen to religious liberty if the the liberal left succeeds in purging Judeo-Christianity from our culture? And make no mistake, socialists are actively trying to make secular humanism the national religion of the United States. What then, do you think will come of the Buddhist or the Hindu if they succeed? You need only look at the tolerance they've exercised toward Judeo-Christianity to know.

But the concern needn't be focused on the possibility of secular humanism as the national religion. The varied forms of atheism hold no monopoly on religious intolerance. What will happen to the atheist if Islam gains political control? There has never been a single instance in the history of the Earth that Muslims have exercised both political control and religious tolerance, and they too, like the socialist left, are actively seeking political control in these United States.

In short, if you value religious liberty, any religious liberty, you need to pray, or at least hope if that's the best you can do, that the United States remains a Judeo-Christian nation. Only the religiously intolerant would have it any other way.

The Right to Keep and Bear Arms

While it may be hard to imagine, there is at least one other part of the Constitution that is even more abused than the Establishment Clause, specifically the Second Amendment.

A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Perhaps the most laughable misinterpretation of the Second Amendment, possibly of the whole Constitution, is the assertion that the founders only intended the right to keep and bear arms as a collective, not an individual, right. In point of fact, just the opposite is not only true but explicit.

The errant rationale stems from the founders' inclusion of the predicate clause in explanation of their motivation for guaranteeing the right in the first place. But regardless their motivation, the founders explicitly vested the right to keep and bear arms in the people, not in the states and not in Congress. Nowhere else in the Constitution did the founders confuse the distinction between the federal powers (Congress), the state powers (the states), and individual powers (the people). There is no reason to believe they did so here.

That the founders explicitly wrote and ratified the clause "the right of the people to keep and bear arms," succinctly and emphatically ends all debate that the right to keep and bear arms might not be an individual right. But even more interesting, and of even greater significance, is the final phrase, "shall not be infringed." Precisely what does that mean?

You'll notice that the founders didn't simply preclude that the right to keep and bear arms be prohibited, as they did in the case of freedom of religion. Indeed, a liberty can be significantly regulated without being prohibited. Neither did the founders provide that the right to keep and bear arms not be abridged, as in the cases of speech, the press, assembly and petition collectively. If a liberty can not be abridged then it must be kept whole, but can a freedom be even more protected than that?

Indeed one can, and was.

To say that a right can not even be infringed asserts far more than just that it can't be prohibited, more even than it simply must be kept whole. Fringe adorns and defines the edges, the limit or boundary, of a garment or tapestry. Therefore, to say that something cannot be infringed is to say that it can not even be bounded, or hemmed in if you will. It says, quite explicitly, that this is a right that can in no way be limited. It states, quite emphatically, that this right is sacrosanct.

Stated differently, the right to keep and bear arms is not only guaranteed as an individual liberty, it is guaranteed to be an individual liberty without limit. And yes, as written and ratified by the founders, the Second Amendment makes the Brady Bill, the Gun Control Act, the National Firearms Act, indeed all federal laws concerning or even impacting the right of the people to keep and bear arms, wholly unconstitutional.

Moreover, on pain of paragraph 1 of Section 2 of Article IV, as well as the XIV Amendment, no state or local government can even nibble away at the edges, or in any way attempt to bound or hem in, the right of the people to both keep and bear arms. Even at the state level, any regulations or laws that do exist, such as might establish and organize a militia, if they are to pass Constitutional muster must recognize and reflect that the strength of liberty, the power to keep and bear arms, to resort to the exertion of force, is ultimately and Constitutionally vested not in the states, nor even in the federal powers, but in the individual peoples thereof. Indeed, therein is the implication of the predicate clause of the Second Amendment.

So what does all of this really mean in the 21st Century? It means exactly the same thing that it meant in the 18th Century, that apparently the founders actually meant it when they coined, penned, and subsequently ratified the phrase "consent of the governed." This undoubtedly seems strange to many today, but only because we've now suffered several generations of being incrementally trained to accept that it is we who need the government's consent in essentially everything we do, instead of the other way around as the founders intended. In other words, this may seem counterintuitive to some, but only to those who have uncritically and complacently accepted the colloquial understanding of the word "reasonable."

True reason, on the other hand, dictates that the power to bring force to bear must be, and rightly is, vested squarely and solely in the hands of those whose consent is required. Otherwise, the phrase "consent of the governed," like the contemporary use of the word "liberty," is made a sham, a void of empty rhetoric resonant only with the echoes of long since lost patriotism and effectively devoid of any import beyond assuaging a complacent population.

So who are they that oppose this ideal of true American lberty, the consent of the governed, and therefore by extension the Second Amendment? Who are they that would impugn our founders by making their words empty propaganda? They are the very same people who insist that Constitutional liberty must be limited by "reason," which is to say made subjective. They are people who, lacking any trust in or respect for their fellow countrymen, believe the only solution to every problem is government, and that bureaucracy is simply the price we must pay for impartiality.

But in truth, even when government is a solution, it is almost always the worst possible solution. And as for bureaucracy, it offers only indifference, not impartiality. Even so, let's consider the argument that the right to keep and bear arms must be limited.

Those who oppose the Second Amendment essentially argue two points. They claim that gun control is necessary to protect the citizenry, and that the ready availability of guns is causal to violence in general.

Surely the first test of these claims must be of efficacy, so do gun restrictions make people safer?

It is empirically observable that they do not. Multiple studies have consistently found strong correlations that in areas where guns are most common, where the Second Amendment is most respected, people (all people, armed or not) are safest. Conversely, those same studies reveal that where guns are most restricted people are at greatest risk.

I suppose that I should cite some of those studies here, but given the convenience of modern internet based search engines, and even more importantly the fact that it is ultimately irrelevant, I will leave it to the interested reader to independently research as many or few of those studies as they choose.

Besides, no truly reasoned person would ever really expect otherwise. It turns out that brigands are most active where they experience the least risk. Moreover, so inevitable is this conclusion that it would be true even if guns didn't exist, and was before they did.

Not all violence is gun violence. When push comes to shove a knife, or a sharp stick, or a rock or club can be used as an effective weapon, though unlike guns all these other weapons lend a significant advantage to the strongest. That's why in those areas where guns are most restricted, where brigands are most empowered and emboldened, where people are most at risk, even then it is only the weakest who actually experience that risk (which raises an Equal Protection question, but I’ll save that for another day).

So even if guns were completely eliminated violence would continue, but what about the claim that the availability of guns is causal to violence? When guns were far more common and affordable, when they were far more readily available even to school children, shooting sprees in general, and school shootings in particular, were so uncommon as to be unheard of and unthinkable.

Conversely, even though guns today are less common, less affordable and less available than ever before, shooting sprees and school shootings have become so common as to invade our national lexicon. They have become almost as unremarkable as they once were unthinkable. Even the United States Post Office official website includes a section discussing the phrase “going postal.”

In other words, just as observed in those aforementioned (albeit uncited) studies, we've witnessed and can recall from memory an inverse correlation between public risk and gun restrictions, one completely inconsistent with the causal relationship claimed by opponents of the Second Amendment. Their argument is empirically refuted.

Still, clearly something has caused the observed increase in violence, but what? Is the observed increase in violence attributable to the scarcity of guns alone? What else has changed in that same time period?

The obvious answer is that the moral fabric of our culture has degraded along with our liberty. The most direct correlations have been between the increases of violence, secular humanism and democratic socialism. Think about it. Society has become less safe as we've moved farther from our foundations of liberty and Judeo-Christianity. And this should be no surprise. As I pointed out earlier, these other “liberties” undermine America by undermining the qualities of men that made her great.

But at the end of the day, none of this matters. The salient fact remains that the right of the people to keep and bear arms is explicitly sacrosanct, and expressly vested by the Constitution of these United States in her citizens, the people, without limitation. Even if the arguments for gun restrictions were valid, they would be at best a basis for amending, never simply ignoring, the Constitution.

Still, it is interesting to note that Benjamin Franklin was quite literally correct that trading liberty for security does indeed cost both.

TSA Screenings and the Fourth Amendment

Not only is Benjamin Franklin's thought on the interdependence of liberty and security both interesting and empirically manifest in the subversion of the Second Amendment, one need only read today's headlines to see that it is both eminently and imminently germane to the Fourth Amendment too.

The Fourth Amendment provides that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

Nowhere does the Constitution allow for an airport exemption to this protection, yet for years we have been subject to the epitome of unreasonable searches, the indiscriminate searches of security checkpoints.

Yes, in point of fact security checkpoints are, by definition, precise examples of what the founders explicitly prohibited with the phrase "unreasonable searches." However "reasonable" they may seem to some (by today's colloquial standard), these searches are the epitome of unreasonable searches. The suspicion that someone may possess contraband can in no way be reasonably predicated on their desire to board an airplane.

Moreover, it is the antithesis of the Fourth Amendment to assert that anyone must be subjected to any search, especially to an indiscriminate search, either because everyone is subject to such a search or in order to demonstrate to those in power that he or she does not have any contraband.

The Fourth Amendment makes explicit that until and unless those in authority have and can articulate a reason to suspect that a given individual is carrying a specific item of contraband, subjecting that individual to search and/or seizure, any search and/or seizure, is patently unconstitutional. Even then, any search can only be for such specific suspected items of contraband as were articulated, so to indiscriminately search for any and all items of contraband is itself unconstitutional.

And before anyone argues "it's only reasonable" that sacrificing some liberty is necessary to be safe, let me say peremptorily, however indelicately, that perhaps it is time to accept the possibility that maybe not everyone is equipped to live among free men. Some may very well be uncomfortable trusting their neighbors and countrymen, but in free society doing so is requisite. And for truly free men it is not difficult. Even so, and again not wishing to be indelicate but nonetheless, my neighbors' cowardice is not grounds to sacrifice my son's liberty. As Benjamin Franklin so astutely noted, such sophistry is a fool's bargain.

Suppose for a moment that some restriction of liberty truly was necessary. Where does it end? I know that many Americans, having been complacently subjected to years of incremental acclimation, are content to accept these violations. So at what point will they draw the line? At what point will they say no more?

Did they draw the line at infringing the Second Amendment? Did they draw the line at being subjected to unreasonable and indiscriminate searches in airports? Did they draw the line at TSA screeners forcing us all to either allow them to take pornographic pictures of our wives and daughters or else physically sexually assault them, all the while threatening us with retaliatory arrest and detention if we so much as voice displeasure? Obviously not, so where will they draw the line? Where will we?

Perhaps they believe that opponents of liberty have gone as far as they will? Does anyone else believe they will go no further? I would point out that a terrorist can more easily target more people in a typical mall than in an airplane. So where will we draw the line next year? Will it be on this side or the other of the day we have to submit to TSA-style "gate-rape" in order to go shopping, or to the grocery store, or to a movie?

Maybe we will draw the line when we have to get permission to cross state lines, or travel between cities? Or will we? After all, it's only reasonable that if the government is going to keep us safe they have to keep tabs on where we are. Isn't it unreasonable to suggest that people be allowed to just run around all over the place without any regulation whatsoever? It would be chaotic. Besides, it’s necessary for the government to have some control over our movements in order to efficiently budget and plan for necessary governmental services, like housing and food I suppose.

Will that be too far, when we live where we're told, eat what we're told, and do what we're told in order to make certain that everyone’s needs are met? Will we feel safe once we're all living and working under the protection and oversight of the masters in the big White House? Would this model of society be more appealing, or at least less offensive, as a politburo or plantation? Either way, a rose by any name...

Okay, so I indulged a bit of sarcastic hyperbole, but I did so for a reason. Though hyperbole today, this or anarchy is inevitable reality if we don't reclaim and restore our Constitution. However ridiculously unthinkable something may seem today, how many weeks ago was it unthinkable that TSA agents might be allowed to demand that we submit to sexual assault just to get on an airplane?

Conclusions

So where must we draw the line? How far is too far? If American liberty is to be protected, preserved for future generations, then the idea that either our Constitution or the liberty it defines is somehow subjective is too far. The idea that we can have no national religion, or that we are anything but a Judeo-Christian nation is too far. The idea that the First Amendment protects all religions equally, or filth mongers at all, is too far. The idea that "the consent of the governed" is in any way unreasonable is too far. And the idea that it is ever reasonable, expedient, or even necessary, to sacrifice liberty for safety is by far too far.

In short, anytime our government loses sight of the fact that its responsibility is to protect our Constitution and our liberty, believing instead that it should protect us from ourselves, it has gone too far.

But if we've already and for so long gone too far, what hope is there? If reason is already defined by the ones who wield power, what are we to do? How can we take back our Constitution and our nation?

The most direct path would be to convince our courts, our Supreme Court in particular, that these precedents are flawed and must be set aside. Our nation could begin turning around as quickly as the Supreme Court could find occasion to clarify and declare its legitimate role as steward, not interpreter, of our Constitution. It would take as long as discovering the earliest opportunity to declare that, stare decisis notwithstanding, these are the meanings of the First, Second and Fourth Amendments. In time the Court would need to reassert the Ninth and Tenth Amendments too, but it needn’t take generations to accomplish. It could all be done post haste, if the Court so chose.

And if our justices refuse to hear and act accordingly, we must then make our legislative representatives understand that justices are not appointed for life, but only for such time as they continue in good behavior (Article III, Section 1). Furthermore, we must make those representatives realize that handing down or upholding such errant decisions as these, which diametrically oppose and even undermine the Constitution they're sworn to defend, is not continuing in good behavior. Finally, we must make those legislators understand that it is their responsibility to provide check and balance against the co-equal judicial branch by impeaching and removing from office such justices as threaten the very liberty they're sworn to protect. And if in the end our representatives refuse to accept that responsibility, and act accordingly, we must be diligent to elect new legislators that will.

God save these United States!