On July 4, 1776, 56 men pledged their "Lives," "Fortunes," and "Sacred Honor" and penned one of the single greatest documents in history. Born out of turmoil, the Declaration of Independence laid down a simple purpose for the coming American government:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness — that to secure these rights, Governments are instituted among Men.
Yet, even though our Founding Fathers made it clear the purpose of government is to preserve our inalienable rights, it appears our current president has a different idea. In a memo released on February 4 to NBC News, the Executive Branch outlined its legal argument for depriving U.S. citizens of all three through outright assassination.
In the whitepaper, the Department of Justice makes several bold statements that this action would be within the limits set forth by our Constitution. Our Founding Fathers however, and the documents they wrote, would highly disagree.
The whitepaper begins by asserting "The President has authority to respond to the imminent threat posed by al-Qa’ida and its associated forces, arising from his constitutional responsibility to protect the country." However, the president has no constitutional prerogative to protect the nation. Nowhere in the Constitution will one find any mention of protecting the nation, instead the president's true obligation is clearly outlined in his Oath of Office:
I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.
Article II, Section 1, Clause 8, U.S. Constitution
One Founder in particular wanted to make this presidential requirement to uphold the Constitution even more clear. Joseph Story, in Commentaries on the Constitution, wrote, "if, for instance, the president is required to do any act, he is not only authorized, but required, to decide for himself, whether, consistently with his constitutional duties, he can do the act."
Nothing in either the Oath of Office or our Founder's intent could constitutionally be interpreted to hand the president the authority to assassinate an American citizen, and nothing in the Constitution gives the president the power to "protect the country." The DoJ's first argument, according to our Founding Fathers, miserably fails constitutional muster.
The memo goes on to state, "any operation of the sort discussed here would be conducted in a foreign country against a senior operational leader of al-Qa'ida or its associated forces who poses an imminent threat of violent attack against the United States." This sentence may seem innocuous, were it not for the fact "associated forces" has not been defined. This was exemplified when, in Hedges v. Obama where the definition of this phrase came into question, the Justice Department could not define it.
The Founding Fathers would have spared no punches in condemning such vague language. Thomas Jefferson warned against trusting in the conscience of any man, even the president, in interpreting such language and said we should instead "bind them down from mischief with the chains of the Constitution," and James Madison cautioned that it would be "of little avail to the people … if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood."
Being that the phrase "associated forces" has no meaning, and that can be changed at any time by the Executive Branch, the Founding fathers would wholeheartedly agree with Confucius' famous statement: “when words lose their meaning, people lose their freedom."
Beyond boldly stating that the president has constitutional authority to protect the country, and using vague terms like associated forces, which can be defined however the government chooses to do so, this whitepaper makes one final, daring claim.
"The U.S. citizenship of a leader of al-Qa’ida or its associated forces, however, does not give that person constitutional immunity from attack."
In this sentence, the Justice Department claims if someone is within the undefined "associated forces" of Al-Qaeda, their U.S. citizenship will not protect you from assassination. The right to life, the DoJ seemingly backtracks, is "uniquely compelling," and "no private interest is more substantial." However, they then attempt to justify this extrajudicial assassination by claiming, "the government's interest in waging war, protecting its citizens, and removing the threat posed by members of enemy forces is also compelling."
In comparing the government's compelling interests with an individual's right to life, the Executive Branch heavily implies that they are equal. Add that to the DoJ's statement that one's U.S. citizenship provides no "constitutional immunity from attack," and this becomes much more than a mere implication.
Upon hearing this final point, our Founding Fathers would have tarred, feathered and run those who authored this memo out of town on a rail.
Benjamin Franklin slammed the idea of a "balance" between our inalienable rights and governmental interest in the country's safety. "They who can give up essential Liberty to obtain a little temporary Safety, deserve neither Liberty nor Safety," he wrote in 1775. James Madison, taking a more low-key approach in Thoughts on Government, agreed, "each individual of the society has a right to be protected by it in the enjoyment of his life, liberty, and property."
The Framer's disdain for equating the inalienable rights of man to governmental interests was only surpassed by their contempt for those interests being used as the justification to take away our rights. James Wilson, in his Lectures on Law, said that any government that is not "formed to secure and to enlarge the natural rights of its members," and has that purpose not "as its principal object," is illegitimate. Patrick Henry warned us to "guard with jealous attention the public liberty" and "suspect every one who approaches that jewel." To make the matter crystal clear, Albert Gallatin, in 1789, said the Bill of Rights "establishes some rights of the individual as unalienable and which consequently, no majority has a right to deprive them of."
When they gathered together in 1776, the signers of our Declaration of Independence made the purpose of government crystal clear. Government was formed to protect the inalienable rights of "Life, Liberty, and the Pursuit of Happiness," not destroy them.
While our current government asserts that it can take all three from a U.S. citizen based on the president's "constitutional" mandate to protect the nation, so long as the person is "associated forces" of Al-Qaeda, it is overstepping its bounds and no longer fulfilling its purpose.
If we listen to the men that once put their "Lives," "Fortunes," and "Sacred Honor" on the line for those rights, we may be able to put our government back in its place.