Not in our Stars, but in Ourselves

The late Israeli Prime Minister Menachem Begin used to tell a story of imprisonment, based perhaps on his own. He said that once behind bars, the prisoner thinks of nothing but freedom, of escaping. Because of this, cruelly sophisticated jailers introduce water into the cell. Now, the enslaved puts freedom off for the moment, seeking first to get rid of the water. From there, the jailers add cockroaches to the poor soul’s misery.  Liberty is back-burnered. By the time they flood the cell with blinding light to ensure sleep deprivation, freedom is an ancient memory: the prisoner craves a dry, roach-free existence, preferably in the dark -- nothing more.

Begin knew human psychology. He understood the psychopathic mind and malignant heart of the merciless jailer. Though politically, they were at best distant cousins, Nelson Mandela wrote that he drew great inspiration from the story of Begin’s unjust confinement. The bond shared by political prisoners goes beyond ideology.

Even a year of pandemic-induced lockdowns doesn’t make us political prisoners. But the “opportunity” the COVID crisis presents scarcely seems to wane. Even if its tide were to recede, we needn’t ignore the lessons taught by the martyrs and saints dragooned by despots and statists.

We treat today’s despots and statists like stars: a celebrity politician wins an Emmy for best performance as a leader or something; a narcissistic late-septuagenarian bureaucrat with an MD clumsily throws out the first pitch at a baseball game in our nation’s capital that regular folk were prohibited from attending and is now the subject of a children’s book; governors and mayors and health officers who are, on merit, deserving of obscurity (or incarceration) have achieved a fame once reserved for actors and athletes whose television and stadium exploits once earned Emmys and invitations to throw first pitches.

We are “endowed by [our] Creator with certain unalienable rights.” No amount of legislative mandating, regulatory meddling, bureaucratic nannying, or media-driven panic could have undone that self-evident truth if we hadn’t voluntarily relinquished our rights.

Americans used to get haughty when discussing these things: “Can’t happen here, we’ll throw the bums out!” Over time, one noticed a change: “Who do they think they are?” “I can’t believe the court will allow that.” “We need a real leader.”

With each iteration we removed the responsibility further from ourselves. Still indignant, but a little less righteous, the newer formulation forgets who is supposed to be in charge. It wasn’t long before a savage sigh began slipping from every mouth: “Aw, there oughta be a law.” And, soon, there were too many.

With each sliver of autonomy “We the People” ceded to the political branches, and with every hope that the courts would bail us out when the elected didn’t protect our interests, we drifted further and further from our founding principles. A sliver becomes a slice becomes the pie. Hope becomes a dream becomes a nightmare.

The Constitution wasn’t set up as a talisman, its very presence sufficient to thwart the evil of ambitious men and women. It is a tool, bequeathed to us with the presumption that we would learn how to use it properly and fulfill our destiny. If sufficiently understood by more than robed Pharisees and $500-an-hour Sadducees, we would rarely need to deploy it, and the Beltway Sanhedrin would stop reacting to every political wind with another thousand pages of mandates and prohibitions that cost us taxpayers a trillion dollars.

More than a century ago, Justice Oliver Wendell Holmes wrote, “Great cases like hard cases make bad law. For great cases are called great, not by reason of their importance... but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.” Northern Securities Co. v. United States (1904).

If only the legislatures, boards, and commissions could understand the truth and gravity of the dictum. Great legislation in hard times makes bad law.

We are still burdened with laws and their resulting legal principles from the depression-era power grab by the federal government. A linear progression is obvious to anyone willing to investigate, from executive branch administrative and regulatory bureaucracies to congressional usurpation of state power through a rendering of the Commerce Clause worthy of Salvador Dali.

Unenumerated powers now justify congressional meddling in every conceivable area of our lives. We let it happen as a society and few are still alive who ever breathed the clearest air of American freedom. The rest of us have grown up under a governmental structure that would be utterly foreign to the Founders: diminished states rights, bloated regulatory and administrative bureaucracies in both political branches, and courts exercising the restraint of a glutton at a cheap buffet.

While each branch of government overreacts to the crisis du jour with its newfound extra-constitutional power, the Fourth Estate ensures that the public believes there always is a crisis du jour. As in Justice Holmes’ construction, overwhelming interest, coupled with feelings, distorts judgment.

The diminution of our freedom did not happen overnight, or even just over the last 12 months. It has diminished, slowly and surely, over the last century. It could be that our thirst for freedom waned while we, collectively and voluntarily, surrendered a bit of it at a time for crumbs of what we were assured would be security. Sophisticated jailers knew it would be so.