There was a time, within living memory, when the label American was highly respected—perhaps the most respected term of nationality in the world.  Probably most Americans have yet to take note, but that is no longer the case.  A libertarian writer complains that the Boston bombers are referred to by government and media as Chechens.  No, he says, they are Americans—citizens of the United States.  I rather think the media more often err in the opposite direction, as when they refer to a swarthy Muslim terrorist as British because he holds a U.K. passport.  Chechnya is not responsible for the bombings, our writer declares; America is, and he proceeds to catalog U.S. government atrocities in the Islamic regions of the world that have created the blowback of such terrorism.  So far, so good.  In fact, he lists every crime of the federal government except the one that is most pertinent: failure to enforce sane immigration restrictions—that is, failure in the most basic function of the federal government, which is to see to the safety of the people from foreign attack.  (And that failure is a result of our rulers’ criminal cowardice in refusing to acknowledge the true nature of jihad.)

The problem is not so much that terrorists who have obtained U.S. citizenship are being labeled by their foreign origins, but that the categories of “American” and “U.S. citizen” are no longer coterminous.  Our libertarian shares the common confusion on this point, and also the common confusion that “Americans” and “the U.S. government” are the same thing.  Though American is now a term both unpopular and with little substance, U.S. citizen, it would seem, is still a powerful label—at least for the time being.

The same writer quite rightly condemns the hysterical ignorance of members of the government and public who declare that the surviving bomber is not entitled to the legal rights of one accused, but that, as a “terrorist,” he may be summarily executed.  They want to have it both ways: Make anybody an “American,” but deny him a citizen’s rights when he goes bad.  On this point, I agree with the libertarian absolutely, but for different reasons.  He appeals to the universalist idea, which he attributes to the Founding Fathers, that “all persons” are entitled to “rights.”  The Founding Fathers decreed no such thing.  “All persons” as law is an invention of the 14th Amendment, nor is it at all clear that such basic rights as are identified in that amendment are to be applied to noncitizens.  I would argue, rather, that it is not up to the federal executive to decide who is exempt from the law, especially since that federal executive has itself destroyed the meaning of citizenship.  The normal criminal law should take its course.

Since Bush minor declared the “War on Terror,” we have been on a slippery slope when seen from the viewpoint of traditional liberty.  In fact, the entire history of freedom in the Anglo-American world consists of incremental restrictions on the power of government over the individual citizen.  That some people are “terrorists” and that we are no longer permitted to make a distinction between citizen and alien does not change the fact that freedom is not a gift of government but consists in the effective binding of rulers to the law.  To put some people beyond the protection of the law is to undermine the necessary restraints on rulers.  This is why Thomas Jefferson and James Madison in 1798-1800 vigorously supported nullification of the federal Alien Act by the sovereign peoples of Kentucky and Virginia: not because they were in favor of “diversity” and wanted to protect the foreigners disadvantaged by the law, but because the federal government was on a slippery slope, assuming undelegated powers and tampering with the safeguards of liberty.  Something the Founding Fathers did believe and say: Necessity is always the plea of tyrants.

But most “Americans” now begin with the tacit assumption that the federal government has all power and bestows or withholds all liberties—an attitude offering extreme comfort to bad rulers.  There have been arguments and judicial proceedings over the question of whether the prisoners at Guantanamo and other concentration camps are entitled to the protections of the U.S. Constitution.  Or are they exempt from law because they are outside of the United States?  The discussion is pointless.  The federal government is not, contra Lincoln, an eternal, self-constituted, and self-justifying structure of power.  The government, rather, exists only as a creature of the Constitution.  The government thus can have no power that is outside of the Constitution, even when operating in a foreign post.  Rightly considered, no such power can exist.  The prisoners must be treated either as criminals or as prisoners of war, with the rules appropriate to such conditions.  To allow the government to invent a vague, extralegal category like “enemy combatants” is to undermine all law and liberty.  But, alas, whether the federal government should be a rational construction or a leviathan of force was settled long ago at Appomattox.

The response to the Boston bombing has, of course, raised apprehensions even more sinister than those considered here.  The government’s use of undeclared martial law and wholesale invasion of homes and the “lockdown” (a prison term) of innocent citizens have established perilous precedents that every real American must meet with grave concern.