Judge Andrew P. Napolitano — Natural Law as restraint against tyranny

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Judge Andrew P. Napoli­tano, once a Fox News TV show host — and now an out­spo­ken crit­ic of the US gov­ern­ment — deliv­ered a short, intrigu­ing, and, I believe, impor­tant speech at the Mis­es Insti­tute in Cos­ta Mesa, Cal­i­for­nia, on Novem­ber 8th, 2014.

Sir Thomas More

Sir Thomas More

He began by talk­ing about the ori­gins of Nat­ur­al Laws, begin­ning with this quote from Sir Thomas More’s trea­son case under Hen­ry VIII:

Some men say the earth is flat.
Some men say the earth is round.
But if it is flat, could Par­lia­ment make it round?
And if it round, could the kings com­mand flat­ten it?

More was appeal­ing to the jury of the Laws of Nature that restrain even the gov­ern­ment. This was the clas­sic Nat­ur­al Law argu­ment. More was not the orig­i­na­tor of this argu­ment; that was Saint Thomas Aquinas near­ly 800 years ago. The Eng­lish lib­er­al philoso­pher John Locke picked up on this, as did Thomas Jef­fer­son when he wrote the Dec­la­ra­tion of Inde­pen­dence, and James Madi­son when he was a Scriven­er for the US Con­sti­tu­tion.

Thomas Jefferson’s ver­sion of More’s phrase — “We are endowed by our cre­ator with cer­tain inalien­able rights and among these are life, lib­er­ty, and the pur­suit of hap­pi­ness” — artic­u­lates the view that our rights come from our human­i­ty.

Napoli­tano asks: What are these rights that come from human­i­ty? And how can the gov­ern­ment tram­ple them? The con­cept of Nat­ur­al Rights artic­u­lat­ed by Aquinas is that there are areas of human behav­ior for which we do not need a gov­ern­ment per­mis­sion slip in order to make free choic­es. Things like free­dom to devel­op your own per­son­al­i­ty, to think as you wish, to say what you think, the right to wor­ship or not to wor­ship, to assem­ble in groups or to refuse to assem­ble, to peti­tion the gov­ern­ment for redress of your dif­fer­ences, and the right to defend your­self against tyrants. These are the quin­tes­sen­tial ‘Amer­i­can rights’. The right to be left alone, for exam­ple, cod­i­fied in the Fourth Amend­ment today is called the ‘right to pri­va­cy’.

St. Thomas Aquinas, fresco by Fra Angelico, 1447–51

St. Thomas Aquinas, fres­co by Fra Angeli­co, 1447–51

Napoli­tano answers with the the­o­ry that we have sur­ren­dered some of our rights to the gov­ern­ment so that the gov­ern­ment will pro­tect the rights that we have not sur­ren­dered. The idea is that the gov­ern­ment derives its pow­er from the con­sent of the gov­erned. He argues that no one is alive today that con­sent­ed when the Con­sti­tu­tion was enact­ed, there­fore it is a fic­tion. The fic­tion is that we con­sent­ed to sur­ren­der our rights where in real­i­ty our rights have been stolen from us through the use of force.

He goes on to explain the the­o­ry that what was sur­ren­dered to the gov­ern­ment was lim­it­ed to 16 dis­crete, unique, sep­a­rate­ly stat­ed and artic­u­lat­ed pow­ers in the Con­sti­tu­tion. The 9th Amend­ment says that just because we’ve list­ed a bunch of rights in the first 8, there are many oth­ers and it would be impos­si­ble to list them all. Then the 10th Amend­ment explains that just because we’ve giv­en some pow­er to the Fed­er­al Gov­ern­ment — we the states — that doesn’t mean we’ve giv­en them all pow­er. That is the con­cept of lim­it­ed gov­ern­ment. The gov­ern­ment must stop when it wants to touch our Nat­ur­al Rights.

An exam­ple Napoli­tano gives is the fin­gers on his hand: “They belong to me. They can­not be tak­en away by major­i­ty vote or by leg­is­la­tion or by the com­man­der of the Exec­u­tive. They can only be tak­en away if I give them up myself. Such is the case if you rob a bank: you vio­late the Nat­ur­al Rights of the depos­i­tors. You can then be pros­e­cut­ed and have your free­dom of move­ment tak­en away because you sur­ren­dered your Nat­ur­al Rights by rob­bing a bank.”

So you can vol­un­tar­i­ly sur­ren­der your own Nat­ur­al Rights but you can’t sur­ren­der some­body else’s Nat­ur­al Rights because they are owned by the indi­vid­ual. Not col­lec­tive­ly, not by groups nor gov­ern­ment, but by indi­vid­u­als. That was the the­o­ry of the Dec­la­ra­tion of Inde­pen­dence, the Con­sti­tu­tion and the found­ing gen­er­a­tion of the Unit­ed States of Amer­i­ca. Regret­tably it is no longer the the­o­ry today.

Napoli­tano goes on to state that today the gov­ern­ment, to which none of us has con­sent­ed, claims it has the author­i­ty by major­i­ty vote to assault those lib­er­ties that are a part of our human­i­ty. He argues that our Nat­ur­al Rights are ours and not the government’s to be tak­en away. The Con­sti­tu­tion was writ­ten to pre­vent the gov­ern­ment from doing that except by due process. Due process means if I rob a bank and they want to take away my free­dom, they have to give me a jury tri­al and the full panoply of pro­tec­tions that come with it.

Nat­ur­al Rights can be sum­ma­rized in four words: the pre­sump­tion of lib­er­ty. This means we are self-direct­ed. We make our own choic­es. It is not our oblig­a­tion to prove we are unwor­thy of incar­cer­a­tion. It is the government’s pro­found, unique oblig­a­tion to prove that we are wor­thy of incar­cer­a­tion and it must do so before a jury of our peers. Napoli­tano agrees that it is an imper­fect sys­tem but that is the best sys­tem that we can come up with.

The pre­sump­tion of lib­er­ty, Napoli­tano explains, is that the rights we did not sur­ren­der to the gov­ern­ment are retained for our­selves. They can­not be tak­en away by pop­u­lar vote or a major­i­ty in the leg­is­la­ture or a com­mand by a gov­er­nor or a pres­i­dent.

He rais­es the ques­tion: Is there any legit­i­mate activ­i­ty gov­ern­ment has in a free soci­ety? The answer is yes. To pro­tect the Nat­ur­al Rights of the peo­ple in that soci­ety. Mean­ing, instead of assault­ing my free­dom, my life, my lib­er­ty, and my prop­er­ty, the gov­ern­ment should be pro­tect­ing it!

Napoli­tano warns that we need to under­stand the force of dark­ness which is the very gov­ern­ment we have elect­ed and empow­ered to impose the dark­ness upon us. The bet­ter we under­stand it, the more we under­stand it, the soon­er we can be free from its shack­les.

He con­cludes his speech with a dire mes­sage for young peo­ple:

Some of you must be pre­pared to die in a gov­ern­ment prison and some of you must be pre­pared to die in a gov­ern­ment town square to the sound of gov­ern­ment trum­pets blar­ing. When the time comes, you will know what to do because free­dom lies in everyone’s heart, but it must do more than just lie there.”

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