It Is Dangerous to Be Right When the Government Is Wrong

by Andrew P. Napolitano

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  Once these [natural] rights are identified, it is a somewhat, but not entirely, separate matter of institutional design to see how they can best be protected in a world in which others are more than willing, if given half a chance, to interfere with the well-being of others. . . . Natural rights, therefore, do not enforce themselves. They are rather a mode of normative analysis used to evaluate and critique the positive law that is needed to reinforce them.5

  The proper role, then, for human law is to extend those natural rights into workable legal standards. After all, we live in an extraordinarily complex world, and it is not always obvious how natural rights, such as the right to order one’s personal life, apply to new and controversial questions, such as euthanasia or net neutrality. Moreover, although there may be a natural right to enter into contracts on one’s own terms, there is an important role for laws which require that contracts take a certain form before they can be enforced (so as to minimize the possibility of fraud). Although one may intuit that the right to enter into contracts protects the ability of parties to enter into contracts without their signatures, legislatures are well justified in promulgating a law that such agreements will not be enforced. Thus, we can see that man-made law must not only respect, but preserve, protect, defend, and actually serve our Natural Rights.

  Because human suffering results when man-made laws conflict with the Natural Law, and the very purpose of man-made law is to enforce Natural Rights, human laws are only valid to the extent that they uphold the Natural Law. Aquinas noted that “every human law has just so much of the nature of law, as it is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law.”6 As we shall discuss below, one Supreme Court justice even saw fit to distinguish between acts and laws: Acts are commands which come from our politicians, and cannot be considered laws unless they comport with the Natural Law.

  One might well question what is meant by valid. After all, we will most likely obey a law regardless of whether it comports with the natural law, so long as the consequence of disobeying that law is punishment. By imposing a requirement of validity, we ensure that our government is constrained by the Natural Law. Could our politicians, practically speaking, pass laws which violate the Constitution? Of course, as is frequently the case. But central to the Natural Law and to the Constitution itself is the belief, held by the people and our judges, that such laws are not valid and should be struck down. So, too, the Natural Law, like the Constitution, will only constrain our government if there are those among us who hold it accountable to the Natural Law.

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  If there is any message that I hope to communicate in this book, it is that all of us should be constantly questioning the validity of our officials’ commands. If they violate the Natural Law, then we must do everything in our power to right their wrongs and restore our freedom; at the simplest, it will entail voting them out of office; at the most extreme, it will mean abolishing that government altogether.

  The importance of questioning the validity of Human Law can be seen in the American civil rights movement. Racially discriminatory laws were, of course, often obeyed, because the consequences of not doing so was imprisonment and police brutality. However, civil rights activists, including the Reverend Dr. Martin Luther King Jr., knew that those laws did not comport with the Natural Law, and thus if African Americans were ever truly to be free, they must do everything in their power to have those laws repealed:

  When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men, yes, black men as well as white men, would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness. . . . Instead of honoring this sacred obligation, America has given the Negro people a bad check, a check which has come back marked “insufficient funds.” But we refuse to believe that the bank of justice is bankrupt. . . . I have a dream that one day this nation will rise up and live out the true meaning of its creed: “We shall hold these truths to be self-evident: that all men are created equal.”7

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  Dr. King recognized that those laws were not just bad or unwise, but illegitimate because they violated the fundamental truths of the Natural Law. Civil rights were not mere political rights which could be granted or taken away as government saw fit; rather, since they come from our humanity, they relied upon nothing from the government for their existence. As we shall now explore, and as noted by Dr. King, this scheme of Natural Law was adopted by our Founders and enshrined in the Declaration of Independence and the Constitution.

  The Promise of Freedom

  Although our rights would exist even if they were not recognized by the Constitution, a scheme of Natural Rights nonetheless is enshrined in the Declaration of Independence and Constitution, and forms the basis for our entire legal system (or what our Founders intended to be our legal system). As previously noted, Jefferson specifically characterized our rights to life, liberty, and the pursuit of happiness as inalienable and self-evident. Moreover, he justified the entire American Revolutionary War as an effort to restore the protection of our Natural Rights:

  When in the Course of human Events, it becomes necessary for one People to dissolve the Political Bands which have connected them with another, and to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature’s God entitle them, a decent Respect to the Opinions of Mankind requires that they should declare the causes which impel them to the Separation.8

  Thus, the entire basis for our independence as a nation is the recognition and protection of our Natural Rights. The Founders did not believe that the tyranny of King George III was merely imprudent or unwise but, like Dr. King, found it to be illegitimate.

  In 1798, Justice Samuel Chase acknowledged the idea that government behaviors contrary to the Natural Law are invalid when he proclaimed in the famous Supreme Court case of Calder v. Bull, which addressed the applicability to state legislatures of the Constitution’s prohibition of ex post facto laws, that

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  there are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power. . . . An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority.

  Thus, government is always constrained in principle by the Natural Law— which Justice Chase called “the great first principles of the social compact.”

  Natural rights are also referenced in and protected by the Constitution. The Ninth Amendment states that “the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” What would constitute the “rights . . . retained by the people,” if not Natural Rights? By proclaiming that those rights are retained, the text of the Constitution expressly rejects the philosophy of Positivism: Because those unenumerated rights remain with individual human beings, Congress and the president cannot take them away by enacting a law or issuing a command to that effect.

  Moreover, since the Bill of Rights constrains the federal government, the Fourteenth Amendment protects individuals from similar encroachments of our Natural Rights by the States: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” What would be the privileges or immunities of American citizens, if not our Natural Rights? After all, the amendment does not say, “The enumerated rights in the Bill of Rights shall apply to the States.” Thus, states are constrained by more than just those rights expressly listed in the Constitution, but also by those natural rights which are not easily identified and listed. We explore a method for enforcing those rights elsewhere in the book in the ch
apter called “When the Devil Turns Round on You: The Right to Fairness from the Government.” Why the Fourteenth Amendment refers to privileges and immunities instead of rights is an interesting story, but it is of no semantic significance.

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  Dr. King, in his “I Have a Dream” speech, referred to the protection of Natural Rights as the promise made by our Founders to the American people. Proponents of Positivism must coherently argue why we should now uproot the entire basis for our independence and default on that promise. As we shall now see, they have not been able to make the argument coherently, but they have profoundly uprooted the basis of our independence with their material assaults on the Natural Law.

  Positivism

  Positivism teaches that law is whatever is affirmatively put forward by human lawmakers. To a Positivist, the law is whatever the lawgiver/lawmaker says it is. Consequentially, under Positivism all of our rights are granted to us by the government, and they can be taken away at the discretion of the government. The central feature of Positivism is that an act is considered a law simply if it was lawfully enacted and is enforceable. In other words, laws are those commands which people can be coerced into obeying. Thus, Positivists would contend that Hitler’s Final Solution, regardless of its morality, can be described as law. By contrast, Positivists expressly disclaim that there is any “higher law” with which human law must conform if it is to be truly considered a law. As discussed earlier, Positivism can be a very tempting legal philosophy, given that if government systematically disparages our rights, then as a practical matter it appears as if we do not in fact possess those rights. It is also tempting because, in a free society, whether a democracy or a republic, the majority in the government, the majority of those who write the law, have their way with no constraints. “The majority rules” is a popular, populist, and Positivistic taunt. It is also destructive of freedom.

  Why did Positivism develop as a legal philosophy? After all, legal philosophies typically arise in response to a particular situation, just as Natural Law developed during a period of Absolutism, when it was believed that kings were divine, and thus they and their commands were superior to their subjects; during such times of tyranny, the inherent truth of the Natural Law is at its most obvious. Professor Barnett notes that we can literally see the truth of the Natural Law by observing the direction in which refugees travel—toward freedom, and away from oppression.

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  Positivism is said to accomplish two objectives; the first is that law is “written,” and thus, persons do not have to worry about being surprised by unwritten legal obligations binding upon them. Positivists fear that judges who simply disagree with the collective judgment of the people may strike such laws down under the auspices of the Natural Law. If we are to err to any side, it should be the collective knowledge and experience of we the people, not judges. It is for this second reason, as we have seen, that Positivism is described as fundamentally majoritarian. Stated differently, no matter how ill-advised, unnatural, or immoral; how unlawful, unconstitutional, or hateful; how biased, self-serving, or fraudulent; under Positivism, the majority that lawfully controls the government lawfully gets its way. This is the second objective of Positivism.

  There are, however, some problems with Positivism, several of which have already been discussed. First, Natural Law thinkers also recognize a need for written, man-made law which can provide guidance and a sense of certainty to the populace. They only pose the additional requirement that those written laws be grounded in the principles of the Natural Law.

  Second, Positivism’s emphasis on majoritarianism has proven itself to be a woefully inadequate substitute for a scheme of Natural Rights. Although the theory of Positivism allows for the promulgation of laws which favor the majority, it also facilitates the promulgation of laws which benefit a minority at the expense of the majority, as was the case for centuries with Feudalism. Thus, Positivism is contingent upon effectively functioning democratic processes; without them, Positivism collapses in on itself. Anyone discontented with lobbying practices in Washington can understand this flaw of Positivism.

  Why should the transgression of the natural rights of a minority be any less abject than doing so to a majority? After all, Jews were an ethnic minority in Germany; does that make the Holocaust any more tolerable? Because the Natural Law applies equally to individuals and minorities as well as majorities, any transgression of it is just as damaging to the immutable order of the universe. If we steal one hundred dollars instead of one million dollars, it is still theft, and a violation of another individual’s property rights.

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  As human history teaches us, many of the most egregious human rights violations have come at the hands of majorities in so-called advanced societies. Was it not a majority of white Americans which for two hundred years institutionalized slavery, the ultimate violation of Natural Rights? Even Abraham Lincoln, the so-called Great Emancipator, was not an abolitionist out of principle, but rather out of temporary military necessity to cripple the southern economy and win the Civil War. Was it not democratically elected officials who detained (Asian) Japanese American citizens during World War II, but not (Caucasian) German American citizens? Perhaps the most extreme example of the tyranny of the majority is abortion: Unborn fetuses obviously cannot partake in the political process, and therefore are, for the purposes of this discussion, a minority which has been “outvoted.” What could constitute more natural yearnings than to be born and to develop into a human being?! Nonetheless, abortion is a widely accepted practice even in those advanced societies with the greatest protections for fundamental rights.

  The requirement that law is whatever can be enforced is also imprudent, and simply untrue. In his speech to the people of London, the character V in V for Vendetta eloquently addressed the issues of truth and enforceability in the law:

  There are of course those who do not want us to speak. I suspect even now, orders are being shouted into telephones, and men with guns will soon be on their way. Why? Because while the truncheon may be used in lieu of conversation, words will always retain their power. Words offer the means to meaning, and for those who will listen, the enunciation of truth. And the truth is, there is something terribly wrong with this country, isn’t there? Cruelty and injustice, intolerance and oppression.9

  V, like our Founders and Dr. Martin Luther King Jr., recognized that the truncheon was simply not an adequate substitute for the principles of “fairness, justice, and freedom”; the enforceability of unjust laws cannot change the truth that our Natural Rights are being transgressed.

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  Conclusion

  Although we have explored at length how man-made law must be subject to the Natural Law, perhaps the best indication of the falsehood of Positivism is that, deep down, we know that the transgression of our natural rights is wrong. We do not simply disagree with it, but feel a sense of visceral outrage that one human would try to treat us as inferior and subject to his will; it is antithetical to our selfhood. Thus it is in our human nature not just to yearn for freedom, but to recognize when those yearnings are unnaturally restricted.

  Elsewhere, V referenced Thomas Jefferson when he stated that “people should not be afraid of their governments. Governments should be afraid of their people.” It should be clear that Positivism’s scheme of law relies upon the people obeying laws because they are afraid of the government, not because those laws are in accord with the Natural Law, and therefore just.

  If we are to live forever in a legal system founded on Positivism, then we can only hope that we will have laws which, coincidentally, happen to be just. But there is another way, the way of the Natural Law: Rather than be content to follow the will of the truncheon, we can choose to listen to those words which enunciate truth, and our Founders’ promise that those truths will not be denied by government.

  This book is about the titanic battle between adherents of Positivism and believers in the Natural Law; st
ated differently, between Big Government and individuals. As we shall see, the danger that befalls individuals inevitably comes from the government. The government makes it dangerous for us to be right when it is wrong.

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  Chapter 1

  Jefferson’s Masterpiece:

  The Declaration of Independence

  When I think about current mainstream sentiment, that the federal government can regulate all personal behavior, right and wrong, protect us from every catastrophe, take care of us from cradle to grave, and tax any activity, I wonder: When did Americans lose their way? How have we as Americans strayed so far away from the ideals which brought about the American Revolution? Do most Americans even know that the American Revolution was not the war for independence but instead the cause of the war for independence?

  John Adams explained in a letter to H. Niles in 1818 when he wrote, “But what do we mean by the American Revolution? Do we mean the American war? The Revolution was effected before the war commenced. The Revolution was in the minds and hearts of the people; a change in their religious sentiments of their duties and obligations.”

  What were these duties and obligations that changed in people?

  The Revolution before the Revolution

  What exactly was this Revolution that occurred in people’s minds, who started it, and when? Many people consider the British philosopher John Locke to be the grandfather of the American Revolution. Locke was the father of what was formerly called Liberalism; he was one of the most important Enlightenment thinkers, and in 1689 he published his two most influential essays entitled The Two Treatises of Government. The second of these two treatises was An Essay Concerning the True Original, Extent, and End of Civil Government.