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
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
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.”
Have a listen and tell us what you think:
