Tag Archives: fourth amendment

Earth to Bill Maher: Edward Snowden isn’t the crazy one

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GREENWALD-largeTAMPA, January 21, 2014 – Bill Maher interviewed journalist Glenn Greenwald following President Obama’s speech on Friday in which the president discussed his proposals to reform the NSA. Greenwald is the journalist who first reported on the information released by Edward Snowden on the government’s domestic surveillance activities.

While Maher was respectful of Greenwald and, to some extent, Snowden, he went out of his way to smear some of Snowden’s claims about the government’s activities as “completely nuts.” He also found it necessary to take a shot at Ron Paul, who wasn’t even involved in the issue at hand.

For Maher and too many likeminded people, anyone who doesn’t view the government as a benevolent force for good is a tinfoil-hat-wearing kook who believes all civilian life is the target of a massive conspiracy involving the government, secret societies, aliens, etc. Thus Maher’s retort, “Everyone in the government isn’t out to get you.”

That’s what’s known as “framing the debate.” You’re either with Bill Maher and President Obama or you’re with the kooks. You may also be somewhere in the middle, where Maher apparently places Snowden. It completely ignores the many other perspectives one might have, including that of most libertarians.

Libertarians don’t believe that the people who work for the government are evil. It’s the institution of government itself, a monopoly on the use of force that can martial the resources of the entire nation. That kind of power is dangerous even when used by good people with good intentions.

Read the rest of the article at The Huffington Post…

Obama’s proposed NSA reforms prove he doesn’t understand checks and balances

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utah datacenterPresident Obama delivered a speech on Friday outlining his plans to address the widespread outrage over the domestic surveillance activities of the National Security Agency. However well-intentioned, the president’s proposals indicate he just doesn’t get the constitutional notion of delegated powers.

Implicit in the Fourth Amendment is the principle that the government should remain powerless unless and until an individual is reasonably suspected of having committed a crime. It isn’t even allowed to search one’s person or papers (viz. phone records, emails) to collect the proof it needs until it persuades a judge that it has probable cause.

The only reason the Fourth Amendment offers any protection is it prescribes an adversarial process. The judicial branch is predisposed to refuse to issue a warrant until the executive branch provides sufficient evidence of probable cause.

Read the rest of the article at the Daily Caller…

Obama’s NSA speech proves government can’t prevent terrorism in a free society

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obama911TAMPA, January 18, 2014 – President Obama outlined his proposed reforms of the NSA’s domestic surveillance activities in a speech on Friday. The speech was at times eloquent and the president’s intentions appear genuine, but his recommendations for reform are inadequate. As long as the government is trying to prevent crime or terrorism in the future, it’s going to trample liberty in the present.

The president stated the crux of the problem during his speech:

“So we demanded [after 9/11] that our intelligence community improve its capabilities and that law enforcement change practices to focus more on preventing attacks before they happen than prosecuting terrorists after an attack.”

Freedom requires that the government not attempt to prevent anything. All powers granted to the government relate to crimes committed in the past.

The Bill of Rights rests upon this assumption. Rooted in what is now called the “libertarian” principle of non-aggression, the Fifth Amendment prohibits the government from using force against an individual until it has proven beyond a reasonable doubt that the individual has committed a crime in the past.

The Fourth Amendment goes even farther, prohibiting the government from even searching an individual or his papers (e.g., phone records, e-mails, etc.) without probable cause that the individual has committed a crime in the past.

The entire Bill of Rights supposes that you are beyond the reach of government until you have actually committed a crime. That logically excludes the possibility of the government preventing anything, because the government must employ force against the innocent to do so.

Read the rest of the article at Communities Digital News…

Mr. Obama, tear down this data center

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datacenterTAMPA, December 17, 2013 – A federal judge’s ruling Monday confirmed what a majority of Americans already knew. The National Security Agency’s indiscriminate gathering of data on every phone call made in the United States is unconstitutional. Calling the government’s data gathering technology “almost Orwellian,” Judge Richard Leon said that James Madison would be “aghast” if he knew the government was encroaching upon liberty in such a way.

According to USA Today, he also pointed out another thing most Americans already knew. The program never has and likely never will prevent a terrorist attack.

“Given the limited record before me at this point in the litigation — most notably the utter lack of evidence that a terrorist attack has ever been prevented because searching the NSA database was faster than other investigative tactics — I have serious doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism,” the judge said.

The judge limited his ruling to the plaintiffs in the case, leaving constitutionality open for other courts to decide in other cases. The ruling is expected to be the first of many, with an expectation that the issue may eventually find its way into the Supreme Court.

Then, it’s “rights roulette” as Americans sit on the edge of their seats wondering if the government’s black-robed high priests will pronounce away more of their freedom.

It doesn’t have to come down to that. President Obama could take matters into his own hands and actually be acting within the constitutional limits of his power for a change. The president could order the NSA to cease its program, citing the federal judge’s ruling as his authority.

The president is charged to “take care that the laws are faithfully executed” by Article II Section 3 of the Constitution. That includes the laws against murder and terrorism. But the constitution doesn’t tell him how to perform that duty. It does prohibit him from doing so in a way that would violate his oath to “preserve, protect and defend the Constitution of the United States.”

A federal judge just ruled he is doing precisely that.

The president’s legacy is in serious jeopardy. He is already accused of lying to the America people, repeatedly for years, about the legislation that informally bears his name. Controversy over his administration’s handling of the Benghazi incident persists.

Despite Pollyanna assurances to the contrary, the U.S. economy remains in a depression, complete with double digit unemployment rates and Hoovervilles. Deciding not to count millions of able-bodied Americans who aren’t working and ignoring formerly middle class people living in tents under bridges doesn’t change that.

However, none of this will damage Obama’s legacy in the long term. As I’ve said before, history will not be concerned with health care programs or unemployment rates. It will be concerned with who attacked the fundamental principles of freedom and who risked everything to defend them.

President Obama campaigned against Bush era civil liberties violations in 2008. He denounced torture and promised to close Guantanamo Bay. It remains open.

He condemned the very domestic spying programs at issue here when run by the Bush administration, then sent his lawyers into court seeking legal justification to expand them even further. His administration has built a massive data center in Utah to store the ill-gotten information for as long as the government sees fit.

In an October 7, 2013 article, Siobhan Gorman of the Wall Street Journal called the data center “a symbol of the spy agency’s surveillance prowess.”

Warrantless government surveillance of its own citizens. Concentration camps where U.S. citizens could be tortured. Killing U.S. citizens without due process. This is the stuff legacies are made of.

The Alien and Sedition Acts still haunt John Adams’ legacy more than two centuries after his presidency. However, Adams’ other achievements in promoting liberty and peace overshadow them, including sacrificing a second term as president to prevent a disastrous war with France.

The Obama administration has accomplished nothing comparable. It continues to take a hard line against the whistleblower Edward Snowden who exposed the activity that a federal judge has now said violates the Constitution the president swore to defend. It has completed construction on a massive edifice dedicated to trampling the Fourth Amendment.

Unless he changes course now, this is what the president will be remembered for.

Mr. Obama, tear down this data center.

Tom Mullen is the author of A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.

 

Obama says Edward Snowden isn’t a patriot

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Tampa August 10, 2013 – Yesterday, President Obama spoke to reporters about his plans to address the growing public outcry over domestic spying programs run by the NSA and other U.S. intelligence agencies. During the press conference, Obama said that he didn’t consider Edward Snowden a patriot. Instead, those doing the spying are the patriots, along with those who have “lawfully raised their voices” to defend civil liberties.

Edward Snowden may have broken the law, but “the law is often but the tyrants will,” as Thomas Jefferson famously said.

Never has that been truer than now, when the law protects lawbreakers and forces defenders of our most sacred principles to seek political asylum in other countries. That anyone would seek asylum from the United States government at all, much less in Russia, would have been the stuff of wild fantasy just a few decades ago. Now, the torture of prisoners, arrest and detention without warrant and even execution without a trial are regarded as commonplace.

President Obama is on the wrong side of history.

Edward Snowden will be remembered as a patriot.

President Obama will be remembered as the first U.S. president to kill an American citizen without a trial. History has a word for that, too.

It isn’t patriot.

This has all happened before. Read my op-ed in The Washington Times on the first Edward Snowden in U.S. history…

Amash amendment only enforced Patriot Act, not Fourth Amendment

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Last week, Rep. Justin Amash, R-Mich., introduced an amendment to the Defense Appropriations Bill. It required the NSA and other government agencies merely to obey the Patriot Act, not the Fourth Amendment. That the data to be collected are “relevant to an ongoing national security investigation” doesn’t mean that there is probable cause that the person whose records are collected has committed a crime.

The language was taken from Sec. 214 of the Patriot Act, which amended Section 402 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1842).

Amash’s amendment did not attempt to enforce the standard set in the Fourth Amendment, which requires “probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” That the data to be collected is merely relevant to an ongoing national security investigation doesn’t necessarily mean that there is probable cause that the person whose records are collected has committed a crime.

That means the Patriot Act is unconstitutional, according to any reasonable interpretation of the Fourth Amendment.

The NSA’s activities do not even meet the lower standards set by the Patriot Act. They are illegal even under an unconstitutional law.

It is important to remember the difference between “constitutional” and “legal.” Legal means the activity in question complies with existing law passed by a legislative body. Constitutional means the legislative body had been given the power to pass the law in the first place.

The U.S. Congress not only wasn’t given the power to pass the Patriot Act, it was strictly prohibited from doing so by the Fourth Amendment. Congress passed the legislation anyway. The NSA hasn’t even complied with that.

Not only was Amash’s amendment defeated, but its sponsors were met with a backlash of scorn and ridicule from Governor Chris Christie and other defenders of the national security apparatus, citing the need to protect Americans from terrorism, regardless of the legal and constitutional issues.

If legislators can pass laws exercising powers never consented to by the people, then what does the word “constitutional” really mean?

If government agencies can ignore legislation written specifically to govern their actions, where is the rule of law?

Tom Mullen is the author of A Return to Common Sense: Reawakening Liberty in the Inhabitants of America

Libertarians to Chris Christie: Is life so dear, or peace so sweet?

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TAMPA, July 27, 2013 – Rep. Justin Amash (R-Mich.) introduced an amendment to the Defense Appropriations Bill that would have defunded the NSA’s blanket collection of metadata and limited the government’s collection of records to those “relevant to a national security investigation.”

It terrified New Jersey Governor Chris Christie, who lashed out at those who supported the bill and libertarianism in general.

“As a former prosecutor who was appointed by President George W. Bush on Sept. 10, 2001, I just want us to be really cautious, because this strain of libertarianism that’s going through both parties right now and making big headlines, I think, is a very dangerous thought,” Christie said.

Yes, it is dangerous, but to what? It is dangerous to the bloated national security state, which tramples the liberty and dignity of every American under the pretense of protecting them from what Charles Kenny recently called the “vastly exaggerated” threat of terrorism.

Chris Christie shamelessly invoked the image of “widows and orphans” of 9/11 in an attempt to discredit any resistance to the federal government’s complete disregard for the Bill of Rights. He then echoed former NYC Mayor Rudy Guiliani in claiming some imagined authority on the matter because he is the governor of the state “that lost the second-most people on 9/11.”

Newsflash to Governor Christie: You have no more moral authority on this subject than the U.S. Congress had legislative authority to pass the Patriot Act.

Christie doesn’t understand that the power that legislators may exercise is limited to what was delegated to them in the Constitution. He seems to believe that power changes depending upon how he “feels.”

“I think what we as a country have to decide is: Do we have amnesia? Because I don’t,” he said. “And I remember what we felt like on Sept. 12, 2001.”

Ignoring the cheap tactic of trying to paint libertarians as “unfeeling” or not having sympathy for the victims of 9/11, there is a simple answer to Mr. Christie’s question.

“We as a country” decide questions like this through Article V of the U.S. Constitution. The Fourth Amendment forbids the federal government from running programs like the NSA’s. Only an amendment that revises or repeals it can change that.

Until then, the federal government does not have the power to do what it is currently doing, regardless of any terrorist attacks or how Mr. Christie feels about them.

Amash’s amendment should be unnecessary, but it is preferable at the moment to the remedy offered in the Declaration of Independence for a government that exercises power not given to it by the people.

If history provides any guidance, the people will never give this power to the federal government. Let’s not forget that none of the Soviet-style security measures establishd since 9/11 have prevented a single terrorist attack, other than those the government created itself. Flight 93 on 9/11, the shoe bomber and the underwear bomber were all foiled by private citizens, the latter two after the perpetrator walked right past the government’s garish security apparatus.

The truth is that no security measures will ever be able to make Americans 100% safe from harm. There is absolutely nothing the U.S. government could do right now to prevent Russia or China from launching a nuclear attack on the United States. What makes one unlikely is the ability for the United States to retaliate and the lack of any good reason for either country to do so. The United States doesn’t routinely commit acts of war against Russia or China.

Perhaps that strategy might also be effective in preventing terrorism.

Regardless, the government can’t stop the next terrorist attack any more than it has stopped any previously. What it can do is continue to erode American liberty. This country is already unrecognizable as the same one that ratified the Bill of Rights. The Chris Christies and Michelle Bachmanns (she’s “one of them”) of this world are too busy cowering in fear to be concerned with “esoteric” subjects like the liberty and dignity of the individual.

Their opinions are not important. The people will decide whether a false sense of security is worth their liberty or not.

The first shot in this war has been fired. Amash lost the opening battle, but so did the colonists at Bunker Hill.

The real question that the American people will have to answer is this:

Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery?

Tom Mullen is the author of A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.

NSA out of control: We the people at fault

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TAMPA, June 6, 2013 – You can’t say the mainstream media went to sleep. Today, the front page of every major national news website is featuring reactions to Glenn Greenwald’s explosive report on the FISA court order that “requires Verizon on an “ongoing, daily basis” to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries.”

That means that the government is collecting information on every call made on Verizon’s service, regardless of probable cause or any suspicion that the parties have committed a crime. The Fourth Amendment was written specifically to prohibit this activity by the government. But they’re doing it, unapologetically.

The question is, what will this disturbingly subservient group called “We the People’ do about it?

It’s really time to stop making excuses. This has been duly reported by the media and it’s not like the people are powerless to do anything. When Congress first attempted to pass the infamous Emergency Economic Stabilization Act of 2008 (a.k.a. the “Wall Street bailout”), angry calls from voters caused the bill to be defeated in Congress. For one, brief, shining moment, there was real fear of the people on the faces of our so-called “representatives.”

After President Bush emerged from weeks of virtual silence to deliver his “support this bailout or the world will end” speech, the tone of the calls moderated and Congress felt sufficiently comfortable to pass the bill the second time around (bluffed by George W. Bush – now that’s embarrassing).

Regardless, the episode clearly demonstrated that if even a significant minority of the population cares enough to at least make a call to their representatives, they can affect the behavior of the beast on the Potomac.

Unfortunately, they usually don’t. In fact, anyone concerned about the size, power or cost of the federal government who thinks that it is somehow acting “unconstitutionally” really needs a reality check.

True, most of what the federal government does today isn’t authorized by the powers delegated to it in the yellow piece of parchment. In theory, that means that the people never consented to the government exercising the power and therefore it is illegitimate, even illegal. But that’s not really what “constitutional” has meant for most of human history or even what it has meant in practice for most of U.S. history.

Aristotle wrote about “constitutional government” long before any written constitution was attempted. Thomas Paine began his famous treatise with “Concise Remarks on the English Constitution.” He was not referring to a written document that specifically delegated which powers the English government could exercise (Magna Carta did not do this). There was no written English constitution.

So what did these writers mean by “constitution?” They meant the general understanding of most people in those countries about what powers the government had and how they were allocated between the various branches.

That is what “constitution” and “constitutional” has meant for most of human history and it is really the only practical definition. The attempt to codify limits on the government’s power in a written document has been a complete failure. The government simply interprets the words however outlandishly necessary to do what they want and get their high priests in black robes to pronounce their scheme “constitutional.”

And it is constitutional if no one objects. That’s reality.

Using this definition, the historical growth of the $4 trillion federal monster has been completely constitutional. Not only has there been little objection by the people, but they have for the most part overwhelmingly supported each new usurpation. The Federal Reserve was passed with overwhelming public support, as was the Income Tax. FDR was elected four times, three after his technically unconstitutional “New Deal” was clearly promulgated and understood by the people.

Just watch your fellow Americans laugh and joke with TSA agents while having their persons and property searched without a warrant or probable cause, even while the government puts its hands on their children. That makes it “constitutional” in the true sense of the word, the Fourth Amendment notwithstanding.

Even the Patriot Act enjoyed popular support, for the most part. Yes, there was some noise about it from liberals, but for the most part only because a Republican Congress and president passed it. Want proof? Count the number of liberals besides Greenwald presently objecting to Obama doing the very same thing they wanted Bush impeached for. You can keep one hand in your pocket.

Those few libertarians, Old Right conservatives and civil libertarian progressives who are still concerned about freedom here in the “land of the free” have to face the reality of what we’re up against. It is not a government acting against the wishes of the people. It is the people themselves, who have traded liberty for security, whether personal or economic, at every opportunity.

As James Madison said, “Democracy is the most vile form of government.”

Libertarianism, anyone?

Tom Mullen is the author of A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.

Nullification is Constitutional

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The near-showdown in Texas did not break any new ground in the nullification debate. The Texas House of Representatives passed a law that made the touching of genitals or breasts by TSA personnel illegal and punishable by fines and imprisonment. The federal government responded by citing the Supremacy Clause of the U.S. Constitution, together with a threat to cancel all air travel to and from Texas if the law were passed by the Senate and signed by the governor. The Texas Senate backed down. The crisis was averted – for the moment.

For most, attention was probably focused on the threat to close down air travel. Indeed, this would have been a huge crisis, with economic ramifications far beyond Texas. However, the more important issue here is the constitutional one. The federal government states as if it were fact that under the Supremacy Clause “Texas has no authority to regulate federal agents and employees in the performance of their federal duties or to pass a statute that conflicts with federal law.” Does the Supremacy Clause really say this? Let’s take a look. It says,

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

For those not familiar with the Constitution, that’s it. There are no further provisions explaining what is meant. There is no list of definitions of the various words, as one might expect to find in a contract today. Whatever “supremacy” the federal government claims to have must be found in this one sentence.

Perhaps a fast read might lead one to believe that the last section of this clause settles the question definitively. It says that the judges in every state shall be bound be federal laws “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” End of debate, right? The Texas law conflicts with the federal law, so the federal law trumps it. This is what the federal government would like you to accept – without question.

There is only one problem for the Feds. Their interpretation of the “Supremacy Clause” is based completely on the last section of this one-sentence provision and entirely ignores the first. One would think that if they were going to cite this clause, then reading the entire sentence would be a reasonable expectation.

So what exactly is “the Supreme Law of the Land?” Any law passed by the federal government? That’s not what the Supremacy Clause says. It says that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof” shall be the supreme law of the land.

Note the word “and.” There are two separate and distinct things cited as the supreme law of the land. First, “this Constitution.” That means that the terms and conditions of the Constitution itself, together with any amendments made to it, are the supreme law of the land. Therefore, anyone violating any part of the Constitution, including its amendments, would be violating the supreme law of the land.

Next, take note of the description of the federal laws which shall possess this supremacy. They must be “pursuant to” the Constitution itself. This means that the federal law in question must have as its basis a power granted to the federal legislators. The Constitution, for the most part, grants powers rather than makes specific laws. It tells the federal government which type of laws it may pass. It may not pass any laws for which it has not been granted the necessary power to do so. To eliminate any possible confusion on this point, the framers added the Tenth Amendment. It states:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Many well-meaning citizens and not-so-well-meaning federal legislators think about the Constitution in a backwards manner. They assume that unless the Constitution forbids the federal government from exercising a particular power, then the federal government may exercise that power. Exactly the opposite is true. The starting point of ones reasoning should be that the federal government may pass no laws whatsoever. Then, Article 1 Section 8 provides the sole exceptions to that general rule. Only laws which exercise powers specifically delegated in that list may be passed.

However, the argument against the TSA does not rely upon employing this reasoning, because the activities of the TSA not only constitute powers not delegated to the federal government, but powers forbidden to the federal government by the Constitution itself. The Fourth Amendment states,

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.

One could argue that the mere presence of the word “unreasonable” is enough to prohibit the touching of genital areas during a search. If that is not unreasonable, then what is? Dissection? However, the last part of this amendment makes any debate about what is reasonable unnecessary. It says that in order for the government to conduct a search of anyone’s person, house, papers, or effects, there must be a warrant “supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

This means that the government may not search everyone who comes through an airport. In order for them to search anyone at all, there must be probable cause that the person has already committed a crime. Does this mean probable cause in the opinion of the person conducting the search? No. An impartial judge must determine that there is probable cause and issue a written order (a search warrant) confirming that probable cause and naming the specific person to be searched and the specific items that the search will be conducted to find. Only then may an officer of the federal government search an air traveler.

Therefore, the laws authorizing the TSA to search everyone who wishes to board an airplane are in direct conflict with a specific provision of the Constitution. In other words, they violate the Supreme Law of the Land.

Now, when someone breaks a law, they are subject to arrest and prosecution. That raises the question: Who has the power to arrest and prosecute federal legislators or officers who pass and enforce a federal law that violates the Supreme Law of the Land? That power is not delegated to Congress nor the Executive. The Judiciary is only empowered to hear cases arising “under the Constitution,” and to adjudicate controversies regarding “the Laws of the United States.” No one is disputing that the TSA personnel are following the federal law – it is the law itself that is disputed.

Contrary to popular belief, there is nothing in Article 3 of the Constitution that empowers the federal judiciary to decide whether or not a law is “constitutional.” They merely usurped that power early on, to the repeated and valid objections of anyone with an honest concern for liberty, beginning with Thomas Jefferson and James Madison – the latter being the man who actually drafted the Constitution in the first place! Both of these men and many others afterwards have recognized the clear absurdity of allowing any party to be a judge in its own case. That is one of the fundamental reasons cited for man leaving the state of nature and forming government in the first place.

The constitution provides clear direction on where power lies if it is not expressly delegated to the federal government – with the States or the people. The power to arrest and prosecute those who pass and carry out laws in violation of the Superme Law of the Land is not delegated to the federal government. Therefore it must reside in the States or the people. Nullification is constitutional. Let justice be done.

For more information on the history of state nullification of unconstitutional federal laws, get Tom Woods’ book, Nullification: How to Resist Federal Tyranny in the 21st Century here!

Tom Mullen is the author of Where Do Conservatives and Liberals Come From? And What Ever Happened to Life, Liberty and the Pursuit of Happiness? Part One and A Return to Common Sense: Reawakening Liberty in the Inhabitants of America.