After stonewalling for more than a year federal judges and ordinary citizens who sought the revelation of its secret legal research justifying the presidential use of drones to kill persons overseas—even Americans—claiming the research was so sensitive and so secret that it could not be revealed without serious consequences, the government sent a summary of its legal memos to an NBC newsroom earlier this week.

This revelation will come as a great surprise, and not a little annoyance, to U.S. District Court Judge Colleen McMahon, who heard many hours of oral argument during which the government predicted gloom and doom if its legal research were subjected to public scrutiny. She very reluctantly agreed with the feds, but told them she felt caught in “a veritable Catch-22,” because the feds have created “a thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reasons for their conclusion a secret.”

She was writing about President Obama killing Americans and refusing to divulge the legal basis for claiming the right to do so. Now we know that basis.

The undated and unsigned 16-page document leaked to NBC refers to itself as a Department of Justice white paper. Its logic is flawed, its premises are bereft of any appreciation for the values of the Declaration of Independence and the supremacy of the Constitution, and its rationale could be used to justify any breaking of any law by any “informed, high-level official of the U.S. government.”

The quoted phrase is extracted from the memo, which claims that the law reposes into the hands of any unnamed “high-level official,” not necessarily the president, the lawful power to decide when to suspend constitutional protections guaranteed to all persons and kill them without any due process whatsoever. This is the power claimed by kings and tyrants. It is the power most repugnant to American values. It is the power we have arguably fought countless wars to prevent from arriving here. Now, under Obama, it is here.

This came to a boiling point when Obama dispatched CIA drones to kill New Mexico-born and al-Qaida-affiliated Anwar al-Awlaki while he was riding in a car in a desert in Yemen in September 2011. A follow-up drone, also dispatched by Obama, killed Awlaki’s 16-year-old Colorado-born son and his American friend. Awlaki’s American father sued the president in federal court in Washington, D.C., trying to prevent the killing. Justice Department lawyers persuaded a judge that the president always follows the law, and besides, without any evidence of presidential law breaking, the elder Awlaki had no case against the president. Within three months of that ruling, the president dispatched his drones and the Awlakis were dead. This spawned follow-up lawsuits, in one of which McMahon gave her reluctant ruling.

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Then the white paper appeared. It claims that if an American is likely to trigger the use of force 10,000 miles from here, and he can’t easily be arrested, he can be murdered with impunity. This notwithstanding state and federal laws that expressly prohibit non-judicial killing, an executive order signed by every president from Gerald Ford to Obama prohibiting American officials from participating in assassinations, the absence of a declaration of war against Yemen, treaties expressly prohibiting this type of killing, and the language of the Declaration, which guarantees the right to live, and the Constitution, which requires a jury trial before the government can deny that right.

The president cannot lawfully order the killing of anyone, except according to the Constitution and federal law. Under the Constitution, he can only order killing using the military when the U.S. has been attacked or when an attack is so imminent that delay would cost innocent lives. He can also order killing using the military in pursuit of a declaration of war enacted by Congress.

Unless Obama knows that an attack from Yemen on our shores is imminent, he’d be hard-pressed to argue that a guy in a car in the desert 10,000 miles from here—no matter his intentions—poses a threat so imminent to the U.S. that he needs to be killed on the spot in order to save the lives of Americans who would surely die during the time it would take to declare war on the country that harbors him, or during the time it would take to arrest him. Under no lawful circumstances may he use CIA agents for killing. Surely, CIA agents can use deadly force defensively to protect themselves and their assets, but they may not use it offensively. Federal laws against murder apply to the president and to all federal agents and personnel in their official capacities, wherever they go on the planet.

Obama has argued that he can kill Americans whose deaths he believes will keep us all safer, without any due process whatsoever. No law authorizes that. His attorney general has argued that the president’s careful consideration of each target and the narrow use of deadly force are an adequate and constitutional substitute for due process. No court has ever approved that. And his national security adviser has argued that the use of drones is humane since they are “surgical” and only kill their targets. We know that is incorrect, as the folks who monitor all this say that 11 percent to 17 percent of the 2,300 drone-caused deaths have been those of innocent bystanders.

Did you consent to a government that can kill whom it wishes? How about one that plays tricks on federal judges? How long will it be before the presidential killing comes home?

If you have listened to President Obama and Vice President Biden talk about guns in the past month, you have heard them express a decided commitment to use the powers of the federal government to maintain safety in the United States. You also have heard congressional voices from politicians in both parties condemning violence and promising to do something about it. This sounds very caring and inside the wheelhouse of what we hire and pay the federal government to do.

But it is clearly unconstitutional.

When the Founders created the American republic, they did so by inducing constitutional conventions in each of the original 13 states to ratify the new Constitution. The idea they presented, and the thesis accepted by those ratifying conventions, was that the states are sovereign; they derive their powers from the people who live there. The purpose of the Constitution was to create a federal government of limited powers—powers that had been delegated to it by the states. The opening line of the Constitution contains a serious typographical error: “We the People” should read “We the States.” As President Ronald Reagan reminded us in his first inaugural address, the states created the federal government and not the other way around.

Notwithstanding the Constitution’s typo, the states delegated only 16 unique, discrete powers to the new federal government, and all of those powers concern nationhood. The Constitution authorizes the feds to regulate in areas of national defense, foreign affairs, keeping interstate commerce regular, establishing a post office, protecting patents and artistic creations, and keeping the nation free. The areas of health, safety, welfare and morality were not delegated to the feds and were retained by the States.

How do we know that? We know it from the language in the Constitution itself and from the records of the debates in the state ratifying conventions. The small-government types, who warned at these conventions that the Constitution was creating a behemoth central government not unlike the one in Great Britain from which they had all just seceded, were assured that the unique separation of powers between the states and the new limited federal government would guarantee that power could not become concentrated in the central government.

It was articulated even by the big-government types in the late 18th century—such as George Washington and Alexander Hamilton—as well as by the small-government types—such as Thomas Jefferson and James Madison—that the new government was limited to the powers delegated to it by the states and the states retained the governmental powers that they did not delegate away. At Jefferson’s insistence, the Bill of Rights was added to the Constitution to keep the new government from interfering with natural rights such as speech, worship, self-defense, privacy and property rights, and the 10th Amendment was included to assure that the Constitution itself would proclaim affirmatively that the powers not delegated to the feds were retained by the states or the people.

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The Supreme Court has ruled consistently and countless times that the “police power,” that is, the power to regulate for health, safety, welfare and morality, continues to be reposed in the states, and that there is no federal police power. All of this is consistent with the philosophical principle of “subsidiarity,” famously articulated by St. Thomas Aquinas. Aquinas argued that the problems that are closest to the people needing government intervention should be addressed by the government closest to those people. Its corollary is that all governmental intervention should be the minimum needed.

Now, back to Obama and Biden and their colleagues in the government. If the feds have no legitimate role in maintaining safety, why are they getting involved in the current debate over guns? We know that they don’t trust individuals to address their own needs, from food to health to safety, and they think—the Constitution to the contrary notwithstanding—that they know better than we do how to care for ourselves. Obama and Biden and many of their colleagues in government are the same folks who gave us Obamacare, with its mandates, invasions of privacy, increased costs and federal regulation of health care. They call themselves progressives, as they believe that the federal government possesses unlimited powers and can do whatever those who run it want it to do, except that which is expressly prohibited.

This brings us back to guns. The Constitution expressly prohibits all governments from infringing upon the right of the people to keep and bear arms. This permits us to defend ourselves when the police can’t or won’t, and it permits a residue of firepower in the hands of the people with which to stop any tyrant who might try to infringe upon our natural rights, and it will give second thoughts to anyone thinking about tyranny.

The country is ablaze with passionate debate about guns, and the government is determined to do something about it. Debate over public policy is good for freedom. But the progressives want to use the debate to justify the coercive power of the government to infringe upon the rights of law-abiding folks because of what some crazies among us have done. We must not permit this to happen.

The whole purpose of the Constitution is to insulate personal freedom from the lust for power of those in government and from the passions of the people who sent them there.

Gen. David Petraeus

The evidence that Gen. David Petraeus, formerly the commander of U.S. troops in Afghanistan, the author of the current Army field manual, Princeton Ph.D. and, until last week, the director of the Central Intelligence Agency, was forced to resign from the CIA to silence him is far stronger than is the version of events that the Obama administration has given us.

The government would have us believe that because the FBI confronted Petraeus with his emails showing a pattern of inappropriate personal private behavior, he voluntarily departed his job as the country’s chief spy to avoid embarrassment. The government would also have us believe that the existence of the general’s relationship with Paula Broadwell, an unknown military scholar who wrote a book about him last year, was recently and inadvertently discovered by the FBI while it was conducting an investigation into an alleged threat made by Broadwell to another woman. And the government would as well have us believe that the president learned of all this at 5 p.m. on Election Day.

We now know that the existence of a personal relationship between Broadwell and Petraeus had been suspected and whispered about by his senior-level colleagues and by his personal staff in the military, who worried that it might become publicly known, since before the time that he came to run the CIA.

We also know that when he was nominated to run the CIA, that nomination was preceded by a two-month FBI-conducted background check that likely would have revealed the existence of his relationship with Broadwell. The FBI agents conducting that background check surely would have seen his visitor logs while he commanded our troops and would have interviewed his military colleagues and regular visitors and those colleagues who knew him well and worked with him every day, and thus learned about his personal life. That’s their job.

And that information would have been reported immediately to President Obama and to the Senate Intelligence Committee, prior to Petraeus’ formal nomination and prior to his Senate confirmation hearing.

In the modern era, office-holders with forgiving spouses simply do not resign from powerful jobs because of a temporary, non-criminal, consensual adult sexual liaison, as the history of the FDR, Eisenhower, JFK, LBJ, and Clinton presidencies attest. So, why is Petraeus different? Someone wants to silence him.

Petraeus told the Senate and House Intelligence Committees on September 14, 2012, that the mob attack on the U.S. consulate in Benghazi, Libya, three days earlier, was a spontaneous reaction of Libyans angered over a YouTube clip some believed insulted the prophet Muhammad. He even referred to that assault—which resulted in the murders of four Americans, now all thought to have been CIA agents—as a “flash mob.” His scheduled secret testimony this week before the same congressional committees will produce a chastened, diminished Petraeus who will be confronted with a mountain of evidence contradicting his September testimony, perhaps exposing him to charges of perjury or lying to Congress and causing substantial embarrassment to the president.

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It’s obvious that someone was out to silence Petraeus. Who could believe the government version of all this? The same government that wants us to believe that FBI agents innocently and accidentally discovered the Petraeus/Broadwell affair a few months ago and confronted Petraeus with his emails a few weeks ago is a cauldron of petty jealousies. From the time of its creation in 1947, the CIA has been a bitter rival of the FBI. The two agencies are both equipped with lethal force, they both often operate outside the law, and they are each seriously potent entities. Their rivalry was tempered by federal laws that until 2001 kept the CIA from operating in the U.S. and the FBI from operating outside the U.S.

In one of his many overreactions to the events of 9/11, however, President George W. Bush changed all that with an ill-conceived executive order that unlawfully unleashed the CIA inside the U.S. and the FBI into foreign countries. Rather than facilitating a cooperative spirit in defense of individual freedom and national security, this reignited their rivalry. FBI agents, for example, publicly exposed CIA agents whom they caught torturing detainees at Gitmo, and Bush was forced to restrain the CIA.

Isn’t it odd that FBI agents would be reading the emails of the CIA director to his mistress and that the director of the FBI, who briefs the president weekly, did not make the president aware of this? The FBI could only lawfully spy on Petraeus by the use of a search warrant, and it could only get a search warrant if its agents persuaded a federal judge that Petraeus himself—not his mistress—was involved in criminal behavior under federal law.

The agents also could have bypassed the federal courts and written their own search warrant under the Patriot Act, but only if they could satisfy themselves (a curious and unconstitutional standard) that the general was involved in terror-related activity. Both preconditions for a search warrant are irrelevant and would be absurd in this case.

All this—the FBI spying on the CIA—constitutes the government attacking itself. Anyone who did this when neither federal criminal law nor national security has been implicated and kept the president in the dark has violated about four federal statutes and should be fired and indicted. The general may be a cad and a bad husband, but he has the same constitutional rights as the rest of us.

No keen observer could believe the government’s Pollyanna version of these events. When did the CIA become a paragon of honesty? When did the FBI become a paragon of transparency? When did the government become a paragon of telling the truth?

Barack Obama

Only in America can a president who inherits a deep recession and whose policies have actually made the effects of that recession worse get re-elected. Only in America can a president who wants the bureaucrats who can’t run the Post Office to micromanage the administration of every American’s health care get re-elected. Only in America can a president who kills Americans overseas who have never been charged or convicted of a crime get re-elected. And only in America can a president who borrowed and spent more than $5 trillion in fewer than four years, plans to repay none of it and promises to borrow another $5 trillion in his second term get re-elected.

What’s going on here?

What is going on is the present-day proof of the truism observed by Thomas Jefferson and Alexander Hamilton, who rarely agreed on anything in public: When the voters recognize that the public treasury has become a public trough, they will send to Washington not persons who will promote self-reliance and foster an atmosphere of prosperity, but rather those who will give away the most cash and thereby create dependency. This is an attitude that, though present in some localities in the colonial era, was created at the federal level by Woodrow Wilson and Theodore Roosevelt, magnified by FDR, enhanced by LBJ, and eventually joined in by all modern-day Democrats and most contemporary Republicans.

Mitt Romney is one of those Republicans. He is no opponent of federal entitlements, and he basically promised to keep them where they are. Where they are is a cost to taxpayers of about $1.7 trillion a year. Under President Obama, however, the costs have actually increased, and so have the numbers of those who now receive them. Half of the country knows this, and so it has gleefully sent Obama back to office so he can send them more federal cash taken from the other half.

It is fair to say that Obama is the least skilled and least effective American president since Jimmy Carter, but he is far more menacing. His every instinct is toward the central planning of the economy and the federal regulation of private behavior. He has no interest in protecting American government employees in harm’s way in Libya, and he never admits he has been wrong about anything. Though he took an oath to uphold the Constitution, he treats it as a mere guideline, whose grand principles intended to guarantee personal liberty and a diffusion of power can be twisted and compromised to suit his purposes. He rejects the most fundamental of American values—that our rights come from our Creator, and not from the government. His rejection of that leads him to an expansive view of the federal government, which permits it, and thus him, to right any wrong, to regulate any behavior and to tax any event, whether authorized by the Constitution or not, and to subordinate the individual to the state at every turn.

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As a practical matter, we are in for very difficult times during Obama’s second term. Obamacare is now here to stay; so, no matter who you are or how you pay your medical bills, federal bureaucrats will direct your physicians in their treatment of you, and they will see your medical records. As well, Obama is committed to raising the debt of the federal government to $20 trillion. So, if the Republican-controlled House of Representatives goes along with this, as it did during Obama’s first term, the cost will be close to $1 trillion in interest payments every year. As well, everyone’s taxes will go up on New Year’s Day, as the Bush-era tax cuts will expire then. The progressive vision of a populace dependent on a central government and a European-style welfare state is now at hand.

Though I argued during the campaign that this election was a Hobson’s choice between big government and bigger government, and that regrettably it addressed how much private wealth the feds should seize and redistribute and how much private behavior they should regulate, rather than whether the Constitution permits them to do so, and though I have argued that we have really one political party whose two branches mirror each other’s wishes for war and power, it is unsettling to find Obama back in the White House for another four years. That sinking feeling comes from the knowledge that he is free from the need to keep an eye on the electorate, and from the terrible thought that he may be the authoritarian we have all known and feared would visit us one day and crush our personal freedoms.

Can you vote by not voting? In a presidential election year in which the critical issues have been how much personal behavior the federal government should regulate and how much private wealth it should transfer and consume, rather than whether it should do so, many folks who are fed up with what George W. Bush and Barack Obama have brought us and fear more of the same from Mitt Romney are seriously suggesting that they will express their profound objection to big government by not voting for anyone for president.

On the other hand, I know many good freedom-loving people who are fed up with big government but view Romney as the lesser of two evils from whom they expect a turn away from the path of government sector growth and private sector shrinkage on which President Obama has taken us.

The president has stated in his campaign for re-election that he underestimated the weakness of economic forces, and he now knows that no one could have corrected them in the past four years. Essentially, his best argument is that he has consumed his first term learning what to do to correct our economic woes, and he needs another four years in office to put into effect what he has learned. He wants to borrow more and spend more and transfer more wealth.

What he fails to realize, of course, is that you cannot correct a problem essentially created by too much government borrowing and spending with more government borrowing and spending. The president’s values are Wilsonian: Personal freedom and private property can be subordinated to the common good; the federal government knows better than the free market how to bring about prosperity; killing is such an effective tool of foreign policy that the decision to kill cannot be vested in a Congress that can’t produce a budget; and the Constitution is merely a guideline to be consulted from time to time. I am sure he believes that our rights come from the government and not from our humanity.

Romney does understand that only private enterprise can produce wealth, while the government merely transfers or consumes it. I believe him when he argues that the degree of federal involvement in the free market distorts the market, gives certain parts of it a false sense of stability and expectation, and ultimately costs more than it helps. The cost is in tax dollars taken from those who could otherwise employ those dollars for investment, thus impeding prosperity and jobs. And the cost is in government borrowing that is never repaid but merely rolled over, and in the debt service that now exceeds half a trillion dollars annually.

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Romney is right to condemn the $5 trillion increase in the federal government’s debt during the Obama administration, but he’s curiously silent on his running mate’s voting record: Rep. Paul Ryan, the Republican candidate for vice president, voted to authorize the debt increases sought during the Bush and Obama years.

The case for Romney would also be far more appealing to libertarians and others who fear the size and scope of the federal government if he were not such a clone of George W. Bush on foreign policy. Hasn’t he learned that the hundreds of thousands of lives lost and the $2 trillion the federal government borrowed and spent on war and nation building in Iraq and Afghanistan have not made a single American one iota more free or safer?

Now back to voting. Can one morally vote for the lesser of two evils? In a word, no. A basic principle of Judeo-Christian teaching and of the natural law to which the country was married by the Declaration of Independence is that one may not knowingly do evil that good may come of it. So, what should a libertarian do?

If you recognize as I do that the Bush and Obama years have been horrendous for personal freedom, for the soundness of money and for fidelity to the Constitution, you can vote for former New Mexico Gov. Gary Johnson. He is on the ballot in 48 states. He is a principled libertarian on civil liberties, on money, on war and on fidelity to the Constitution. But he is not going to be elected.

So, is a vote for Johnson or no vote at all wasted? I reject the idea that a principled vote is wasted. Your vote is yours, and so long as your vote is consistent with your conscience, it is impossible to waste your vote.

On the other hand, even a small step toward the free market and away from the Obama years of central economic planning would be at least a small improvement for every American’s freedom. A journey of a thousand miles begins with a single step. That is Romney’s best argument. I suspect it will carry the day next Tuesday.

Gary Johnson

President Obama has been a failure. On his watch, the American economy has significantly deteriorated largely because he has stifled free market forces by over-regulating them and because he has laden taxpayers with debt. Those two factors alone—the federal government increasing the cost of doing business by telling businesses from physicians to major industries how to do their work, and the federal government spending trillions it doesn’t have and pushing the debts onto future generations—are enough to sink any economy.

In this arena, Mitt Romney has it half-right. He does understand that only free market forces can produce prosperity, but he fails to see that when the government spends what it doesn’t have, the result is inflation and higher taxes for future generations. Why does the federal government now spend half a trillion a year in debt service? Because every president, Republicans as well as Democrats, from FDR to Obama has borrowed money in order to spend more than he collected and has let future generations deal with repaying the debt. Because the feds do not repay (they merely roll over) their debt, the cost of interest payments has skyrocketed. Romney’s ability to articulate the virtues of the free market and to dance around the issue of debt, while the president nearly fell asleep, are the reasons he did so well in the presidential debate last week.

In the realm of foreign affairs, the president has unleashed a torrent of violence in the Middle East by supporting some of the people his predecessor was fighting a few years ago. Those folks now run the government in Libya and Egypt, and those places are now unsafe for Americans. What would Romney do? He’d insert the U.S. military to extend American dominance and build a new world order. What has Obama done? He’s bombed and killed innocents with drones. Neither has learned the lessons of 9/11: You cannot kill people or occupy foreign lands without moral and legal justification, lest you suffer deadly consequences.

Because Romney and Obama are different only in degree, I wish the cabal of former leaders of the two major political parties that runs the debates would permit former New Mexico Gov. Gary Johnson to participate. He is the Libertarian Party candidate who is on the ballot in all 50 states and the only current national candidate who if elected would shrink the government and keep it within the confines of the Constitution.

Don’t hold your breath. The debates are crafted by the folks who run the Romney and Obama campaigns. Romney is afraid of Johnson because he might take the votes of those who are tired of unconstitutional government and deficits and war. Obama is afraid of Johnson because he might take the votes of those who are appalled at the government’s murderous drug wars and its assaults on personal freedom and who also are tired of war. Both sides fear Johnson because he is essentially fearless when it comes to his belief that the Constitution means what it says—meaning if it does not authorize the feds to regulate health care, fight undeclared wars or mortgage the future, then they simply cannot do it.

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But the powers that run the means by which we elect presidents have decided that they can ill-afford a frontal assault on the big government they have created, on national television much less, and four weeks before a presidential election. You see, without Johnson in these debates, the argument will remain how much the feds should regulate, rather than whether they should do so.

I was disappointed but not surprised when Romney defended the concept of the feds regulating ordinary commercial transactions and borrowing money to spend it on things like federal aid to education, rather than defending the free market and the constitutional restraints on the feds. Obama is either a Marxist who doesn’t believe in personal freedom or private property, or a nihilist who doesn’t believe in anything except his own ability to exercise governmental power. Romney sounds like another big-government Republican who wants to regulate part of the economy, fight wars on a credit card and let your grandchildren pay for it.

If you want a real debate—one that will explore the proper constitutional role of the federal government in our lives before it gets so big that we cannot safely challenge it—you will be disappointed, unless Gary Johnson is let in.

President Obama is a failure as a president, and Gov. Romney is a failure as a candidate.

When he took office, Obama told the press that if he couldn’t cure the economic mess he inherited from President George W. Bush in four years, he wouldn’t deserve a second term. I guess he didn’t anticipate making the mess worse.

When he took office, the federal government owed $11 trillion to its creditors; today it owes $16 trillion. When he took office, gasoline was running about $1.85 a gallon and today costs about $3.85 a gallon. This is price inflation that he directly caused by flooding the markets with cash, and that directly harms the middle class and the poor. Unemployment has remained north of 8 percent throughout his presidency for those still looking for a job, and about 16 percent if you count all able-bodied out-of-work adults, half of whom have stopped looking for work on his watch.

He supported radical fanatics in their takeovers of the governments of Libya and Egypt, even going so far as to help them kill Col. Gadhafi, the former Libyan strongman who was once our ally. In the process, they opened jails in Libya, and out came some of the same folks the U.S. government has been fighting against in the Middle East since 2001. Obama pushed from power Hosni Mubarak, the strongman in Cairo, and he was replaced by the head of a criminal organization that Obama’s own State Department has prohibited Americans from engaging with. (Query: If the government derives its powers from the consent of the governed, how can the government help a foreign group and at the same time prohibit Americans from doing the same?)

In his lust to build a new world order in the Middle East, a goal for which he roundly criticized President George W. Bush, Obama has unilaterally, unconstitutionally and unlawfully killed Americans there. He killed Osama bin Laden when he could have captured him, and he let a mob kill our ambassador to Libya when he could have protected him—all to justify a value-free foreign policy that has no lasting friends or enemies, just fleeting interests. And he has killed thousands in foreign lands in secret, using drones that will soon find their way here and come back to haunt him.

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Perhaps the next month will prove me wrong on Romney, but so far he is putting the electorate to sleep. I believe him when he claims to favor free market approaches to the nation’s economic ills, but I don’t believe him when he rails against big government and central economic planning, because his record belies his words. He is, of course, the father of the individual mandate—a totalitarian giant leap forward for the welfare state. And he has stated that if elected and re-elected, he will borrow money every year he is in office until the last.

When he was interviewed with the president on “60 Minutes” last week, I purposely did not watch or listen to the show. The next morning, I read the transcript of the interview and thought many of Romney’s answers were articulate and rational. Then I watched the same interview on tape and was bored nearly to death. Romney cannot put a fire in people’s bellies. The only reason he gives for voting for him is that he is not Obama—a reason that appeals to just under half the country, but is not enough to seal the deal. He needs to recognize that his audience for victory is not his former neighbors in Boston, but Joe Sixpack in the heartland.

He supports all of Obama’s killings in the Middle East, but claims he wants to control events there with a more muscular foreign policy. He cannot justify that view, along with the fact that it has failed and put us close to bankruptcy, to an electorate weary of wars. He rips into Obama’s borrowing, but overlooks his running mate’s voting record in Congress, which authorized all of it. At first he vowed to repeal Obamacare saying it is unconstitutional, and then he said he wants to keep the parts he likes, even if they are unconstitutional.

Can anyone get excited about Romney? Aside from a capitalistic attitude about the economy—as opposed to the president’s love of central economic planning—does anyone know what views he will embrace on Inauguration Day? Do you know anyone just aching to vote for him, the way conservatives were for Ronald Reagan in 1980 and progressives were for Obama in 2008? I do not know of such a person.

What do we do? The president’s failures are legion and have made all of us the worse for them. Gov. Romney’s failures are obvious and will give us four more years of Obama. Who says the system is not fixed?

Ballot box image courtesy of Shutterstock

The criticisms of the recent absurd comments by Missouri Republican Congressman Todd Akin, who at this writing is his party’s nominee to take on incumbent Missouri Democratic Sen. Claire McCaskill in November in a contest he had been expected to win, have focused on his clearly erroneous understanding of the human female anatomy. In a now infamous statement, in which he used the bizarre and unheard-of phrase “legitimate rape,” the congressman gave the impression that some rapes of women are not mentally or seriously resisted. This is an antediluvian and misogynistic myth for which there is no basis in fact and which has been soundly and justly condemned.

Akin also stated that the female anatomy can resist unwanted impregnation. This, too, is absurd, offensive and incorrect. Medical science has established conclusively that women cannot internally block an unwanted union of egg and sperm, no matter the relationship between male and female. I think even schoolchildren understand that.

What has gone unmentioned, however, in the cacophony of condemnation by Republicans and Democrats, is the implication in Akin’s comments that rape is not a moral justification for abortion. In that, he is correct: It is not.

Abortion takes the life of innocent human beings who are the most vulnerable in our society. Abortion is today the most frequently performed medical procedure in the United States. American physicians perform about two abortions every minute of every hour of every day: about 1 million a year since 1973. In my home state of New Jersey, abortion is permitted up to the moment of birth, and the state will even pay for it if the mother meets certain financial criteria.

How low have we sunk? What are the consequences of this mass slaughter? How did we get here?

We got here because of the most reprehensible and unconstitutional Supreme Court opinion in the modern era. In a throwback to its infamous Dred Scott decision—in which a pre-Civil War Supreme Court declared that blacks are not persons and hence cannot claim the protections of the Constitution—the court essentially said in Roe vs. Wade the same of fetuses in the womb.

Roe vs. Wade has spawned more slaughter than all 20th-century tyrants combined. The consequences of this slaughter are vast lost generations of human beings who were denied by the law the right to live. The economic consequences from which we all suffer today—entitlements too costly to afford and too few wage earners to pay for them—are directly attributable to the absence of population growth.

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I am not arguing in favor of entitlements. The Constitution does not authorize the federal government to provide them. But when FDR and LBJ concocted their entitlement schemes in order to build permanent dependence on the Democratic Party, they understood population growth. Their understanding, too, was slaughtered by abortion. A society that prefers death to life not only cannot prosper; it cannot survive. Soon 40 percent of federal tax revenues will be dedicated to interest on the federal debt, and most of that borrowing has been to pay for entitlements. We are headed for a cliff.

So are the babies in the womb. But isn’t the baby in a womb a person? Of course the baby in a womb is a person. The baby is produced by the physical interaction of two human parents, and every unborn baby possesses a fully actualizable human genome: all the material necessary to grow to adulthood and to exist independently outside the womb.

What about rape? Rape is among the more horrific violations of human dignity imaginable. But it is a crime committed by the male, not the female—and certainly not by the child it might produce. When rape results in pregnancy, the baby has the same right to life as any child born by mutually loving parents. Only the Nazis would punish a child for the crimes of his or her father.

Every abortion ends the life of an innocent unborn human being. When politicians in both parties claim to be pro-life but favor abortions because of the criminal behavior of the father, as in rape or incest, they are politically rejecting that hard truth. What other violations of the natural law will they condone for political expedience?

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We are in terrible straits this presidential election. We have a choice between a president who has posed more of a danger to personal freedom than any in the past 150 years and a Republican team that wants to return to Bush-style big government.

President Barack Obama has begun to show his hand at private fundraisers and in unscripted comments during his campaign. And the essence of his revelations is dark. His vision of a shared prosperity should frighten everyone who believes in freedom, because it is obvious that the president doesn’t. He believes the federal government somehow possesses power from some source other than the Constitution that enables it to take from the rich and give to the poor. He calls this “a new vision of an America in which prosperity is shared,” and he declared, “If you’ve got a business, you didn’t build that. Somebody else made that happen.”

Today in America, nearly half of all households receive either a salary or some financial benefit from the government; the other half pay for it. In Obama’s vision for America, no one will be permitted to become too rich, no matter his skills and hard work. He somehow believes that government seizures and transfers of wealth generate prosperity. We know, of course, that the opposite occurs. Seizing wealth through taxation removes it from the private sector for investment. That produces job losses and government dependence on a massive scale.

The federal government has a debt of $16 trillion. We have that debt because both political parties have chosen to spend today and put the burden of paying for the spending onto future generations. The debt keeps increasing, and the feds have no intention of paying it off. Every time the government has wanted to increase its lawful power to borrow since World War II, members of Congress and presidents from both parties have permitted it to do so.

Last week, Gov. Mitt Romney, the presumptive Republican nominee for president, blasted Obama for borrowing more than one trillion dollars in just the past year. He must have forgotten to look at the voting record of his designated running mate, Wisconsin Congressman Paul Ryan.

Ryan voted for nearly every request to raise the debt ceiling during his 14 years in Congress. He voted for TARP, the GM bailout and most of the recent stimulus giveaways. He also voted to pay for the Iraq and Afghanistan wars on a credit card, which added another trillion dollars to the government’s debt. And he voted to assault the Constitution by supporting the Patriot Act and its extensions, as well as Obama’s unconstitutional proposal to use the military to arrest Americans on American soil and detain those arrested indefinitely.

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We have a rough idea of how Obama would bring about government control of private industry through Obamacare and Dodd-Frank. From Ryan’s voting record, we have a rough idea of what Romney-Ryan would bring us: more of the Bush-era big government. In other words, Ryan is just another big-government Republican holding himself out as a fiscal conservative. Even his controversial budget proposals—which the House approved, but the Senate declined to address—would have increased government spending. It was less of an increase than Obama wanted, which is why the Senate Democrats refused to consider it, but it was not a cut in spending.

I am a firm believer that the Constitution means what it says. The federal government can only do what the Constitution authorizes it to do. The modern-day Republican and Democratic Parties have made a shambles of that principle. Nevertheless, I understand the “anybody but Obama” urge among those who fear his excesses, as do I. Obama has killed innocents, altered laws, rejected his oath to enforce the law faithfully, and threatened to assault the liberty and property of Americans he hates and fears.

Even though Ryan is a smart and humble and likeable man who was once a disciple of Ayn Rand on economics, as am I, the Republicans want the Bush days of war and spending beyond our means and assaults on civil liberties to return. The Bush years were bad for freedom; without them, we would not have had an Obama administration.

Which do you want?

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Gazillions. That’s the number of times the federal government has spied on Americans since 9/11 through the use of drones, legal search warrants, illegal search warrants, federal agent-written search warrants and just plain government spying. This is according to Sen. Rand Paul, R-Ky., who, when he asked the government to tell him what it was doing to violate our privacy, was given a classified briefing. The senator—one of just a few in the U.S. Senate who believes that the Constitution means what it says—was required by federal law to agree not to reveal what spies and bureaucrats told him during the briefing.

The rules for classified briefings of members of Congress on areas of government behavior that the government wants to keep from its employers—the American people—are a real Catch-22. Those rules allow representatives and senators to interrogate government officials about government behavior that they are afraid to reveal, and they require those officials to answer honestly and completely. But the rules keep the interrogations secret, and they expressly prohibit members of Congress from telling anyone what they have learned.

So Paul and his colleagues who joined in the secret briefing now know the terrible truth about the government watching us, but they cannot reveal what they know. Paul—who is the son of Rep. Ron Paul, the greatest congressional defender of limited government in our era—when asked what he learned at these secret briefings and aware that he could be prosecuted for telling the truth, chose a fictitious word to describe the vast number of violations of privacy at the hands of federal agents: gazillions. Paul’s personal courage in using a word like gazillions to convey an oblique message of truth in the face of an unjust law that commanded his silence reminded me of St. Thomas More’s silence in the face of an unjust law that commanded his assent to the king’s headship of the church.

The feds are no happier with the senator’s personal courage than the king was with St. Thomas More’s, but there is not much they can do about it. If you check out your dog-eared dictionary, you will find that if it is listed at all, it gets a mention as slang. Yet most of us hearing or seeing that word understand it to mean some huge—perhaps even incalculable—number.

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The point here is terrifying. If the government derives its powers from the consent of the governed, how can it do things to us to which we have not consented? And when it does these things—like send a drone over your back yard to learn who is coming to your Saturday barbeque or to see what fertilizer you are using in your vegetable garden or to take a peek into your living room or bedroom—and when the laws the government has written prevent our elected representatives from telling us what it is doing, we are at the doorsteps of tyranny. The government gave Paul the distinct impression that it was afraid of our exercise of our personal freedoms, and thus it needs to watch us as we do so. This is the same government whose stated principal purpose is to preserve, protect and defend the Constitution, and thus personal freedom.

What has become of the Jeffersonian value of the primacy of the individual over the government in a free society? How have we lost the American value that the government works for us, and we don’t work for the government? What remains of the constitutionally guaranteed right to be left alone?

The answer to these questions goes to the nature of human freedom and personal courage. Freedom lies in our hearts, but to survive, it must do more than just lie there. Its essence is the exercise of unfettered choices, and the unfettered choices we make address our perpetual yearning for truth. This is a natural process that—just like the muscles in our bodies—will atrophy if unused.

So, when the government scares us into the disuse of freedom, we have only ourselves to blame when Big Brother comes calling. And when he does come, on his face there will be no smile.

The greatest distinguishing factor between countries in which there is some freedom and those where authoritarian governments manage personal behavior is the Rule of Law. The idea that the very laws that the government is charged with enforcing could restrain the government itself is uniquely Western and was accepted with near unanimity at the time of the creation of the American Republic. Without that concept underlying the exercise of governmental power, there is little hope for freedom.

The Rule of Law is a three-legged stool on which freedom sits. The first leg requires that all laws be enacted in advance of the behavior they seek to regulate and be crafted and promulgated in public by a legitimate authority. The goal of all laws must be the preservation of individual freedom. A law is not legitimate if it is written by an evil genius in secret or if it punishes behavior that was lawful when the behavior took place or if its goal is to solidify the strength of those in power. It also is not legitimate if it is written by the president instead of Congress.

The second leg is that no one is above the law and no one is beneath it. Thus, the law’s restraints on force and fraud need to restrain everyone equally, and the law’s protections against force and fraud must protect everyone equally. This leg removes from the discretion of those who enforce the law the ability to enforce it or to afford its protections selectively. This principle also requires that the law enforcers enforce the law against themselves. Of course, this was not always the case. In 1628, the British Parliament spent days debating the question “Is the king above the Rule of Law, or is the Rule of Law above the king?” Thankfully, the king lost—but only by 10 votes out of several hundred cast.

The third leg of the Rule of Law requires that the structures that promulgate, enforce and interpret law be so fundamental—Congress writes the laws, the president enforces the laws, the courts interpret the laws—that they cannot be changed retroactively or overnight by the folks who administer them. Stated differently, this leg mandates that only a broad consensus can change the goals or values or structures used to implement the laws; they cannot be changed by atrophy or neglect or crisis.

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The values in America are set forth in the Declaration of Independence, and the governmental structures in America are set forth in the Constitution. The former—that our rights are inalienable and come from our Creator and not from the government—is not merely a recitation of Thomas Jefferson’s musings. The Declaration is the articulation of our values then and now, and it, too, is the law of the land.

The Constitution was written—largely by James Madison—to define and to limit the federal government, and it was quickly amended by adding the Bill of Rights so as to be sure that natural rights would be respected by the government. This tension between the power of the majority—at the ballot box or in Congress—and the rights of the minority—whether a discrete class of persons or a minority of one—is known as the Madisonian dilemma. Stated differently, the Constitution provides for protection against the tyranny of the majority.

In our system, the power to resolve the dilemma is reposed into the hands of the judiciary, and those who have that power are to resolve it without regard to popularity or politics. Their oath is to the Constitution. They have the final say on what the laws mean. If they follow the Rule of Law, they will invalidate that which the government has done and which is properly challenged before them and which is not authorized by the Constitution. Their very purpose is to be anti- democratic, lest the popular majority takes whatever lives, liberties or property it covets. In return for life tenure, we expect judicial modesty, and we demand constitutional fidelity—not political compromise.

In our era, the violations of the Rule of Law have become most troublesome when the government breaks its own laws. Prosecute Roger Clemens for lying to Congress? What about all the lies Congress tells? Prosecute John Edwards for cheating? What about all the cheating in Congress when it enacts laws it hasn’t read? Bring the troops home from the Middle East? What about all the innocents killed secretly by the president using CIA drones? Can’t find a way to justify Obamacare under the Constitution? Why not call it what its proponents insisted it isn’t—a tax?

We live in perilous times. The president acts above the Rule of Law and fights his own wars. Congress acts below the Rule of Law by letting the president do whatever he can get away with. And this summer, the Supreme Court rewrote the Rule of Law.

What do we do about it?

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Presently in America, nearly half of all households receive either a salary or substantial benefits from the government. Presently in America, nearly half of all adults pay no federal income taxes. Presently in America, the half that pay no income taxes receive the bulk of their income courtesy of the government, but ultimately from the half that do. This money is extracted involuntarily from the paying half by a permanent bureaucracy that extracts and gives away more each year no matter who is running the government. The recipients of these transfer payments rely upon them for subsistence, so they have a vested financial interest in sending to Washington those who will continue to take your money and give it to them.

It is no wonder that we are now saddled with the micromanagement of health care by the same bureaucratic mindset that mismanages the Post Office and everything else the federal government runs. It should not be surprising to know that presently in America, half of the people actually want the government to take care of their needs. The same was the case under Communist regimes, but here those folks vote.

Hence, we have laws that force us to be charitable to those whom the government designates as worthy of our charity, that limit the amount of salt that restaurants can put into our food, that permit the government to watch us on street corners and subways and in the lobbies of buildings, that let the president fight wars of opportunity, that permit the Federal Reserve to print money with no value and inflate prices and destroy savings, that allow the government to listen to us on our cellphones and use those phones to follow us wherever we go, and, according to CIA Director David Petraeus, that let the government anticipate our movements inside our homes.

And as of the last week in June, the government has a vast new power that was brought to us by the Supreme Court’s latest attack on personal freedom. Congress can now lawfully command any behavior of individuals that it pleases—whether or not the subject of the behavior is a power granted to Congress by the Constitution—and it may punish noncompliance with that command, so long as the punishment is called a tax.

Justice Antonin Scalia’s whimsical query during the Supreme Court oral argument on the health care law about whether Congress could make him eat broccoli suddenly isn’t as funny as it was when he asked it, because the answer is: It can fine him for not eating broccoli, so long as it calls that fine a tax.

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Quick: If you call a tail a leg, how many legs does a dog have? Answer: Four, because calling a tail a leg doesn’t make a tail a leg.

How did we get here?

We got here because voters and the government we elected, and even the courts the popular branches appointed and confirmed, have lost sight of first principles. When Thomas Jefferson wrote in the Declaration of Independence that our rights to life, liberty and the pursuit of happiness are a part of our humanity, and when we fought and won the Revolution under that premise, and when the first Congress enacted that language as the first federal law, this became the irrevocable recognition of the Natural Law as the basis for our personal freedom and limited government. Since our rights come from our humanity, they don’t come from the government.

But you would never know that from looking at the government. In New York City, where I work at Fox News Channel, we are all embroiled in two disputes this summer over the constitutional role of the government in our lives. The mayor, a self-made billionaire who likes donuts and has bodyguards but wants to tell others how to live in private and in public, is trying to ban soda pop in containers larger than 16 ounces and wants the police to be able to stop and frisk anyone on a whim—and all in the name of health and safety. He is actually banning freedom.

Imagine Jefferson being told what to eat or stopped and frisked on a whim. And then imagine the Supreme Court telling him that he must pay a tax if he fails to comport his personal private behavior as Congress—which doesn’t believe in privacy or personal freedom—commands.

Here is how you can tell that these are bad days for freedom: Does the government need your permission to violate your rights, or do you need the government’s permission to exercise them? The answer is painfully obvious.

Presently in America, what are we going to do about it?

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